Comment: Constitution-making now a tangled web

THE erratic constitution-making is predictably getting increasingly entangled in confusion for all sorts of reasons, including lack of leadership and cohesion, internal disagreements and shortage of funds.

The political parties leading the process are however trying too hard to put a gloss on the messy process but it’s not washing.

For months on end we have been trying to state — over and over again —that a flawed process cannot possibly produce a good product. The process is critical and has got to be clear-cut.

The three political parties driving this defective process are manipulating it for their own narrow ends, not those of the nation and the public. Everybody, including those gullible donors who were squandering foreign taxpayers’ funds supporting such a chaotic process, is hopefully beginning to appreciate this.

A constitution-making process that lacks inclusivity and consensus automatically lacks credibility and legitimacy. A constitution which lacks all of these aspects, not to mention accountability, is a worthless document.

It is very clear that the current political parties involved in this process do not appreciate the complexities and significance of constitution-making.

They are not interested in gathering empirical and behavioural data about what the people want in their own constitution. They want to impose their template on the people.

Constitution-making should be a serious process which produces a long-term document that determines the framework of government, institutions, how people are governed and their future.

Instead of acting as forces for good in this process, Zanu PF and the two MDC factions are collaborating in a nefarious project to shape and determine people’s future without their participation. They are forces of evil.

Political parties and their leaders must recognise the importance of constitution-making and the role of the people. They need to appreciate that the process creates institutions in the lives of humans, reflecting the significance of their history and culture and must therefore be treated seriously.

Constitution-making involves the embodiment of the constitutional traditions of the body politic in appropriate binding rules of the game that properly reflect the dynamics of the polity and socio-economic distribution of power.

For that reason, it should not be an exclusive process like this one. There must be broad and coordinated consultations to capture the totality of the people’s views. Constitution-makers often borrow from one another, not only within the framework of a particular constitutional tradition but across traditions as well.

Such borrowings were once commonplace and advocated by reformers as a matter of course.

But through a process of trial and error, constitutional designers have learned the limits of borrowing.

Constitutional architects and designers can borrow a mechanism here or there but in the final analysis those mechanisms must be integrated in a manner that is true to the spirit of the polity and civil society for which the constitution is designed.

The current constitution-making process lacks such dynamism because it is driven by inflexible and myopic politicians.

Zanu PF has now taken over the process and is pushing for the repackaging of the Kariba draft by another name.

The MDC-T is now quiet about the Kariba draft after the three parties agreed on a conspiracy of silence on the issue.

This collusion will make the current constitution-making process worse than that of the 1999/2000 period.

The 1999/2000 process was well organised and managed but the trouble was how the mainly Zanu PF commissioners sought to manipulate the people’s views to support their own political and partisan interests. We opposed that process for that and many other reasons.

The current process is worse in all respects. It is not inclusive, not well organised and managed, not convincing and lacks even a veneer of legitimacy. It is in fact a farce.

Above all, the process lacks leadership. There are no credible intellectual framers of the new constitution, no creative thinkers and no good managers. Political hacks, opportunists and incompetent administrators are in charge, hence the chaos and confusion.

A constitution-making process is too critical for the future of a country and its people to be left in the hands of three political parties and their surrogates that evidently do not represent the diverse and sometimes competing interests of a multi-racial and multicultural society such as ours.

Political parties represent a narrow section of society. That is why it is important for a constitution-making process like this one to be open and inclusive.

Right from the beginning, people were sidelined in this process. It was politicians in charge and they will remain in control of the process and the outcome unless serious changes are made. We need an open, transparent and inclusive process, not this opaque and partisan approach.