Past Abuses Should Guide Constitution-making

ZIMBABWE’S new constitution should, as a starting point, take cognisance of past abuses by the Zanu PF government and institute provisions to right such abuses.

The writing of a new constitution is usually motivated by a perceived sense of injustice and to make a break with the past.

 The excesses of the Bourbon King Louis XVI and his Queen Marie-Antoinette precipitated the French Revolution of 1789 and the attendant Declaration of the Rights of Man.
 In 1776, the 13 American colonies rebelled against taxation imposed by King George III of England which resulted in the United States Constitution adopted in 1787 by the Constitutional Convention at Philadelphia.
Closer to home, the injustices, inequities and oppression of the apartheid architects resulted in the democratic Constitution of South Africa in 1996.
In Zimbabwe, a good starting point in drafting the basic law of the land should be the Gukurahundi genocide in the 1980s, the usurpation of executive power by the then Prime Minister Robert Mugabe that resulted in the executive presidency in 1987, Operation Murambatsvina in 2005 and, more recently, the coup d’etat by stealth that was executed by the securocrats in the Joint Operations Command.
 A basic law should take cognisance of such abuses and put in place a constitution with the necessary checks and balances. Whether a presidential system or the Westminster model is appropriate should be left to the people to decide.
 There might even be a hybrid presidential/prime ministerial system as that which obtains in France. But, nonetheless, whatever model is adopted, there should obviously be term limits for the life of parliament. The president/prime minister should preferably serve a maximum two terms. This would prevent a repeat of the gerontocracy now running the show.
 A clear and defined separation of powers between the three branches of government is a prerequisite. Of particular significance is the independence of the judicial branch of government to check on the excesses of the executive.
 The judicial branch of government must be financially independent; this is to avoid the humiliation of judicial officers accepting “donations” from powerful politicians from the other branches of government. What springs to mind are the recent donations of plasma TVs, farms and other favours to judicial officers — a toxic situation that has done so much damage in eroding public confidence in the delivery of justice and brought into question the independence and impartiality of the judicial arm of government.
 An appointment to judicial office must be through an independent commission and removal from office must require the sitting of parliament. This is a remedy to avoid the forced resignations of judicial officers who were perceived as opponents of Zanu PF kleptocracy.
The forced resignations of Chief Justice Anthony Gubbay in 2001, Judge Blackie in 2002 and Justice Paradza in 2003 are cases in point.
Defence forces personnel must be made to declare an oath to serve and defend the Constitution of Zimbabwe. Officer education at both the Zimbabwe Military Academy and the Defence Forces College must be broadened to encompass aspects on democratic governance, constitutional as well as humanitarian law and the theory of government.
 There is already a precedent for such an undertaking …  officers in the South African National Defence Forces undertake a four-year Bachelor of Military Science degree at the Saldanha Bay Military Academy offered in conjunction with the University of Stellenbosch. This is to avert senior officers pledging their eternal loyalty “North Korean style” to politicians whom the electorate has deemed beyond their sell-by date.
 Had the military leaders known that their job is to defend the Zimbabwean Constitution, they would have accepted a smooth transfer of power to the opposition as early as 2002. US-style confirmation hearings should be carried out where senior officers are up for promotion, preferably by a bi-partisan Parliamentary Committee on Defence.
Where abuses of the past have to inform constitution-making is in the area of rights accorded to the citizen.
A Bill of Rights must ordinarily recognise freedom of personality, belief, expression, assembly, movement, occupation, property rights and most important of all there should be protection from unauthorised search and seizure.
The infamous abduction of the human rights activist, Jestina Mukoko and her colleagues necessitates the inclusion of a “freedom and security of the person provision” as found in S 12 of the Bill of Rights in the Constitution of South Africa. Allied to this might be the inclusion of a due process of law requirement.
 The recent reports in the press of police instructors at Morris Depot abusing police cadets warrants the inclusion of a prohibition on “torture, inhuman or degrading treatment or unusual punishment(s)”, more or less along the lines of Article 3 of the European Convention of Human Rights and Fundamental Freedoms.
 The Constitution of South Africa recognizes this, in S 10 of the Bill Of Rights, as a question of human dignity . . . “everyone has inherent dignity and the right to have their dignity respected and protected. ”
The sense of freedom, as Isaiah Berlin once said, “entails not simply the absence of frustration but the absence of obstacles to possible choices and activities”. To this end, a Bill of Rights has to recognise freedom of movement and residence.
