Civil society led by the NCA and ZCTU have vehemently opposed the inclusive government’s proposed process mainly because they allege the process should be ‘people driven’ , not ‘parliament driven’ ,and that it should be inclusive and be led by an independent organisation[ according to Matombo ZCTU].
Zimbabwe is hardly breaking the ice on this subject. That the process needs to be inclusive is hardly in doubt. Contrary to Lovemore Madhuku’s assertion, there is no mandatory process to follow in constitutional making process .If there was, a breach of procedure would render the process unlawful and could duly be challenged in the courts of law. A democratic constitutional making process is critical though to the strength, acceptability and legitimacy of the final document. Constitutional writing in the 21st century is different from the previous era where expert writing was the norm. Probably one of the oldest constitutions, that of USA was written in 1789 by just a small group of people, whereas the Japanese constitution was written by a group of occupying American personnel. Both have stood the test of time.
The 21st century has seen a change in attitudes because of the principles of democracy. What matters now is not just the substance of the end product and its acceptance. The process is now just as important. Ownership and authorship of the process and by-product is critical. This demands a broad and inclusive approach, which is wholly participatory at every stage of the process.
Realism will reflect that constitutional making is all about division and regulation of power. Political elites will not want to leave the task in the hands of interest groups. Therefore it is imperative that both the government and interest groups be flexible in their approach to the process. At the end of the day what is required is compromise from both sides to find a middle of the road process.
It has been argued that there is actually a legal right to public participation in constitutional making processes. Article 21 of the UN Declaration of Human Rights 1948 and Article 25 of the UN International Covenant on Civil and Political Rights [ICCPR] have been interpreted to confer such a right.The general meaning of ‘democratic participation’ has been interpreted by the UN Committee on Human Rights to also encompass constitutional making processes. Article 25 ICCPR on the other hand establishes the right to participate in public affairs.
The same right is present in the African Charter on Human Rights, Article 13, which states ‘every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provision of the law’. Whereas it is true that these rights initially were meant to protect the rights linked to electoral processes, gradual judicial interpretations have expanded the context to include participation in constitutional making. The first UNCHR ruling came in the case of Marshall v Canada 1991.
The UNCHR ruled that the right to participate in constitutional making process was undoubtedly part of public affairs [basing on ICCPR]. The right though was deemed not unlimited as Article 25[a] was read to mean that ‘no group had unconditional right’ to choose the modalities of participation in public affairs. It aptly stated that ‘it is for the legal and constitutional system of the state party to provide for the modalities of such participation.’
In addition a General Comment from the UNCHR on article 25 of the ICCPR further strengthened the right to participation. They stated that citizens have the right to participate directly in the conduct of public affairs when they choose or change their constitution. This is a persuasive argument because a General Comment by its nature is not binding. In a related case, the South African Constitutional Court had occasion to adjudicate on the nature and scope of the duty to facilitate public involvement in the law making processes in Doctors for Life International v The Speaker of the National Assembly and Others. The court concluded:
‘the duty to facilitate public involvement must be construed in the context of our constitutional democracy, which embraces the principles of participation and consultation…undoubtedly; this obligation may be fulfilled in different ways and is open to innovation on the part of the legislatures. In the end, however, the duty to facilitate pubic involvement will often require parliament.. to provide citizens with a meaningful opportunity to be heard in the making of laws that will govern them’….Ultimately what parliament must determine in each case is what methods of facilitating public participation would be appropriate…’
In Kenyan jurisprudence following the Ringera Judgements, Justice Ringera in deliberating on the constituent power of the people in constitutional making observed: ‘the constituent power of the people could only be upheld in a constitution making process after the following steps are taken  views are collated from the people and processed into constitutional proposals, a constituent assembly is formed, where these views are debated and concretised into a draft constitution and  a referendum is conducted to confirm whether the draft constitution is acceptable to the people and envelops their constitutional expectations’
These cases illustrate that there are no hard rules or mandatory procedures in constitutional making process. However they also establish that public participation is a right and is mandatory for the process to be legitimate. Authorities of the day have discretions on how they will proceed in involving public participation. At best the process is a compromise between competing opinions. It is imperative that Zimbabwe looks at its neighbours to learn how it can refine its process. Four African countries, South Africa, Rwanda, Zambia and Kenya could offer an insight into different modalities than can be utilised in constitutional making process.
The South African model has been hailed as a success process in constitutional making. Bearing in mind that the broker of the Zimbabwe GNU was one Thabo Mbeki,it is apparent that the route envisaged in the GPA is modelled along the South African Model. The South African legislature[ parliament and Senate] were constituted into the Constitutional Assembly. A Constitutional Committee was then established from the Constitutional Assembly .The CC was led by Ramaphosa and Meyer. The CC then established six thematic committees to receive and collate views from all parties. The process was led by parliament and senate and still it is regarded as ‘people driven’.
Public participation was by a very strong media and advertising campaign. Their elected representatives reached out to them and invited their views. The educational campaign used all sorts of techniques including websites, cartoons, radio, televison,billboards and public meetings. From 1994 to 1996 the CC is reported to have received more than 2 million submissions from individuals and interest groups. Then the committees of the Assembly drafted the new constitution, first by a working draft and which later was signed into law by Mandela in December 1996.It is very much surprising that Pedzisai Ruhanya concluded that the process was acceptable simply because Mandela was in power. Such a conclusion is very simplistic in nature for it does not address how legitimate the process was and why Zimbabwe cannot adopt the same process and come up with the same result.
