What is a people driven Constitution? – By Lloyd Msipa

COLUMNIST – “People must write their own constitution directly, not through politicians, parliamentarians or government. The surest way to make sure that a constitution is respected is if it is written by the people themselves and carries their word.

NCA Chairman Lovemore Madhuku is quoted to have said after the signing of the Global Political Agreement. (Hereafter GPA) 

Zimbabwe is on the verge of rewriting a new constitution in line with a provision included in the GPA agreement. The current constitution is a product of the Lancaster house talks in the United Kingdom in 1979. The current constitution of Zimbabwe has been amended a total of 19 times. This is clear evidence that it has outlived its usefulness and it now ceases to be relevant in its constitution as the supreme law of Zimbabwe.

Article six (6) of the GPA provides for the rewriting of the constitution by the people of Zimbabwe. To be precise it says:

Acknowledging that it is the fundamental right and duty of the Zimbabwean people to make a constitution by themselves and for themselves; Aware that the process of making this constitution must be owned and driven by the people and must be inclusive and democratic; Recognising that the current Constitution of Zimbabwe made at the Lancaster House Conference, London (1979) was primarily to transfer power from the colonial authority to the people of Zimbabwe; Acknowledging the draft Constitution that the Parties signed and agreed to in Kariba on the 30th of September 2007.

In the spirit of the above, parliament is due to appoint a select committee composed of members of all the governing parties in Zimbabwe to draft a new constitution based on the Kariba draft. In fact Article 6, subsection 1 of the GPA States that the:

The Parties hereby agree 🙁 a) that they shall set up a Select Committee of Parliament composed of representatives of the Parties whose terms of reference shall be as follows:

(I) to set up such subcommittees chaired by a member of Parliament and composed of members of Parliament and representatives of Civil Society as may be necessary to assist the Select Committee in performing its mandate herein;

(ii) to hold such public hearings and such consultations as it may deem necessary in the process of public consultation over the making of a new constitution for Zimbabwe;

(iii) to convene an All Stakeholders Conference to consult stakeholders on their representation in the sub-committees referred to above and such related matters as may assist the committee in its work;

The above provisions to my understanding where made in the context of the principle of representative democracy. The principle of representative democracy provides that elected individuals through elections or some other democratic process are elected to stand in a particular office on behalf of the people who have elected them. What this means is that, whatever those officials do, is now being done on behalf of the people.

In the context of the Zimbabwean situation, the members of parliament currently in place are a product of the last plebiscite and hence represent the people of Zimbabwe. Many representative democracies chose their representatives in elections, Zimbabwe included. Also representatives may sometimes hold the power to select other representatives for example presidents or other officers of government. In Zimbabwe the president and prime minister they themselves elected representatives hold the power to appoint other public officials on behalf of the people who elected them. The appointment of Senate members in the reserved category, permanent secretaries and the appointment of members of the judiciary is an example of the use of these powers coming from the people.

The concept of a people driven constitution must be taken in the context of elected representatives doing what they were elected to do. That is rewriting a new constitution as they were directed by the people of Zimbabwe.

The people are taken to have passed this instruction at the point of contact with their representative. This normally occurs during election campaigns and when the elected representatives go back to their constituencies.

The words "a people driven constitution" are merely high sounding words that do not have a bearing on the reality on the ground. There is no such thing as a people writing their own constitution. It is merely not practical, let alone feasible. These words are meant to make the person who says them sound good at the expense of a gullible electorate.

The fact that the electorate have mandated their chosen representatives to rewrite the constitution of Zimbabwe does not mean that they will use their new found powers to foist their own ideals, principles on the people of Zimbabwe. That is where the referendum principle will come in.

A referendum is a democratic process which seeks to take on board the views and sentiments of the electorate regarding an issue(s) of national importance. If for any reason the select committee mandated to rewrite our constitution deviates and fails to deliver "a people driven constitution" then the people of Zimbabwe will reject that document as what happened in February 2000.February 2000 saw the defeat of a proposed new Constitution of Zimbabwe which had been drafted by a constitutional convention in 1999.

In the light of the above I struggle to understand what the good doctor meant when he said the people should write their constitution directly. Not through Politicians or Parliamentarians. What I think should be uppermost in the minds of our people is how we can add value to the Kariba constitutional draft.

We are after all as citizens, stakeholders in the rewriting of the new Zimbabwe constitution through our elected representatives. We need to now begin to lobby the same representatives to include our various views in our supreme law. After all we are the citizens that will be governed by that law at the end of the day.

The writer Lloyd Msipa writes from the United Kingdom. He can be contacted at lmsipalaw@googlemail.com. Read more from Lloyd Msipa at http://www.lmsipa.com