THE Parliamentary Select Committee (Copac) finally agreed and produced a draft constitution with the aid of their principals in the shaky coalition government to end years of uncertainty to a process that was neither people-driven nor democratic, rather an elite arrangement by those in the corridors of power.
Column by Blessing Vava
The draft is part of the requirements of Article 6 of the September 15 2008 agreement by the main three parties in government, a section fearlessly contested by the National Constitutional Assembly (NCA). It is this Article 6 that mandated the parties to come up with a committee of parliamentarians to spearhead the process of writing a new charter for Zimbabwe.
The NCA argued the involvement of those in power to drive the process was not only going to compromise the content of the document, but also the full active participation of the citizenry in this important process in the history of this country.
Fully aware the process of making a constitution is as important as the content, we remained sceptical about the whole arrangement. This position may have been largely misunderstood or deliberately shelved.
The people-driven constitution approach is centred on national ownership and support for inclusive, participatory and transparent processes.
Support is to be tailored to the specific citizens context (often referring to historical and current political epochs) and is drawn from a wide range of expertise both within and outside the government system with its independence uncompromised to ensure access to international and comparative best practice and that the voice of the voiceless is protected.
Advance planning is required for the creation and implementation of public information and civic education campaign, public consultation process and the securing of funds, human and material resources.
A structured and time-intensive national dialogue or consultation process that feeds back the views of the people to the decision-makers involved in the drafting and debating of the constitution is an essential element of an inclusive, participatory and transparent process.
The NCA encourages constitutional approaches that directly incorporate and make supreme international human rights standards, including an independent and impartial judiciary, as a strong foundation for the rule of law.
The setting up of institutions, structures and mechanisms that promote adequate follow-ups to ensure implementation of the constitution or constitutional reforms once adopted.
This is where Copac failed the test. It was a commission appointed by party principals, who ultimately had the final say over what went into the draft constitution.
After purporting to have collected the views of the people during the outreach exercise, what finally came out of Copac was a negotiated draft constitution containing the views of the elite in government — Kariba Draft style.
The people-driven constitution discourse was simple yet so cumbersome in the views of the oligarchy — citizen participation in the making of a constitution will ensure their wishes are safeguarded and sacrosanct in the new constitution.
We argued in 2000 that the people must determine a process of constitution-making which they can dominate. It was on the strong belief that the principle of democracy is fully entrenched as people will not thereafter allow any future government to change the constitution as it wishes.
After producing two different drafts, one in March and another in July 2012, it became clear the final product was going to be nothing but an illegitimate and fraudulent document paraded to the nation as a democratic constitution yet in essence meant to protect the ruling elites. One of the most contentious and controversial sections which resultantly led to the rejection of the Constitutional Commission draft in February 2000 was the executive presidency, which the proposed draft has brought back.
The proposed Copac draft still provides for an executive president with almost similar powers to the Lancaster House Constitution. The president is vested with unchecked totalitarian powers such as appointing and dismissing most public figures as well as exercising the prerogative of mercy.
Chapter 5, Section 88, states that the president is still the head of state and government and commander-in-chief of the defence forces. It would have been prudent for the draft to create a post for prime minister to act as head of government, a more democratic arrangement suitable for a post-conflict nation that would provide for intra-accountability in the executive.
The proposed charter is still silent on the retirement age for the president. The president still enjoys immunity for crimes committed in his/her personal capacity. Section 98(1) says “while in office, the president is not liable to civil or criminal proceedings in any court for things done or omitted to be done in his/her personal capacity”.
Again on appointments, this draft gives the president powers to appoint an unlimited number of cabinet ministers. This clause is open to abuse and that is the reason why currently we have a bloated cabinet which burdens the Treasury in a small country like ours. Past and present ministers are known for non-delivery and only vocal on “benefits”.
On accountability, this draft provides that vice-presidents, ministers and their deputies are accountable to the president and not parliament.
Section 107(1) states: “Subject to this constitution, every vice-president, minister and deputy minister is accountable, collectively and individually, to the president for the performance of his or her functions.”
This system is open to abuse and will not allow transparency and proper accountability of ministers in the execution of their duties. Yet modern democracies are characterised by shared decision-making by the legislative and executive branches allowing for both horizontal and vertical accountability.
Some of the provisions in Chapter 6 of the draft left me in shock. For a draft that is essentially a product of members of parliament critics were however proved correct. Zimbabweans have always been against a big parliament as it has become a mere talk show and a burden to the fiscus.
In practice the citizens’ voice is silenced; a nation that deems itself in a transition to democracy should be ready to create provisions for citizens to participate in a referendum to amend a constitution.
Any proposed amendments to the constitution must be brought to a referendum to allow citizens to participate as this concept of two-thirds supermajority is prone to political manipulations by ruling parties in infant democracies. With these few submissions I have made my mind to vote “No” in the referendum and I encourage fellow citizens to reject this daft.
It is a negation of democratic principles of governance and should be rejected resoundingly to send a clear message to those who want to impose a bad constitution on Zimbabweans. A rejection does not mean we do not want a constitution, but is a clear message we want a good constitution that is authored by the people for the people and not a few powerful individuals.
Vava is a member of the NCA Take Charge Campaign Technical Committee. He can be contacted on: email@example.com. Twitter : @blevava