Nation building challenges – the constitution making process

OPINION – On Sunday, 19 April, the day after Zimbabwe’s independence, I was one of the more than 100,000 people who participated at the historic final rally of the African National Congress (ANC).

As I sat at the stadium listening to the ANC leader, I could not help but reflect on a number of key foundational and construction principles and issues of nation building. 

When Zimbabwe turned 15, I took the decision to identify my remaining life with the cause of Africa’s transformation.

Since I started contributing my insights into political, business and social issues, I have no doubt that I have lost many of my business friends who rightly or wrongly believe that business people are not ordinary human beings affected by bad political choices and governance.

Some have given me free advice to stop meddling in Zimbabwean issues while others see more in my writings than what it is on paper.

In trying to understand the challenges of nation building, I believe that one must make an important distinction between a nation and a nation state. A state is a product of human construction and largely reflects the values and principles that people hold.

Questions of identity and citizenship become important in any discourse on nation building. Whose interests and values should a constitution represents? Who is a Zimbabwean? What kind of Zimbabwe do we want to see?

After 29 years of independence, Zimbabwe finds itself with an inclusive government and a discredited government, hardly what one would have expected from a country that began the nation building journey with great promise and hope. The existence of bodies like the National Constitutional Assembly goes a long way towards exposing the fundamental weaknesses of the constitutional foundation of the post-colonial state and its propensity to be abused.

I believe that Zimbabwe’s future is a responsibility of not just people who call themselves Zimbabwean while choosing to do nothing to be the change that they want to see but all people who care about reducing the frontiers of poverty.

Understanding the state and its utility in advancing the cause of human progress is critical in informing decisions on a country’s constitutional order and construction.

I should confess that I am no constitutional expert but I thought it would be useful to share a conversation that I held with a colleague on some of the issues that may assist in better understanding the current debates on the constitution making process.

1. What is a people-driven constitution?

In the context of Zimbabwe, it has been argued that citizens must be the authors of the basic law of the country and must exercise their right directly and not through their elected representatives in Parliament.  How precisely this should be done is not clear.  However, what is clear is that anyone who advocates the notion of a people driven constitution must necessarily hold the current constitutional order in contempt and more importantly does not recognise the legitimacy of the current crop of legislatures.  To the extent that the legislatures were elected and are constitutionally empowered to make laws including amendments to the constitution, it may not be evident why one would seek to go directly to the people in drafting a new constitution.  What has been argued is that the constitution of Zimbabwe needs a total overall and such a task cannot be trusted on the representatives of political parties who may look at the world in partisan terms rather than national terms. 

Therefore when one talks of a people driven constitution one is effectively talking of a constitution that carries the wishes of the people directly both in terms of its crafting and its implementation.  In making this case, one is affirming the principle that sovereignty is ultimately directly vested in the citizens.  Given the history of post-colonial Zimbabwe and the role of politicians in manipulating the constitution to suit their own interests, it is argued that time to trust politicians is over.  It is common cause that parliament has not been effective in maintaining any independence from the executive and, if anything, the executive has had its way in terms of law making to the extent that the separation of powers doctrine has not been operative.

 

2. What are your views on the National Constitutional Assembly’s decision to oppose the constitution making process spearheaded by a parliamentary select committee given that parliamentarians are elected by the people and represent people?

The real issue that needs to be addressed is whether parliament can be manipulated by the three principals to the GPA or can be trusted to be custodians of national interest.  The experience so far shows that the parliament generally follows what the boss want to be done and more importantly the GPA has effectively taken power from legislatures to the three principals who can replace parliamentarians without going through bye-elections.  If a parliamentarian is seen to be obstructive then he/she will be replaced by a compliant one.  The three principles now control the process and any constitution that comes from this process will necessarily have to be a product of a negotiation that will exclude the people.  The strong man syndrome inherent in post-colonial Zimbabwean politics makes it difficult for anyone in the state system to challenge the strong man at the top even when it is obvious that such challenge is in the best interests of the country.  Once elected, parliamentary representatives cease to represent the wishes of the people who elect them but the whims of those they seek promotion to cabinet or other state positions.  Given the level of political and financial literacy, citizens have no control of their representatives in the state.  The President or the head of government has more control of parliament to make any outcome of a parliamentary process credible.  However, any alternative may not produce any better outcome than the wishes of the counter elites who may use civic organisations to pursue their own agendas with minimum or no accountability.  Many of the players who advocate a people-driven constitution making process may not be immune from the very criticism that is levelled against parliamentarians.  They also are not accountable and in many cases they are funded from without and look to donors rather than the people they purport to represent for guidance and direction.  Either way, citizens pay the price and invariably surrender their future to players who may be motivated by personal rather than national interests.  Any democracy is as credible as the interests that inform it.

3. Will the 18 months time frame to come up with the new constitution going to affect content?

A new constitution will definitely be on the cards and a draft is already in place and the three principals have already agreed to it to suggest that this may not be a problem.  What may be a problem is that the three principals may either find a way as ZANU and ZAPU did to co-exist and continue to govern as an inclusive formation for a period longer than the 18 months.  After all, any other system may ultimately not be in their interests as now they have been given dictatorial powers in respect of determining the composition of parliament.  The parties under the control of the three principals determine who is to be a parliamentarians and who should be removed.  More importantly, the number of representatives of each party will remain the same.  The no-compete clause means that if there is any bye-election, the parties in government will not field candidates against each other.  The three principals control the state and it is often difficult to dislodge someone who has been nominated by a party that is part of the state.  What may emerge is that Gono and his political adviser, Prof. Moyo, may launch a party that may push for the third way using the constitutional debate as a basis to break from the GPA framework.  The real opposition to the GPA may be the proponents of the third way and to the extent that the constitutional process will be driven by parties (former enemies) one can expect that a multi-stakeholder opposition will soon emerge.

 

4. What is your view on the process to come up with the constitution?

This is a complicated question but what is significant is that interests in a post-colonial state are largely shaped by the few in the state.  Any contestation for political power ordinarily takes the form of a contestation between elites in the state machinery and representatives drawn from non-state civic organisations like the labour movement.  Business interests are rarely engaged in the debates of the time although their role in bringing food on the table is well recognised but vilified.  What we know is that whatever route is selected the outcome will be defective.  What is important is for people to recognise that they have a stake in shaping the future and the only way to ensure that their voice counts is to participate.  We rarely talk of the kind of Zimbabwe that we want to see and who should be responsible for shaping it.  What we have seen is that over the last 29 years more black Zimbabweans have voted with their feet and if they do not like the Zimbabwe they see they have tended to either be arm-chair revolutionaries or miss in action.  As a result, the future of the country has now been condemned to the wishes of the few wise men and women.  A constitution will only be important when people have a stake in the future of the country.  Currently, people’s dreams and hopes have been decimated largely by the actions of the very few wise men and women from whom salvation is expected.  They often say that if you do not know where you are going, any road takes you there.  There is no shared vision on basic nation building foundational and construction principles.  This ought to be the starting point.  If this does not exist then it is difficult to have any view on the future.

The journey ahead is full of uncertainties but what is clear is that a new social contract is required and the need for citizens to be the change that they want to see cannot be understated.

Mutumwa Mawere’s weekly column is published on The Zimbabwe Mail.com. You can contact him at: mmawere@global.co.za