 Zanu PF in the past 29 years has systematically denied the opposition space to engage in lawful political activities. This should be enshrined in a Bill of Rights in the form of a right to freedom of peaceful assembly and association with others. This might be accompanied, as in S 19 of the Bill of Rights in the South African Constitution, by detailed political rights such as the right to form a political party, right to elect one’s representatives and to stand for public office.
The law has been used to harass and arrest political opponents and human rights activists. One is reminded of the recent cases concerning Andrisson Manyere, Ghandi Mudzingwa and the arrest of the two scribes from the Zimbabwe Independent. Due process of law requires that anyone charged with a criminal offence has the right to know the nature and cause of the accusation against him/her, adequate time and facilities for preparation of defence and access to legal representation and to be brought before a competent court of law within reasonable time, say 48 hours as stipulated by S 35 of the Bill of Rights in the South African Constitution.
 Under such a regime, we would not find innocent people incarcerated for indeterminate lengths of time at the whim of biased and vindictive politicians such as the openly partisan Attorney-General, Johannes Tomana.
To avert abuses like Operation Murambatsvina in 2005, a Bill of Rights has to recognise the right to housing or in some sense private and family life. The media landscape of the past 29 years has a litany of repressive laws and forced closures of newspapers such as the Daily News in 2003.
 A Bill of Rights has to start by recognising that everyone has the right to freedom of expression. This right might be by paraphrasing Article 10 of the European Convention of Human Rights and Fundamental Freedoms as a “right to hold, receive and impart information and ideas without interference by the State”.
 By paraphrasing jurisprudence of European origin, I lay myself open to charges of Euro-centrism and obviously Zanu PF apparatchiks will point out that this has nothing to do with an African country. Article 15 of the Bill of Rights of the Constitution of South Africa is drafted in more or less the same terms and has resonance to the experiences of Zimbabweans.
The selective application of the law as witnessed immediately after last year’s election, the victimisation of unpopular minorities such as white commercial farmers for the past 10 years and citizens in south western Zimbabwe immediately after Independence in 1980 calls for equality before the law and the right to just and administrative action.
 Selective application of the law has resulted in openly racist and tribal policies by the Zanu PF government. Cultural and as well as linguistic minorities must be afforded constitutional protection. This might have averted the cronyism and patronage that has been, and in some instances still is, the hallmark of Zanu PF misrule.
 Food security might be elevated to the status of a fundamental freedom. This is of particular significance in the light of past abuses of food aid by the Zanu Pf government as a campaign tool and outright victimisation of opposition supporters through denial of food aid.  It is ironic that a white supremacist government was superseded by a black supremacist one.
Such abuses cannot be stopped by a simple laundry list of rights; these rights need institutions built into the constitution to support democracy. These might be along the lines of a Human Rights Commission, Independent Electoral Commission and a Media Commission.
 For these institutions to support governance, accountability and democracy, there ought to be statutory guarantees of their independence from both the executive and parliament, a system of funding independent of direct ministerial control, independent staffing arrangements, statutory involvement of a parliamentary body in approving and overseeing its budget and strategic plan, parliamentary involvement in key appointments and lastly direct reporting to Parliament.
However, there might be instances where the state might be justified to derogate from some of these rights and this might be spelt out in the basic document. It is nonetheless, submitted that equality, human dignity, life (what is Paradzayi Zimondi doing when the prison services are turning prisons into death factories?), freedom of security of the person, both natural and juristic, ie companies; are values that the state might no be justified in derogating from. Whatever justification the state might advance to derogate from the second tier rights, those deemed capable of being derogated from must be justified in a competent court of law.
As a bulwark against abuses that have been visited against the ordinary Zimbabwean citizen by the agents of the state, judicial officers might be given powers to review actions and decisions that violate these rights.
 Section 39 of the Bill of Rights in the South African Constitution gives ordinary citizens who have been wronged “to approach a competent court … and the court may grant appropriate relief …”
 What is now termed the Supreme Court might be elevated into a Constitutional Court with powers to declare legislative enactments unconstitutional where they violate the fundamental rights. This would solve the conundrum where we have repressive enactments such as the medial law — the brilliantly misnamed Access to Information and Protection of Privacy Act 2002.
This article is not intended as prescriptive but only serves as a basis for an open and honest debate on constitutional reform in Zimbabwe.
Francois Maimona is a trainee lawyer based in Leeds.