Constitution-making: The People’s Wishes Must Prevail

WHETHER the Maputo talks bring some progress on the GPA issues or not, 29/11 will be a date worth remembering.

Coming soon, Sunday, November 29 will mark the end of a lost decade.

Ten wasted years. Ten years since the day when the President’s Constitutional Commission of 1999 gave him its report (which was never published) called What the People Said, and their Draft Constitution ignoring obvious key elements of that report. This in turn led to the No vote in the 2000 Referendum.

What the People Said is incontrovertible proof that an official team, composed of 150 lawmakers and about 250 others may well hear and record what Zimbabwe’s people want in their constitution — yet still not listen to them.

Its 10th anniversary approaches as a new team, picked by parliament this time, finally prepares to start its outreach programme, aiming to ask Zimbabweans again what they want in their supreme law.

The anniversary approaches while we are at risk of suffering the same mistake.

The 2008 GPA admits the right to write the constitution vests in the people yet gives MPs the final word on a draft for a 2010 referendum. It makes no promise that MPs will listen to the people — and it strangely lacks any promise by the parties and principals in our legislature to later enact any draft we may approve.

Since it was signed we have instead had worrying statements by a co-chair in the parliamentary committee and other MPs, suggesting our lawmakers will enact into law only what they like themselves.
So if we say again, as we did in 1999, that we only want 15 Cabinet members, but they maybe want 65, some have already told us they will do as they please.

There’s little point in speaking again if we don’t have enough legislators ready to listen.

Then there is the “small” problem too that someone chopped out all reference to the MPs’ process for writing a new draft constitution and to the 2010 referendum from a Bill for the 19th Amendment, which all parties and Sadc had agreed on and MPs had passed, before the Bill got its presidential assent — without asking MPs to approve such changes first.

That has left Zimbabwe’s president still able to decide under statutory powers if any second constitutional referendum will be held at all, and if so, when, and what question he will put to the people.

Given his public statements, the incumbent’s chosen question for us in 2010 may well be “Will you swallow the Kariba Draft?” His signature on the whole agreed Bill is a GPA requirement, which MDC wanted Sadc to insist on in Maputo.  While this is being withheld, there are problems with government legality and legitimacy — and the whole process to get a new constitution depends on the will of just one man.

Can we justify spending any time and money on a fresh round of consultations if the people’s wisdom is likely to be ignored again? Can we at least be given first some undertaking by all involved that this time they will heed us?

Reminded that what the people said was ignored before, our present lawmakers and their team may opt to reassure the public. As they begin their outreach they may quickly and usefully volunteer to make a public pledge to listen.

If they do not volunteer, shouldn’t taxpayers and others funding this outreach ask for that public promise first — perhaps taking 29/11 as a deadline to judge the ultimate intentions of the new team, and all the GPA principals?

Maybe calling 29/11 now our “listen — lalela— terera” day?

If those now entrusted with writing the constitution will not even promise us that all of them, or two-thirds of MPs at least, will listen this time to what we say, what can we expect from them next year?
Is it worth talking to lawmakers who admit no duty to abide by our wishes, or to a team if it is reluctant to accept that their responsibility is to at least listen?

We can only guess how different our history might have been had our last group of constitution-writers heeded more carefully what they reported citizens wanted in What the People Said.

Our current constitution is many years past its sell-by date. If we consider what the lost decade has cost in human and economic terms, we clearly cannot afford to lose another decade before we get the institutional reforms requested in 1999 and probably still wanted now by most Zimbabweans.

We have to take note of the lessons of 29/11/1999, and do everything possible now to ensure we do not give a new group licence to ignore our views on the constitution again.

Is there benefit in asking for public pledges to listen — lalela — terera by 29/11?

Yes. Pledges on paper are harder for leaders and others to break later.

And any refusal to give them puts us, and neighbours, on our guard again.

Surely it’s time for all of us to be as pro-active as possible rather than re-active in trying to deal with our ongoing “challenges” here?

Sheila Jarvis is a Harare-based legal practitioner.

By Sheila Jarvis

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