Home » Governance » Democratic Constitution … .so Near Yet Far [opinion]

Jacob Mafume a spokesperson for the MDC-T Renewal team.

“A CONSTITUTION should be short and obscure,” said Napoleon Bonaparte.

Had he been asked to pick one of the two choices, it is most likely that the legendary French military and political leader would have chosen the latter.

For a political genius, a good constitution should be as obscure as possible for as long as they are in power!

More than two years after Zimbabwe adopted a brand new Constitution – a costly document in terms of money, effort and time — and that was roundly hailed as a giant step towards the goal of making the country a truly democratic state, very little appears to have changed on the ground, prompting skeptics to question if the country is now better off than it was under the Lancaster House charter.

Confusion is reigning supreme as a raft of more than 400 laws from the old Constitution are yet to be re-aligned to bring them in synch with the new Constitution amid indications th

at some sections of the new Constitution might need to be amended because they are either impossible to implement or simply too ambitious.

The confusion has not been helped by the fact that some of the provisions of the new Constitution have been conveniently ignored out of existence altogether while others are implemented either in a haphazard or a piecemeal manner.

This has prompted questions on how democratic and future-proof the new charter really is.

The Constitution-making process was carried out in partial fulfilment of the September 2008 Global Political Agreement (GPA) which ushered in a coalition government of the three political parties that were represented in Parliament — President Robert Mugabe’s ZANU-PF and the two Movement for Democratic Change (MDC) formations led by Morgan Tsvangirai and Arthur Mutambara respectively.

The process itself was largely a long-drawn out tug-of-war between President Mugabe’s ZANU-PF party and the opposition, with both sides trying to entrench their own intransigent positions.

The opposition accused ZANU-PF of trying to use the constitution-making process to entrench President Mugabe’s rule, while ZANU-PF accused the opposition of trying to use the exercise to unseat him.

This resulted in an acrimonious process in which the frenemies reluctantly made compromises at each and every turn.

The process, driven by the Constitutional Parliamentary Select Committee (COPAC) in which the three political parties were equally represented, started in 2009 and dragged until March 2013 when the draft constitution was finally put to a referendum where it was overwhelmingly approved.

The country’s old Constitution, drafted and adopted during the 1979 Lancaster House talks in Britain that ended the Rhodesian brutal bush-war and ushered independence, was amended 19 times in 28 years, with critics pointing out that a preponderating bulk of these amendments were made to satisfy purely partisan interests of the ruling ZANU-PF party which primarily focused on entrenching President Mugabe in power by giving him unbridled powers while at the same time whittling down the rights and freedoms of ordinary citizens.

This week the Financial Gazette sought to find out why a democratic constitution is proving to be an elusive dream for Zimbabweans.

Alex Magaisa, a Zimbabwean law lecturer at the University of Kent in the United Kingdom said while the constitution-making process might not have been perfect, the fate of the new Constitution lies on political goodwill — or lack of it — of those tasked with implementing it.

“It is true that the new Constitution is a product of political compromise, just like its predecessor, the Lancaster House constitution. Political actors had to negotiate and in negotiations, there are compromises. There is nothing particularly wrong or uncommon with that because all constitutions are almost always the product of compromise. There are diverse people in society, all with diverse views. They can’t all be accommodated in one document hence the need for compromise. What is important is that it is substantially a good document that reflects the diversity of the nation and its views and I think our new Constitution does that in many ways.

“Whether or not it can survive is down to the goodwill of those charged with the power to implement it. If they are decent people committed to the values of the Constitution, it will survive. But if they are malicious and not committed, then the Constitution is at risk. The problem with the current government is that it lacks the goodwill and commitment to support implementation of this Constitution. Instead, they are keen to undermine and ignore it when it is not convenient. Take devolution for example. They did not want it and they have largely ignored it. The institution of appointed provincial governors was excluded from the new Constitution but they simply brought it via the back door by appointing ministers of State in charge of provinces. There is no commitment hence the Constitution is at serious risk,” said Magaisa.

Jacob Mafume, a lawyer who is also the spokesperson of the MDC Renewal Team–who was the director of constitutional affairs in then prime minister Tsvangirai’s office — says the compromise document Zimbabwe got for a new Constitution–though good in some aspects — is heavy and in some cases seriously off-balance.

“Aspects that are completely useless are the parts on the numbers in Parliament — the country can’t afford that,” Mafume said. “The other issues are the provincial bodies which have not been set up and are proving difficult to operationalise.”

The new Constitution increased the number of legislators from 300 to 355. This is in addition to judges, judiciary officials, commissioners of various constitutional commissions as well as several other newly created posts that have only served to make the government top-heavy.

Embattled Finance and Economic Development Minister, Patrick Chinamasa recently indicated that there might have to be amendments to the Constitution to pare down the bloated public offices–most of them sinecures–which are proving too expensive to implement. It should be a typical case of the axle being heavier than the lorry.

Added Mafume: “The other parts like the Bill of Rights are okay but it shies away from entrenching social and economic rights. The issue is that Parliament and the courts are not sure which part ZANU-PF wanted and therefore are reluctant to move too fast ahead. The expertise to do an audit of the laws is (also) not there. What should have been done was to put a list of laws that would fall redundant by a certain date if they were not amended and also put a schedule of those that need to come in and then fix a date. Without a date and a deadline plus lack of resources, this Constitution will never see the light of day.”

