HomeCommentConstitution process full of loopholes –– analysts

Constitution process full of loopholes –– analysts

A COUNTRY’S constitution is supposed to be immortal and should be crafted to benefit future generations. It should never be written to deal with current political problems.  

In Zimbabwe the inclusive government embarked on a constitution-making process last April and the outreach programme has been postponed indefinitely after a six-month delay due to financial constraints and disagreements among the three political parties, Zanu PF and the two MDC formations.

For some people, a new constitution was seen as an enabling tool to hold free and fair elections within two years, while to others in civic society, the process was an opportunity for a people-driven process to replace the Lancaster House Constitution, which critics say has been manipulated by President Robert Mugabe and Zanu PF to hold on to power. It has already been amended 19 times in 30 years.

But to another group of people resisting the reforms, a new constitution was seen as a weapon to limit Mugabe’s powers.

However, as the country prepares to embark on the outreach programme, analysts are concerned at the way the process is being done.

They have raised questions on whether the views of the ordinary Zimbabweans would be captured and how the proposed talking points would impact on the process and its outcome.

Concerns have also been brought up relating to the type of questions the Constitution Parliamentary Committee (Copac) came up with at a workshop held in Harare last week.

Analysts interviewed by the Zimbabwe Independent felt that the questions were aimed at manipulating the views of the people during the information-gathering process.

Said political analyst with the African Reform Institute Trevor Maisiri: “My concern is that the talking points must not be leading questions which will then force people into a certain notion prescribed by the way the question is asked.”

Political analyst and University of Zimbabwe lecturer Eldred Masunungure says his greatest fear was that people would not be speaking about the constitution but the prevailing political crisis.

“It’s not going to be about an ideal constitution. The whole process will be personalised. The danger inherent in the process is that it is being done under a deeply polarised environment. This might end up being a symbolic process. There are already fixed views or partisan views seeking approval,” he said.

Another political analyst Takura Zhangazha concurred when he said the process was largely driven by the partisan interests of the three political parties, with a compliant civil society that would side with one of the three parties’ partisan agendas.

“The civil society role will be to sanitise this particular process but it is fairly lucid that they all have their patent political biases that will be conveniently manipulated by all of the three political parties, especially the MDC-T,” he said.

“So the process is reflective of the partisan and competing interests of the three political principles of the global political agreement. Where any member of Copac wishes to differ with the former, they will be whipped into line just as has been the case when parliament passed Constitutional Amendment No.19.”

A constitutional lawyer, who has been leading a parallel constitution-making process through his organisation, the National Constitutional Assembly, Lovemore Madhuku, said the questions did not encourage debate. Instead of coming up with a host of leading questions, Madhuku said Copac should engage people in debate by asking general questions that encourage discussions.

“Leading questions undermine the process. They should be asking questions like what they want to see in a new constitution and what they find problematic in the way they have been governed. The referendum is going to be about the current situation and not the wishes and ideals of the people,” he said.

Just looking at the 17 questions that are being proposed by the thematic committee which looked at the arms of the state and principles on the separation of powers, they do not give an impression that people will be able to express their aspirations on the new constitution.

Copac has come up with questions such as: who should be head of state? Do we need an executive president or prime minister? Should the head of state be head of cabinet, judiciary and the legislature? Should the head of state be commander-in-chief of the defence forces? Should there be mechanisms for recalling the head of state/prime minister? And how is he or she elected into office?

Zhangazha said the questions were raising similar issues of who in the GPA has executive power –– the prime minister or the president.

“This means the constitutional reform process is similar to another round of power sharing negotiations except without the Sadc mediators until towards the end where we must again expect disagreement on the issue of executive power and perhaps elections regulator frameworks,” he said.

Masunungure pointed out that some of the questions were quite technical, leaving doubt on an average Zimbabwean’s ability to give an informed response.

“Unless there is a mechanism for explaining to the layman the meaning behind the talking points, it will be difficult to get an informed and knowledgeable response. If we are not careful we would end up with an elite-centred process capturing the views of the elite in rural areas who are the teachers and other civil servants,” he said.

Masunungure proposed that Copac simplifies the questions, making the talking points understandable to average Zimbabweans so that they can give more meaningful and informed responses.

The analysts interviewed believed that not enough civic education has been done to ensure that most ordinary people participate from a knowledgeable and informed point of view. Maisiri challenged Copac to embark on a massive civic education drive before the outreach teams are sent out.

“What you will realise is that there are a lot of pockets of people in Zimbabwe who are not aware of the centrality of the constitution and its essence. So there should be civic education around that before the reform process is commenced,” he said. “Before the outreach teams go out, the talking points must be made public so that people think about them way in advance before the outreach.”

In support Madhuku said the outreach should be done in the form of workshops where concepts are explained first until people understand so that debate is generated from the basis of knowledge.

This outreach process, he said, should not be hurried but should be done over a period of more than a year. Madhuku doubted that all the individuals involved in the outreach teams fully understood the concepts and terms.

“How can you say you trained people over three days? There is no mechanism to check whether they even grasped what they need to do,” he said.

Masunungure concurred when he said he did not think the more than 600 people in the outreach teams would contribute meaningfully to the process.

“The American constitution was written by 65 people. The outreach process is a symbolic thing to say that we consulted. I am very sceptical. I have serious doubts that the process will still be completed by October. I believe that they will be consulting then,” he said.

Maisiri is worried about whether the process would be 100% foolproof.

“Who will ensure that the captured information complies with what the people would have said? Who would also handle the final document in terms of writing it before it goes to the referendum? Will there be enough time and capacity at the second stakeholders’ conference to verify the input into the final document?” questions Maisiri.

Faith Zaba

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