Candid Comment: Form and content in ‘new’ constitution

NCA chairman Lovemore Madhuku’s article last week focused chiefly on the definition of a constitution. He promised to explain this week a “people-driven” constitution-making process.


My observation on the second point is that either Madhuku has a contract with all who can explain the concept “people-driven” not to write, in which case they are stifling debate, or he is the only one who can do so, which renders it a valueless novelty.

On the definition, Madhuku gives us traditional concepts used in every modern constitution so that it’s hard to tell what would make Zimbabwe’s supreme law unique.

He says the “purpose of a good constitution is to entrench strict controls on the exercise of power”. In other words, to prevent the abuse of power. This is not a revelation. It means our basic law can be an amalgam of existing laws or drafts without the need for an expensive survey.

What is needed is transparency on the draft(s) to be used. The secrecy around the Kariba draft has created a lot of suspicion about government’s intentions instead of eliciting constructive debate.

People should be able to add or subtract to the draft as informed by their objective experiences. This will enrich the debate better than the gathering of raw data. Zimbabwe is not seeking to reinvent the wheel.

Madhuku will admit that a constitution cannot be a reproduction of raw passions. In the end technocrats will reduce it to a schema before it is signed into law.

This is the argument: We have been too long in the cold and have agreed we need a good house. We have a ground and a selection of houses to which we can make alterations and combinations to satisfy our peculiar wants. The debate is whether to buy a house or to build from scratch.

The universal question is: “How do you wish to be governed?” Millions of people and hundreds of nations have answered it for us over the centuries it is extravagant of us to spend resources researching it. Yet Madhuku reverts to architectural aesthetics to ask: “What is the most appropriate and legitimate way of making a democratic constitution?”

 
This is superfluous. It makes building the house an end in itself. Is the aim to consult everybody or to consult in such a way that the outcome is acceptable to the majority? It is naïve to expect total consensus so long as man can think.

Often supporters of a football team will disagree with the coach’s team selection but once the team wins the majority are happy. There will be spoilers who want their favourite player in the team regardless of victory –– the purpose of the match. If Bullet Hed had been in the game the scoreline would have been six instead of four goals!

Do you want to drive a beautiful car or do you want to drive only the one you have manufactured? The objective is to hold political leaders to account and stop the abuse of power, not who or how the law was formulated? It would be sad if Madhuku were to expend his constitutional expertise on casuistry about processes instead of enlightening the nation on various provisions in the draft.

Madhuku makes his argument fatally flawed by seeking to use the outcome of the referendum to fortify his position. The premise is that if he wins then he is right and the reverse for Zanu PF and the MDC.
This is to conflate legitimacy with right.

I would agree with Madhuku if he said it was wrong for parliament to set up a select committee to spearhead the constitution-making process and then vest it with veto power on what is a good constitution.

That is wrong. It contaminates the result by usurping sovereignty from the people to decide how they want to be ruled. Government cannot be allowed to make laws on how it should rule.

What is needed is an independent body which can win the trust of the majority to consult on the draft. Such a body must be seized by Zimbabwe’s historical and cultural sensibility, guided in its task by what Thomas Paine calls a “sense and interest of country”.

Madhuku says a good constitution (house) “must enshrine values which guide and bind existing and future generations”. Thomas Paine responds in Rights of Man: “Every age and generation must be free to act for itself, in all cases, as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.”

What should distinguish a Zimbabwean constitution from any other is the national ethos, the defining spirit at a particular historical juncture. One cannot, for instance, talk about a new constitution for Zimbabwe without giving prominence to land.

Similarly, Zimbabweans’ perception of presidential power and term-limits is influenced by their present and past experience. But that doesn’t call for a new survey on constitution-making.

Madhuku’s un-intellectual decision to appeal to the popular vote in a referendum preempts and forecloses all dialogue because ultimately it debases the discourse to a binary campaign for or against the draft constitution. What is needed is open debate on the draft before us whether done in Kariba or by the NCA.

People need to be informed. The objective is to come up with the best constitution for our era, not to win the yes or no vote!

In debating a “new” constitution, let us heed Paine’s caveat that “when public matters are open to debate and the public judgement free, it will not decide wrong, unless it decides too hastily”. We need time.
This challenges the tyrannical timelines imposed by the GPA. Do these deadlines serve the “sense and interest” of the nation? Was man made for the Sabbath or the Sabbath for man?

Read Nyathi in newzimbabwe.com blog.

BY JORAM NYATHI

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