Draft constitution: Are we now almost home and dry?

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Ibbo Mandaza

THIS is not the occasion to analyse and dissect Zimbabwe’s new draft constitution nor to reflect on a three-year-old process which, by all accounts, was essentially flawed and unacceptably costly. For, hardly three months ago, some of us had concluded, and not without good reasons, that the Parliamentary Select Committee (Copac) had failed to dispel the growing public perception that it was a largely failed and wasted exercise (Reference my earlier article on this subject: The Copac Debacle: A Case for another Constitutional Commission?, Zimbabwe Independent, May 1 2012).
Even now, Copac has to be evaluated in terms of three obvious and all-inclusive criteria that guide constitution-making the world over: conception, process and output.
With respect to conception, Copac has not enhanced the integrity of constitution-making nor raised the profile of constitutionalism within the Zimbabwean historical and political process. The historical and political circumstances within and around Copac, conceived in April 2009, are precisely those that have mired the exercise in endless controversy from the very outset, reducing it to a running comedy and giving constitution-making a bad name.
This is particularly so with respect to the process (or the methodology) which, based as it was on a political tripartisanship (of the three parties to the Global Political Agreement (GPA)/ government of national unity (GNU)), should have proved fatal for Copac, quite apart from the incessant bickering therein and the failure to complete work within the stipulated 12 months and an obscene budget of nearly US$50 million!
Therefore, a failed process had to resort to a ‘‘negotiated’’ method to produce a shoddy and contentious document; and, at that, even the claims of it being a ‘‘people-driven’’ process had become mere drivel by the time the nation was informed, hardly two weeks ago, that the draft constitution was now ready for public consumption.
So, how does one explain this almost magical outcome, the draft emerging, even as the most incorrigible of optimists were certain that it had to be a return to the drawing board?
Clearly, this process is no longer about the constitution nor constitutionalism for that matter! It’s now all about politics: in pursuit of which the haste with which the decision was made, within a matter of days, that a draft, so incomplete and contentious, was now a job done and dusted.
Not only that: not until some in Zanu PF’s politburo began spoiling for a fight, most in and around Copac were behaving as if the draft was cast in stone; and even after all is said and done, it will be less about content than the political circumstances responsible for this negotiated document and the implied consensus thereof towards a new constitution.
But even those in Zanu PF’s politburo, especially Jonathan Moyo, are no less political in their manner as they knit-pick through the draft constitution, raising this or that constitutional principle therein, not to mention their vain expectations that the entire exercise will now be ditched to hold elections under the existing constitution.
Politically speaking, that’s a losing battle, mainly because those who really matter in Zanu PF, right across the board, have already decided, as the other parties to the GPA/GNU have, that this constitution thing has already served its political purpose, and the time has come to move on and prepare for the post-Mugabe era.
Yes, it is all about political succession, in both Zanu PF itself and at the national level, too.  For, the Mugabe factor is a national one writ large.
Yet, it is essentially dishonest for anyone in Zanu PF to raise the issue of loyalty to Mugabe as the basis upon which to reject the draft constitution; as it is equally short-sighted for those in the MDC parties to seek to use the constitution-making exercise as primarily the means to ensure Mugabe’s political sunset.
And, as it appears not entirely unlikely that the Mugabe factor might become the fly in the ointment, could this not be the occasion for another historical compromise, which will not only ensure an amicable conclusion to this constitution-making exercise while facilitating the transition from the Mugabe era?  That is, to amend the relevant section of the draft constitution, to provide for a ‘‘ceremonial’’ president and an executive prime minister, as we had in the original Lancaster House constitution, and thereby leave Mugabe to serve for the rest of his days in office while the nation moves on to a new era, underpinned by a charter that conforms to the best norms and practices.
My argument is that it is not too late to improve the draft constitution before it goes to referendum, even though the latter is now superfluous given both the tripartisan method used to negotiate the document and the political consensus that virtually pre-empts and almost forecloses the possibility of a “No” vote.
Quite apart from attending to the Mugabe factor, as I have already indicated, the provisions relating to the executive will also help address a problem that has been fundamental to the post-colonial states in Africa. This is the manner in which most of Africa has systematically transformed an accountable and politically finite head of the executive at independence, into a ‘‘divine monarch’’ within a matter of years.
The case of Zimbabwe refers: almost all the 19 amendments to the Lancaster House constitution had to do with the imperative of producing an ‘‘executive presidency’’ not dissimilar to Malawi under Kamuzu Banda.
Secondly, there is room for improvement with respect to the fundamental principles of the ‘‘separation of powers’’, so as to also technocratise the executive arm of government beyond the mere representational as in the Westminster model.
I refer here to the functional separation of the executive from the legislature, making it possible for the recruitment of technocrats into cabinet. The latter will be persons devoted to pursuit of tasks and responsibilities attendant to their respective portfolios, while the members of the legislature attend to their constituencies, with the requisite resources to implement development programmes.
However, in cases where a member of the legislature fits the bill to be such a member of cabinet, then he or she would have to give up the parliamentary seat in order to qualify for the appointment.
Clearly, the principles of democratic governance and representation have to be balanced by equal attention to the delivery of service to the people, on the strength of a smaller and technocratic cabinet and public service, and a realistic but well-designed national development programme. The constitution should reflect this or at least provide guidelines on the size and content of cabinet, taking into account economy, efficiency and accountability.
Otherwise, there is no doubt whatsoever that Zimbabweans could have produced a better document than what has emerged as the draft constitution before us. But this is a product of the historical and political circumstances at play, even if it is not too late to make the necessary improvements before it is finalised into the supreme law of the land.

  • Dr Mandaza is a Zimbabwean academic, author and publisher and is currently the convener of the Policy Dialogue Forum at the Sapes Trust, a regional network, think-tank and publishing concern.

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