Constitutional reform not an overnight event

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Zimbabwe’s new Constitution, having been signed into law on May 22 2013 is still unfinished business. Not least because of the ongoing or outstanding issue of the re-alignment of all laws to its new tenets. This delay in the re-alignment process as argued by government was never going to be an overnight process.

Takura Zhangazha Media Activist

Civil society organisations have in turn accused government of not only lacking political will in this direction but also deliberately underplaying the national importance of such realignment. Issues to do with the media laws such as the Access to Information and Protection of Privacy Act (Aippa), the establishment of enabling acts for devolution and the gender commission have been cited, among others, as evidence of government dithering.

Other organisations such as Veritas-Zimbabwe have gone further and successfully assisted two underage applicants acquire a Constitutional Court judgment that makes marriage to anyone under the legal age of majority unconstitutional. There will be many more such Constitutional Court cases given the slow nature of the alignment of laws and the right that all Zimbabweans have to have their day in court.

The sad reality of the matter is that for the ruling party, the new Constitution was always going to be intended to have a gradual or incremental effect on not only Zimbabwean society but also Zimbabwean law.

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This was never going to be envisioned as a revolutionary rapture from the compromise that was the oft-amended Lancaster House constitution. If anything, all of the political parties that not only negotiated but actively campaigned in support of it understood that short of existing against the backdrop of a liberation struggle, the new bill of rights would also end up as a political compromise arrived at after tedious negotiations.

Even the referendum campaign, and its historically astounding three million plus votes in favour, was never going to take away the incremental intentions of both the ruling party and the mainstream opposition party, the MDC-T. Except for clauses that related to power dynamics and election rules and regulations, political will on making the constitutional process a holistic reality was always going to be limited or directly dependent on concerned citizens or organisations taking government to court.

So it is now close to two years since the supreme law was signed into existence. And the government has only one omnibus law that it claims covers the necessary gaps with regards to legal re-alignment. This has been through the General Laws Amendment Act of 2015. It however does not cover an extensive list of laws that civil society players still consider ultra-vires the new constitution. These latter concerns have however so far fallen on deaf government ears.

The reasons for this are patently political more than they are legal. The ruling party understands the political import of rushing to change laws within a context where it is mired in succession battles and a depressed economy. The political uncertainties for its full implementation are too high, even if they were to be done incrementally.

In fact, the “transitional” clauses in Schedule Six of the Constitution are deemed a great risk in and of themselves to the extent that they are the key priority for the current government. Especially how to manage acting presidents in relation to the possibility that the president may retire or become too incapacitated to continue in office.

Even constitutional commissions such as the Zimbabwe Electoral Commission (Zec) and the National Peace and Reconciliation Commission have their political end effects which invariably affect ruling party succession dynamics. More so because in order to change some of the provisions within them, the government would have to call for another national referendum. Such provisions make it well nigh impossible to seek to progressively amend the constitution at short notice given the peculiarly high cost of elections and referenda in Zimbabwe.

Arguments for speedy implementation will therefore be reliant largely on an ability of those aggrieved to either sue the government or persuade the ruling party to take their concerns on board. This is largely because given the unassailability of Zanu PF’s current two-thirds majority in parliament and its firm hold on executive power, it is the latter’s benevolence, short of popular action, that will bring about change.

This also includes issues to do with the chapter on devolution in the new Constitution which would reconfigure power dynamics as they relate to provinces beginning to get a semblance of autonomy from the centre. In typical colonial-style control of the periphery politics, government is going to take its time in empowering provinces to make decisions that affect the regions’ specific challenges.

Even if they are in the final analysis, no specific major changes to how the provinces are run in terms of the new Constitution given the fact that the new structures resemble the central state and are not necessarily as democratic as broadly intended. This remains a key factor in determining the slower pace of alignment and fulfillment of the spirit and letter of the new Constitution.

The key aspect that must however also be considered is why there is a muted public response to this incremental approach from government. And also why the opposition and civil society have also been lacklustre in creating the necessary platforms to push the unfinished business of democratic constitutional reform.

The main reason, where one analyses the broader Zimbabwean public, is that they remain largely ignorant of not only the content but also any semblances of democratic meaning of this new supreme law of the land. They encounter its contents and political meaning largely by default or direct confrontation with the law and via expensive or donated legal representation. This essentially means that the Constitution, unless one gets into direct trouble with the law or gets sponsored/donated legal representation, it will remain pretty much a document that is elitist in its general existence. Or it will remain saddled with politically partisan popular understanding of its content.

Questions such as what happens if the president resigns or becomes incapacitated will remain pillars of popular constitutional discourse. Beyond that, it is difficult to see the popularisation of the constitution.

With specific reference to the mainstream opposition, the reason why they remain muted on a document they co-authored is that they too intended it for incremental purposes. And the very real possibility that their primary utilitarian intention when campaigning for it was simply to acquire power and then look at all other issues thereto at their own pace.

As it turns out, they did not acquire power in 2013 and are therefore less interested in its full implementation save for by way of opportunistic statements to that effect. Or they will continue to insist, as they have done since the last general election, that the electoral playing field remains skewed in favour of the ruling party. Such claims remain credible in so far as they look at the nitty-gritty’s of how an election is technically conducted but less so where it concerns their hand in writing the sections that established the Zec.

With civil society, the problem remains the fact that it has tended to view and utilise the new constitution via sector specific lenses. This has led to a divided response to what is essentially a document that cannot be read let alone utilised in political isolation. If there was ever a need for a united civil society movement, the cause of the new constitution should have provided the opportunity to do so. But there are so many limiting factors to this effect. These include reduced donor support to broader civil society human rights related work, lack of broader focus on principles and democratic values and a regrettable emphasis on opportunism with no long-term planning for posterity.

The biggest lesson that however emerges about our constitutional reform and making process is, again, the utmost difficulty to establish a people-driven constitution in highly-politicised circumstances. The one we have now remains more akin to an elitist pact with a veneer of politicised populism. Hence there is no broad public demand for its full realisation beyond the intentions of the ruling establishment or those that helped co-author it while still having proximity to state power.

In the short-term, that is by the year 2023 when some of the constitutional clauses expire, there might again be need to review this current constitution to make it democratic beyond the wishes of our political elite. This will require a much more value and democratic principle-driven constitutional reform exercise. If there is any recommendation that can and should be given to the people of Zimbabwe, it should be that they prepare for another constitutional reform exercise by 2023, and that this time, they should not allow the politicians to run with the proverbial baton stick of the track and into distant hills as was the case with the Copac process. And when this occurs we will all be the wiser about the structure and nature of a truly democratic state that we want as opposed to the current makeshift, incremental and elitist set-up.

Zhangazha writes here in his personal capacity. — takura-zhangazha.blogspot.com

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