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Exercise vigilance in new constitution

THE public provincial consultative hearings for the crafting of a new constitution started on Monday amid contestations between political parties, civil organisations and other stakeholders on how best the supreme law should be drafted.

The hearings, which will culminate in the national stakeholders conference on July 10, are expected to draw 5 000 participants, began as expected with many people questioning the wisdom of embarking on a constitution-making process driven by a 25-member parliamentary select committee and on the efficacy of prioritising the process when the government is battling to stabilise the economy and provide food to the people.

Opponents of the process –– led by the National Constitutional Assembly (NCA) –– have dismissed it as antithetical to a people-driven process and have vowed to campaign against it.
They perceive the constitution-making process as a political tool aimed at capturing the needs and wants of the three parties to the Global Political Agreement inked last September. This, they argue, will culminate in a constitution that lacks “constitutionalism”.
Many debates have taken place on what procedure should be followed in coming up with a democratic constitution and on how to define a people-driven process.
While the concerns of the NCA and other interest groups are understandable, it was and it is still ill-advised on their part to take a bold and inflexible stance at this early stage by insisting they will de-campaign the current process.
Recently, a newspaper columnist Alex Magaisa advised that the NCA should participate in the constitution-making process on a “without prejudice” basis.
This means they can always participate under protest and exercise their right to oppose the final product should they deem it to be unrepresentative of the “wishes of the people”.
“I agree absolutely that the process is important, but so is the product. For me the devil is in the detail,” Magaisa said.
“They can spend hours and weeks consulting the people but at the end of the day, all those views must be reduced to the written word. It is at that point where vigilance will become very necessary.
“The other thing is that we must appreciate that there can be no perfect constitution. Yes, we must strive for perfection but the result can never be. It does not require a rocket scientist or a n’anga to throw bones to predict that some people will be unhappy with the final product. Some delude themselves by thinking that constitution-making is not political. Well, it is!”
So whilst we can have politicians leading the process through parliament, we have to remain vigilant because it is in the nature of man to do that which favours him most.
What the NCA and other civic organisations should do is to guard against the monopolisation of the process by the parliamentary select committee.
But the question of what a people-driven constitution-making process really is remains unanswered.
A “people-driven” constitution-making is a commonly used phrase that means many things to many people and unless it is concretised, it is meaningless rhetoric.
What it symbolises to me is a constitution that is created through active involvement and participation of members of the public.
Ultimately, however, the actual process has to be led by someone or more appropriately, by a selected committee. To be truly representative, this committee must comprise people who have been nominated by key stakeholders, among others, parliament, civil society organisations, the business community and others.
Second, the process must begin with extensive consultation –– the committee must draw up a consultation paper, which raises issues, makes proposals, etc, which is then put forward to the public for robust debate and analysis. The responses of the public must be collated, analysed and given legal form.
The committee must then report back to the public, setting forth their findings and calling on the public to comment on whether or not their representations are properly reflected in the draft constitution.
These representations, if any, must be taken into account in preparing the final document which should then be put forward to a referendum where the people will make the final decision.
After that, parliament’s role must only be to endorse and give legal status to the constitution via the stated procedures but at no point after the people have decided at the referendum should the constitution be changed by parliament. If that must be done, it should always be with the consent of the people.
Zimbabweans must thus resist clauses or a framework which allows for parliament or anybody else to amend the constitution without prior approval otherwise the whole process of making the constitution is rendered useless if parliament can easily change the document.
These elements, for me, constitute the key aspects of what constitutes a people-driven constitution.
People must not only be involved in making it, it must be seen that they are involved and they must feel that they are involved.


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