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Constitutional Process ‘open to manipulation’

ZIMBABWE’S constitution-making process is flawed as it gives parliament the final say in coming up with the supreme law, political analysts have said.

The analysts said the global political agreement (GPA) signed by President Robert Mugabe and leaders of the two MDC formations, Morgan Tsvangirai and Arthur Mutambara, takes away the power it purports to give Zimbabweans to write their constitution.

They said while a 25-member parliamentary select committee was appointed three weeks ago to spearhead the constitution-making process and will come up with subcommittees comprising civic society, business, churches and other interest groups, the process remained flawed.

The constitution-making process should be finalised in 18 months, but civic society says the process is not “people-driven”.

Parliament, the analysts said, was empowered by the GPA to amend a draft constitution that would have been agreed to by Zimbabweans through two all-stakeholders conferences and a referendum.

According to the GPA, the constitutional committee should convene an “all-stakeholders” conference within three months of its appointment.

The public consultation process, the pact reads, should be completed no later than four months after the stakeholders’ conference.

“The draft constitution shall be tabled within three months of completion of the public consultation process to a second all-stakeholders conference,” reads the GPA.

“The draft constitution and the accompanying report shall be tabled before parliament within one month of the second all-stakeholders conference,” the GPA adds.

The draft and report would then be debated and — if necessary — amended by parliament within one month, before it is gazetted and a referendum conducted within three months.

In the event that the draft is approved in the referendum, it shall be gazetted within a month of the date of the vote and should be introduced in parliament not later than a month after the expiration of a period of 30 days from the date of the gazetting.

It is during this period, the political analysts say, that Mugabe, Tsvangirai and Mutambara could manipulate parliament to amend the draft constitution to reflect their political wishes.

Mutumwa Mawere, a South African businessman, said the main issue in the country’s constitution-making process was whether parliament can be manipulated by Mugabe, Tsvangirai and Mutambara or can be trusted to be custodians of the national interest.

The experience so far, he argued, showed that parliament generally follows what the principals want done and, more importantly, the GPA effectively transferred power from legislatures to the three principals who can replace MPs without going through by-elections. 

“The three principals now control the process and any constitution that comes from this process will necessarily have to be a product of a negotiation that will exclude the people,” Mawere said.  “The strong-man syndrome inherent in post-colonial Zimbabwean politics makes it difficult for anyone in the state system to challenge the strong man at the top even when it is obvious that such challenge is in the best interests of the country.”

He said Lovemore Madhuku and his National Constitutional Assembly (NCA) were correct that the constitution-making process was not people-driven though it would be spearheaded by parliamentarians elected by the people.

Mawere argued that once elected, MPs cease to represent the wishes of the people who elected them, but instead promote the whims of “those they seek promotion from to cabinet or other state” positions. 

“Given the level of political and financial literacy, citizens have no control of their representatives in the state,” he averred.  “The president or the head of government has more control of parliament to make any outcome of a parliamentary process credible.”

UK-based Zimbabwe lawyer and newspaper columnist Alex Magaisa said it was ironic that even the Constitutional Commission of 1999 was more representative than the present select committee.
He suggested that the committee was “simply a veil” behind which lies the Kariba draft constitution crafted by Zanu PF and the two MDCs.

“If it is (a veil), as some suspect, then it’s very unfortunate,” Magaisa said. “With politicians, you never quite know and that’s why even though it might appear monotonous and irritating to some, the voices of Madhuku and others still need to be heard and respected, not vilified and dismissed as we have seen lately.”     

However, he said it would be ill advised for the NCA and other civic bodies to take a “bold and inflexible” stance that they would campaign for a no vote against a constitution to be drafted through the select committee.

“My advice is that they should participate on a ‘without-prejudice’ basis, in other words they can always participate under protest and exercise their right to oppose the product should they deem it to be unrepresentative of the wishes of the people,” he suggested.

According to the NCA, citizens must author the basic law of the country and must exercise their right directly and not through their elected representative in parliament.

“How precisely this should be done is not clear,” said political scientist Michael Mhike.  “However, what is clear is that anyone who advocates the notion of a people-driven constitution must necessarily hold the current constitutional order in contempt and more importantly does not recognise the legitimacy of the current crop of legislators.”

He said given the fact that the legislators were elected and are constitutionally empowered to make laws including amendments to the constitution, it may not be evident why the NCA would seek to go directly to the people in drafting a new constitution. 

“What has been argued is that the constitution of Zimbabwe needs a total overhaul and such a task cannot be trusted to the representatives of political parties who may look at the world in partisan terms rather than national terms,” Mhike said. “Therefore, when one talks of a people-driven constitution one is effectively talking of a constitution that carries the wishes of the people directly both in terms of its crafting and its implementation.  In making this case, one is affirming the principle that sovereignty is ultimately directly vested in the citizens.”

However, he said, any alternative to the select committee may not produce any better outcome than the wishes of the counter-elites who may use civic organisations to pursue their own agendas with minimum or no accountability. 

“Many of the players who advocate a people-driven constitution-making process may not be immune from the very criticism that is levelled against parliamentarians,” Mhike argued. “They also are not accountable and in many cases they are funded from without and look to donors rather than the people they purport to represent for guidance and direction.”

He said either way citizens would pay the price and invariably surrender their future to players who may be motivated by personal rather than national interests.

The analysts were agreed that 18 months was long enough to come up with a credible constitution.

“A new constitution will definitely be on the cards and a draft (the Kariba draft) is already in place and the fact that the three principals have already agreed to it suggests that this may not be a problem,” Mawere said.  “What may be a problem is that the three principals may either find a way as Zanu PF and PF Zapu did to co-exist and continue to govern as an inclusive formation for a period longer than the 18 months.” 


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