THE constitution-making process will soon go a gear up with the commencement of the outreach programme to gather views of the people on the supreme law they want.
So, worrying before the programme is the disclosure by the Constitution Parliamentary Select Committee (Copac) that it would come up with talking points to guide the solicitation of the people’s views.
It is a crass violation of the right of the people to freely express their views and is antithetical to democratic practice when you draw up a boundary within which the new constitution should be crafted.
Under such a process, constitutionalism is sacrificed in advancement of constitutionality.
A cursory look at how Copac phrased some of the talking points, for example on the arms of state (principles on the separation of powers), reveals how the select committee intends to manipulate the views-gathering process.
Instead of asking the people the kind of executive they need, Copac has come up with questions like who should be the head of state? Do we need an executive president or prime minister? Should the head of state be the head of cabinet, judiciary and parliament? And, should there be mechanisms for recalling the head of state/prime minister?
The problem with questions of that nature is that they do not give the people the chance to freely express their dreams and aspirations on the new constitution as they are confined to answer to only defined talking points.
It is the alienable right of the people to write a constitution for themselves and the process in any constitution-making exercise should be transparent if a country is to come up with a valuable supreme law.
The rejection of the 2000 government-sponsored draft constitution was a testimony that the process in crafting the blueprint was flawed. It was thrown out not because it was a bad draft, but it lacked constitutionalism.
This time around, Copac should ensure a people-driven constitution is crafted. The maxim in this process should be constitutionalism.
While Copac insists on coming up with talking points, it was refreshing to hear on Monday Constitutional Affairs minister Eric Matinenga saying the role of the select committee should be to facilitate the crafting of the new constitution.
“(We) can only facilitate the process towards the crafting of the constitution. We cannot dictate,” said Matinenga. “We dare not dictate the outcome. History tells us that any interference with the will of the people is bound to fail. It happened in 2000. We should never, ever tamper with the wishes of the people this time around.”
The new constitution should be the supreme legal document regulating the exercise of state power.
It is lamentable that even after we gained Independence in 1980 with a ceasefire pact, the Lancaster House constitution which had for the first time a justiciable Bill of Rights, the new rulers in town continued to trample on people’s rights with impunity.
The constitution was panel-beaten 19 times and it became an instrument of power and an avenue to legitimise arbitrary actions against civil liberties of individuals, companies and organisations.
Such manipulation caused great harm to the country’s political profile and consequently led to the collapse of our once revered economy and image on the continent and overseas.
The current constitution-making process has presented this nation with an opportunity to put a stop to such nonsense and end a Gestapo-like state where the mighty and the rich turn the country into a prison where citizens have become perpetual inmates.
But this can only end if we come up with a people-driven constitution which captures where the country came from and where it is going along with the people’s dreams and aspirations.
In a recent paper titled Zimbabwe: Constitution without Constitutionalism, political analyst Alex Magaisa argued that a constitution is affected by the manner in which it is created.
He wrote that a wider and more inclusive process of constitutional change could pave the way for wider political and economic transformation in the country, in the same way that the Convention for a Democratic South Africa (Codesa) talks ushered in change in South Africa in 1994.
“It is generally accepted that in a constitutional democracy the authority of the majority is limited by legal and institutional arrangements in order to protect the rights of the minorities and individuals,” wrote Magaisa. “The system is expected to ensure that while the majority has the authority to form the government and rule, the rights of minorities are also taken into account. The constitution is the basic document that provides for the basic legal and institutional structures for the exercise of state power and its relationship with the citizens.”
He further argued that the supreme law enshrines the Bill of Rights to protect the individual and provides for the separation of powers between the different arms of the state in order to prevent the concentration of power in a single individual or structure.
It also enables the provision of checks and balances between the structures of state power.
“In all this, the basic aim is to ensure that those who govern are restrained by observing the laid down rules and procedures so as not to excessively use their powers,” Magaisa averred. “It also enables individuals and minorities to seek recourse whenever the majority threatens their rights. There are fundamental values underlying the system of constitutional democracy –– fairness, justice, equality, separation of powers, due process of law, etc. The antithesis is arbitrary rule where the state exercises its power without restraint or checks and balances.”
With 30 years experience of arbitrary rule, it is time for an end to majoritarian tyranny and for people to assert their rights.