A new, enforceable, democratic constitution will certainly contribute to the political development of the country and help solve its very grave economic and social problems. However, the viability of the process and successful adoption of a new constitution is threatened by the flaws in the process and the real motivations by key actors to distort and even to block it altogether.
To reach a successful conclusion, civil society must actively engage and focus on the substantive areas of agreement, and parliament should fulfill its critical role as elected representatives and decision-makers for the people.
I am not an expert on Zimbabwe’s politics yet I have 20 years of relevant comparative and theoretical academic work comparing modern constitutions and constitution-making processes. I visited Zimbabwe in November.
The constitution-making process, as mandated by Article 6 of the Global Political Agreement (GPA) and by constitutional amendment 19, is part of a much longer constitutional history. The present constitution is a significantly amended version of the 1980 Lancaster House negotiated constitution that came with Independence.
It has fundamental deficiencies not only with respect to its absolute entrenchment of settler privilege in land ownership, but also in the area of basic rights.
The most important amendments did not address the deficiencies, but fundamentally altered the structure of government, moving from a parliamentary system to an “executive presidency”, also referred to among academics as hyper-presidentialism or delegative democracy. The end result was a constitution that combined a deficient concept of rights with a post-colonial authoritarian structure of government and no significant separation of powers or checks and balances.
Today, as a result of more than 10 years of political crisis, there is broad consensus in Zimbabwe that the inherited constitution must be replaced by a new one. However, there remains disagreement over whether the change will mean a fundamental change in the current regime or merely its structural reform.
Between 1998 and 2000, there were two constitution-making projects that failed, one came from below and one from the government. The National Constitutional Assembly (NCA) formed in 1997 proposed the election of a new constitution-making body with important inputs from grassroots consultations. The NCA developed an important constitutional draft in 2001, yet it and other civil society forces did not have the power to implement this model from below. To counter their popular project, the Zanu PF government offered its own procedural and substantive proposal: the establishment of a governmental Constitutional Commission that would itself organise popular consultations, produce a draft and submit it to a referendum. A draft was produced (Constitutional Commission or CC Draft 2000) and was taken to a referendum where it was rejected. The country remained with its heavily amended Lancaster House Constitution.
After the failure of these draft constitutions, from a comparative point of view, the GPA seeks to establish a two-stage constitution-making process based on a combination of negotiations and democratic will formation.
This model, speaking abstractly, was used in Poland, Hungary, and Bulgaria, and was perfected in the Republic of South Africa. It involves a first stage of inclusive political party negotiations to establish the preliminary legal framework for next steps (in South Africa, the interim constitution with its 34 principles), and a second stage based on a much more democratic (but not unlimited) constitution making body. In Bulgaria, it was a Grand National Assembly; in South Africa, it was two newly elected chambers meeting as the constitutional assembly. This by its nature allows significantly more input from civil society and the public sphere.
The GPA itself is the result of tripartite negotiations. The current constitution’s amendment 19 arguably changes the present constitution into an interim one suitable for the regulation of the process. While not as strong as the South African interim constitution of 1993, the Zimbabwean transitional arrangements are comparable to the Polish and Bulgarian devices, assuming relative good will of existing power holders.
In Zimbabwe, a unique method was chosen to provide the democratic element: popular, grassroots consultations and co-opted (rather than elected) All Stakeholders Conferences. The results of the popular consultations are to be fed into 17 thematic committees established by the Select Parliamentary Committee (Copac) in charge of the process. They in turn are to report their results to a drafting committee also established by Copac. Parliament itself is to debate the result only at the end, after the drafting committee’s proposal has gone through and survived a second meeting of the All Stakeholders’ Conference. The final step is a national referendum.
The idea of constituent power, originally formulated through elected representation in America and France, is conceptualised here in the form of direct democracy. This presents real challenges because the unity, homogeneity, organisation and subjective capability of the long suffering people of Zimbabwe is even more questionable today than it was in those countries in the 18th century. Fortunately, the GPA article 6 also leaves room for civil society organisations in the process.
