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New draft: Departure from the past

STARTING this week the Zimbabwe Independent will be serialising articles written by MDC-T secretary-general and Finance minister Tendai Biti — who is a lawyer by profession — on the controversial constitution-making exercise, focusing on the process, content and output. Biti is publicly wading into the stormy debate at a time when battle lines around the issue are clearly drawn and preparations for elections next year are gathering momentum.

The debate around the new constitution has become bastardised and resultantly is now wallowing in mediocrity and ignorant adulteration. Incoherent narratives and non-germane issues have been brought to the forefront, clouding the substance around the constitution-making process, while generating untold public confusion and undermining serious debate on the content of the draft constitution.

In this regard, the hardline and chaotic faction of Zanu PF must take a fair share of blame and full responsibility for hijacking the constitution-making process in pursuit of power-crazy political and schismatic agendas at the expense of the nation. Zanu PF’s factionalism is partly responsible for disrupting this process.

A scorched earth policy is now being mercilessly pursued to fulfil party political and factional agendas. The “chaos faction” in Zanu PF now dominates the public media, in particular the columns of the Herald and Sunday Mail, while shallow and clueless “analysts” hold sway at ZBC TV and radio stations disseminating propaganda packaged as analyses.

The private press too, consciously or unconsciously, has worsened the situation by allowing itself to be sidetracked to sideshows like the issue of running mates which is not a fundamental in this constitution-making debate.

Great responsibility too must be taken by the academia and civic society who have remained mute in the debate, thus failing to articulate and examine even in the slightest terms the content of the draft constitution and what it means for Zimbabwe.

As a result, the majority of our people remain in the dark on issues at stake. At least in Matabeleland the people are clear on the issue of devolution and attempts by Zanu PF to annihilate this demand in its reactionary proposals are being fiercely resisted.

Most people having been watching Zanu PF shenanigans in the last three weeks and their endless day and night meetings, have come to the simple conclusion that if this party is rejecting the Copac draft when their signatures are on it then it means it must be supported by the majority. It is an unscientific way of decision-making, but one which in the black and white scenario of Zimbabwe works well.

But let’s highlight the key milestones of the Copac draft that was signed on July 18 2012. In doing this, let me underscore from the onset the fundamental point that the constitution of any country is primarily a contract between and among citizens on how they want to be governed. It thus represents the highest codification of the social contract.

In making this point, it should also be understood that like in any other contract, the bargaining positions of the contracting parties is a key consideration. In short, in addition to being a contract, it is also a power document representing at all material times, the dominant interests in the equation.

Modern constitutions negotiated under more democratic matrixes, thus, have a more liberal orientation reflecting the victories of the working people against power and abuse.

The whole history of modern constitutions starting with the Magna Carta, the American Declaration of Independence and the French Revolution are predicated on that. In general terms, constitutions are the outcomes of revolutionary protests against power and its abuse thereof. The same is true of the American constitution of 1787 as it is true of the Zimbabwean constitution of 1979 and the South African constitution of 1996.

Thus, if a constitution is a product of a struggle, the question that arises is, does it create a new legal and political order and does it represent a break from the past? In short, does it bring a new beginning?

There are six principles we must use to judge the Copac draft and should it pass this criteria then it must be an acceptable document. These principles include:

  • Does it break with the past and establish a new order?
  • Does it protect the people against imperial power?
  • Does it establish and protect clear separation of powers and authority in state structures?
  • Does it create independent institutions, particularly, those which are a bulwark against power and big government?
  • Does it articulate the developmental aspirations of the people?
  • Does it create mechanisms for state and generational succession and regeneration?

Breaking with the past and establishing a new order
The current Zimbabwe state is largely based on a culture of violence, corruption and political predation, which in any event form the nucleus of Zanu PF’s DNA. But the preamble to the Copac constitution makes very clear the need to create a new Zimbabwe underpinned by the values of democracy, rule of law, hard work and the supremacy of God.
More importantly, the Copac draft, in its founding provisions, seeks to create a new Zimbabwe founded on uncontestable principles that are a departure from the current autocracy and vicious cycles of predation.
The founding principles include the supremacy of the constitution above any individual organ or law; the rule of law; fundamental human rights and freedoms; gender equality; good governance; orderly transfer of power following elections and recognition of all languages as official languages of Zimbabwe.
More than anything else, the many new concepts and layers that this draft seeks to introduce such as devolution and independent commissions underscore a break from the past.
— To be continued next week.

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