by P. F. Makombe, Zimbabwe, November 1999
THEME = POLITICS
Zimbabweans look forward to a new Constitution. But is it wishful thinking?
After weeks of evidence-gathering and near media hysteria, the first stage of the Constitution-making process in Zimbabwe is over. Or is it? Because in the immortal words of Yogi Berra: "It ain't over till it's over". Zimbabweans from all walks of life attended close on 5,000 meetings organized by the Constitutional Commission, in which they expressed their views on how they want to be governed.
If 1998 was the year of stay-aways, then 1999 was clearly the year of the Constitution. A good number of people were even forced to return to a dusty Lancaster House Constitution that they rarely have reason to consult in the normal course of events. The people who turned out for the Constitutional Commission meetings, expressed anger and bitterness at the ruling ZANU-PF government.
Across the length and breadth of the country, speaker after speaker rose to register their discontent with the government. In Gweru, one of the commissioners had to tell the gathering: "We are not writing this Constitution for President Robert Mugabe. We are writing it for Zimbabwe, so we want you to tell us how you want to be governed."
In the wake of the 5,000 meetings organized by the Constitutional Commission, it has been suggested that their outreach programme was a success. But the Commission's work may have only just begun. Even as the Commission will soon be synthesizing people's submissions, what is coming in the new Constitution can be anticipated. The recurring points can be stated thus:
@INDENT_NARR = There should only be two presidential terms of office.
@INDENT_NARR = An independent Electoral Commission must be in charge of elections in the country. People prefer proportional representation in Parliament.
@INDENT_NARR = In the new Constitution, the President must not wield too much power. The power of the President to appoint 30 members of Parliament must be done away with.
The Constitutional Commission will prepare a draft Constitution which will be taken to a referendum. The National Constitutional Assembly (NCA), a grouping of trade unions, non-governmental organizations, Churches and other civic organizations has said it will campaign for a "no" vote in the promised national referendum. The NCA spokesperson, Welsman Ncube, says: "The Constitution-making process would have been of the highest quality, had it not been hijacked and polarized by ZANU-PF which continues to refuse to accept that its way of constitution-making is highly flawed and partisan, and cannot lead to a national consensus on the content of our Constitution." Of the approximately 400 commissioners who took part in the evidence gathering process, half of them belong to ZANU-PF.
In its "Questions and Answers", the Commission says, "...there is nothing unique about having the majority or members of the ruling party participating in a Constitution-making process. There are precedents in countries like South Africa and Uganda where constitutional assemblies dominated by the ruling parties there, have enacted democratic Constitutions."
Lovemore Madhuku, a member of the NCA who also lectures at the University of Zimbabwe's Faculty of Law, believes otherwise. He points out that: "Uganda and South Africa are not in the same boat as far as Constitution-making is concerned. The Ugandan Constitution does not permit the free functioning of political parties, and requires the question of the role of political parties to be decided at a referendum."
In South Africa: "The process of making a new South African Constitution was agreed to before the African National Congress (ANC) came to power. The ANC did not dictate the time period within which the Constitution-making process was to be completed. The ANC did not hand-pick persons who constituted the National Assembly that wrote the Constitution."
The NCA was invited to be part of the process, they turned down the invitation, because they were against the appointment of the Constitutional Commission under the Commissions of Inquiry Act. Under this Act, the President can sack the entire Commission before it has completed its duties. Even after the Commission has presented its findings, the President is under no obligation to follow the Commission's recommendations.
The march towards a new Constitution has moved through dangerous terrain. No doubt the NCA was the front runner in calls for a new democratic constitution, but it found itself in an environment in which the only rule is - that there are no rules. There is no denying that it was the numerous meetings held by the NCA which persuaded the government to seriously consider the need for a new Constitution.
Despite a deluge of bad publicity and protests, the Constitutional Commission's evidence-gathering meetings, appeared to be a success. The meetings saw people coming to give their evidence, in spite of calls for a boycott by the NCA.
Opposition parties are adamant that they will boycott a meeting proposed by the Constitutional Commission to listen to their views. Constitutional spokesman Jonathan Moyo argues that by speaking openly during the hearings, people threw a challenge to the opposition parties: "This is now the chance for the political parties to speak and respond to the challenge." Most of the opposition parties belong to the Foundation for Democracy in Zimbabwe (FODEZI). FODEZI is a member of the NCA. Some of the FODEZI members are, the Co<%-4>nservative Alliance of Zimbabwe, Imbovane Yamahlabezulu, United Parties, Zimbabwe Union Of Democrats, the Democratic Party, Zimbabwe Unity Movement and the Zimbabwe People's Convention.
Despite the stirring speeches and slogans, the opposition scarcely presents a united front. Bekithemba Sibindi the president of Imbovane Yamahlabezulu is a commissioner in the Constitutional Commission; so is Obey Mudzingwa of the Zimbabwe People's Convention.
It has also emerged that the NCA rejected an invitation to join a televised debate on the constitutional process. Jonathan Moyo who heads the Media and Information Department of the Constitutional Commission, wrote to the NCA: "When all has been said and done, we all recognise the important role that the NCA has played in the Constitution-making debate...It is precisely because of this recognition that we are inviting you to speak to the nation". However, the NCA snubbed the invitation. In their correspondence to the Constitutional Commission, they stated: "The task force of the NCA is bound by the resolution of the People's Constitutional Convention that we should not have any dealings with the Constitutional Commission, and in particular, that we shall not give any ev-idence to the Commission. Your suggestion that we use the Constitutional Commission to communicate with the nation is regrettable and also unacceptable to us, as we believe that we do not need to communicate with the nation through the auspices of the Constitutional Commission. We have been, and still are, and will continue to communicate with the nation through our own means..."
The NCA is engaged in an alternative process of producing a new Constitution, although it is not yet clear what they will do with their Constitution. In the interests of Zimbabweans, it would appear that the way forward is to synthesize the two Constitutions and take just one to a referendum. In the weeks ahead, we will get to see how serious the Zimbabwean government is about writing a new Constitution.
So everything that happened in the last few months points to two conclusions that appear contrary but may not be. One is that the Constitutional Commission will come up with a draft Constitution. The other is that the NCA will also come up with a draft Constitution.
As the NCA wrestles with what it will do with its Constitution, the Constitutional Commission must battle to ensure that its Constitution is not simply locked away in a strong room. In the end, if both are not careful, a democratic Constitution will elude Zimbabweans.
NOTA - Update: In a draft Constitution presented to the President on 29 November, the government-appointed Constitutional Commission recommended limiting a President to two five-year terms in office. Opponents of Mr Mugabe on the Commission tried to make the provisons retroactive, meaning he would have to resign. But this was overruled. (ANB-BIA)
END