This then leads to the question, what is the true voice of the people: the record of the popular consultations or the plurality of views represented by the organisations and actors of civil society?
Many civil society organisations have already noticed that something is wrong with the constitution-making process. Unfortunately, they tend to attack what is good in the process.
In a complex society torn by divisions, a direct democratic replacement of representative democracy based on elections will not produce workable results. Ultimately, this returns the task of constitution-making to the much derided process of party negotiations and the current parliament, which is likely the most representative elected body Zimbabwe has had since Independence. Because of this, civil society organisations should play an important corrective role in the process.
It is critically important that civil society participate actively in the 17 thematic sub-committees working on substance for the drafting committee right now. According to the GPA, civil society should make up 70% of the
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Both the civil society members in the committees and those who monitor them should work to achieve what they think is right — not necessarily what the people said in outreach meetings but what they would say if they understood the meaning, the consequences and the side-effects of their choices. They should not disregard what the respondents actually said, yet they must treat this as data along with other data, including relevant party and civil society draft constitution proposals. And finally, civil society and party members must not be deterred by their own prejudices or by the presence of monitors from negotiating with one another and trying to convince one another.
While there is great commonality in the current variety of drafts over important civil rights, the most important questions and negotiations will be about the structure of executive power, devolution of power, the land question and the question of citizenship. These critical questions will be best addressed if civil society representatives and party representatives abandon the idea of being passive tabulators of the people’s will and instead negotiate in reasonably good faith to make a workable document.
Take the most important question – that of the executive — as an example. Here both sides in the debate are appealing to the supposed wishes of the people, and each is coming up with an unworkable result because the people do not have a well-educated, comparative understanding of the possible models. For instance, does a rural subsistence farmer really know that executive presidency means hyper-presidentialism without checks and balances? Such a model implies the power of the dissolution of parliament that even the US and South African chief executives do not have? And that this puts the president alone in control of emergency powers?
It is still possible to negotiate an executive presidency redefined by limits, checks and balances. There should be term limits, certainly no more than two terms should be allowed, and on this there seems to be some consensus already. The power of dissolution of the legislature should be removed, or made dependent on the agreement of the absolute majority of parliament.
The power to appoint judges should be redesigned to give it independence from the executive. Provincial governors should be elected rather than appointed. The power to declare emergencies should be shared in some way between the president and another body, and ending them should be entirely out of the hands of the executive. This power could be given to the highest court or the parliament, but in no case should the president have these powers alone. The ability to rule by decree should be dramatically reduced. Veto powers over legislation should be weakened and eliminated entirely in the case of constitutional amendments.
If compromise solutions are possible in such areas, then a purely expert drafting committee may also be possible. If, however, there is disagreement on one or more of the fundamental issues, only a politically constructed drafting committee can make the final choices. It is not realistic to propose that non-partisan experts could resolve disagreements whose nature is fundamentally political. Thus, the best drafting committee composition is most likely political party experts alongside civil society constitutional experts.
There are three bodies left to consider the results: the Second All Stakeholders Conference, parliament, and the popular referendum. If there is fundamental agreement in the drafting committee on all issues, I believe all three instances will and should support the results. A “NO” vote in a referendum would be counter-productive given the huge areas of progress that are likely to be made, and the fact that the country would end up returning to the Lancaster constitution.
The current constitution making process in Zimbabwe is uncertain but also hopeful. Its best chances for success rely on the (partial) convergence among constitutional drafts, substantive participation by civil society in the drafting process, and the presence of a plurality of parties at all levels of the process.
Civil society and political parties could reinforce the chances of success if they quietly break with some of the myths of a people-driven process and instead embrace the reality and the advantages of a negotiated one.
Arato is the Dorothy Hart Hirshon Professor in Political and Social Theory.
By Andrew Arato