Former COPAC co-chair, ZANU-PF’s Paul Mangwana also shares the same views with Mafume. He recently told a meeting on constitutionalism in Harare that there was need for Zimbabwe to setup a body that will ensure the new Constitution is implemented by forcing the Executive to realign laws urgently.

“The mistake that we made was that we did not learn from Kenya which put a body to ensure the Constitution was implemented. Now we are at the mercy of the Executive because we have to wait for them to realign the laws and they can drag their feet because some of the constitutional provisions seek to clip their wings,” said Mangwana.

Mangwana has since become estranged from his party after he was accused of “selling-out” as the level-headed lawyer regularly insisted on excluding partisan interests from the draft constitution, passionately arguing that the document should serve the interests of several generations to come. It is not uncommon for a sane man who finds himself in a world of lunatics to be seen as a loony himself.

The National Constitutional Assembly (NCA) campaigned for a “NO” vote in the run-up to the constitutional referendum, arguing that the process was not “people-driven” and therefore partisan. The NCA based its campaign on a 17-point paper that highlighted the deficiencies of the draft constitution. Its chief gripe has always been the powers of the President, which it argues are so excessive as to make democratic rule near impossible.

Veritas, a respected legislative and legal watchdog gives an example of the new Electoral Act, which it argues needs to be replaced altogether because as it is, there is no way it can be seamlessly aligned to the new supreme law of the land.

In a recent report, Veritas pointed out that: “The Electoral Act should be replaced entirely because it has been amended too often that it is difficult to find out what its provisions actually are. Many of its provisions, to the extent that they can be ascertained, contain errors and anomalies.”

The watchdog suggested that the new Act should be prepared by or under the supervision of the Zimbabwe Electoral Commission (ZEC) after all interested parties have been consulted.

Currently, opposition MDC formations are boycotting elections demanding comprehensive electoral reforms.

Curiously, it was the Janus-faced Tsvangirai who started calling for an end to the inclusive government in 2012, vehemently arguing that enough reforms had been made to make conditions conducive for a free electoral environment.

According to Veritas the new Act would have to deal with contentious issues such as the right of all citizens to vote, the transfer of the voters’ roll from the Registrar General’s Office to ZEC, civic and voter education as well as the re-creation of the Electoral Court as the existing one runs afoul of the Constitution.

“Under Section 67(3) of the Constitution, every citizen has the right to vote in all elections. The present Act denies the vote to members of the Diaspora, to prisoners, to hospital patients and even to electoral officers and members of the security services who are deployed outside their constituencies on polling days.”

The body pointed out that ZEC should not have a monopoly over the provision of voter education as this infringes on the freedom of expression, which is guaranteed under Section 61 of the Constitution.

As an example of how there is some bungling (some of it deliberate) when it comes to the re-alignment of the laws, Veritas gives an example of the Electoral Court: “This is constituted as a separate court under the (Electoral) Act, though it is staffed by judges of the High Court. Under Section 183 of the Constitution, judges cannot be appointed to sit in more than one court, so their appointment to both the High Court and the Electoral Court is unconstitutional. The simple remedy is to re-create the Electoral Court as a specialised division of the High Court.”

There are also provisions in the new Constitution that the ZANU-PF government has adopted with alacrity where they batten them, and those that it has simply chosen to ignore, in case of clauses that causes a certain degree of discomfiture.

For example, Section 129 of the Constitution of Zimbabwe that gives political party powers to recall from Parliament (and in some situation, therefore government) officials who commit apostasy, by abandoning the party on whose ticket they would have come aboard the gravy train of government, has been followed religiously by both ZANU-PF and Tsvangirai’s share of the MDC formation. The clause came handy as both parties are in the throes of feral factional fights.

A clause in the Constitution that deals with the devolution of power has been conveniently ignored. Instead of setting up provincial councils controlled by political parties with a majority at local level, President Mugabe appointed Ministers of State for Provincial Affairs even though this is not provided for in the Constitution.

The effective date for Section 92 of the Constitution, which deals with Presidential running mates, was conveniently post-dated to 2023. Both President Mugabe and Tsvangirai did not want to be inconvenienced with pesky deputies they would not be able to dismiss. Had the clause been effective starting 2013, and Joice Mujuru had been President Mugabe’s running mate, he would now be stuck with her as there was no way she could have been fired unceremoniously the way she was last December. Both Mugabe and Tsvangirai realised this “pitfall”.

The staggered implementation of a new Constitution is not something that is new to Zimbabwe. The Lancaster House constitution had its own “shock absorber” clauses, which allowed the white minorities to retain some residual privileges for 10 years, after which special treatment ended.

What appears worrisome is transition from the old to new Constitution — which is turning out to take inordinately long time — in which the country will have to depend on the goodwill of politicians, who might not have any scruples about cherry-picking between the provisions of the old constitution and those from the new Constitution depending on what they feel comfortable with. It is a situation not much different from that of a country whose laws are written in sand.

Source : Financial Gazette