Rwanda’s process was a result of the negotiations at the Arusha Peace Summit in Tanzania. The process involved a setting up of a Legal and Constitutional Commission. The elected legislative assembly elected a constitutional commission of twelve people.[again from its parliament].Thousands of people were trained, including government officials, members of parliament, judges at national provincial and prefecture levels. These then solicited public opinions on what issues they wanted in the new constitution.[public participation stage].
Kenya’s experience makes interesting reading because it just looks like a replica of Zimbabwe. After the 2002 elections a constitutional review process was recommenced after passing of the Review Act. The Act called for broad public participation at every stage of the drafting process. It outlined a three step constitutional review process of  public consultation by a small review commission, review of draft by a national convention and  ratification by parliament. The review commission comprised twenty seven commissioners [later reduced to fifteen] nominated by parliament and appointed by the President. The commission was mandated to visit every constituency in Kenya to collect citizen’s views and to disseminate the draft widely among the public.
The review commission was also to convene a national constitutional conference for discussion, debate, amendment and adoption of the commissions report. The national conference constituted of 629 members. More importantly all MPs were also included in the national conference as well as representatives from all political parties, from religious groups, and civil organisations.
The third requirement of ratification proved contentious because the High Court issued a ruling proclaiming that any new constitution needed ratification through a national referendum. I have omitted the politics of the process but the gist of the matter is that the constitution was defeated by a NO vote in the referendum, just like in Zimbabwe in 2000.
Zambia up to today is still mired in the politics of constitutional making. It has had three review commissions in 1973,1991 and 1996.Currently there is a fourth one led by Mungomba instituted in 2003 by Levy Mwanawasa.The major obstacle has been the requirements of the Inquires Act which gave government the power to reject or accept peoples recommendations on a new constitution. The constituent assembly known as the National Constitutional Conference is constituted by almost 498 members drawn from all political parties, civil society and other related groups. Levy Mwanawasa made concessions and allowed the NCC to elect its own chairperson rather than before when he was appointed by the president.
The above scenarios show different constitutional making processes. Each was insinuated in context of the countries laws, history and values, and all claim that the process is people driven .So what is actually a people driven process?
A people driven process is but just an opinioned process. The greater part of a country consists of the unorganised individuals, people who do not belong to the any of the groups making up civil society. These people can not drive a process themselves and at most their interests are represented by their Members of Parliament. An elected MP doesn’t just represent those who elected him. To conclude thus renders the concept of elected representation and democracy irrelevent.They represent all people in their constituency and all interest groups also therein. Parliament and Senate is elected on the basis of universal adult suffrage in free and fair elections and should embody the sovereign will of the people.
Dr Madhuku alleges that some of the parliamentarians are of dubious character. Indeed it is true but then there are no saints either in the civil society.Madhuku himself is a living testimony. He committed the most cardinal sin in constitutional manipulation by forcing an amendment so that he could go for a third term as chairperson of the NCA.The reason? According to him, he was afraid the organisation could be hijacked by other elements whose purpose is not to achieve the objectives of the NCA.How can we trust a parliament to enact laws for us, which includes constitutional amendments [by a two thirds majority] and use our taxes and yet fail to trust them to lead a constitutional making process?
It is for these reasons that WOZA must be applauded for their stance to participate though under protest. If Zimbabwe is to move forward all forces must join in the constitutional making process and strive to influence the process from within. Not only does this afford them the opportunity to criticise from an informed position, it gives them the edge to provide checks and balances. If NCA and ZCTU, ZINASU participate it does not invalidate them from campaigning for a NO vote later if they feel the process has been manipulated and the product is not representative of what would have come from the thematic committees. The most crucial issues are that the thematic committees be as broad and inclusive as is reasonably possible, that the drafting be done by a constituent assembly or an all stakeholder’s assembly, and that the draft is put forward to a referendum without any amendments.
There is no doubt that the composition of the all stakeholders conference will be subject to debate as well. The political polarisation that is in Zimbabwe has seen a mushrooming of organisations aligned to the major political parties. For ZCTU, there is ZFTU, for ZINASU there is ZICOSU, for NCA there is NDA etc. Does that imply delegates will come from each of the registered organisations in Zimbabwe? What about the unregistered? Critical to the issue is whether the parliamentary committee will nominate delegates from these interest groups or that the interest groups identified will forward their own representatives. Suppose they do, the question will then be whether the delegates have a specific mandate from their general membership to represent their views on the constitution?
An interesting legal challenge rose in Kenya on the legality of the Boumas Conference. The applicants had been left out of the constituent assembly for the drafting of the new constitution. They alleged the process was discriminatory. The court first noted that the constituent power of the people has juridical status, meaning that it could be subject to legal determination because it is a legal concept. Justice Ringera affirmed that the constituent power was primordial.
In his determination on the legality of Boumas he stated that ‘members of a constituent assembly had at least in the majority to be elected to represent their respective people in the business of constitution making….it would be to turn logic on its head to describe a body largely composed of unelected membership as a representative one’. How many of the proposed delegates to Zimbabwe are all stakeholders conference could claim to have a specific mandate of the people for constitutional making?
The MDC MPs and Senators can claim that one of the campaign issues of the MDC in the last elections was the need for a new constitution. Therefore they have the mandate from their electorate to participate. What then about Zanu Pf which never mentioned constitutional making in its campaigns?
To circumvent legal challenges arising from such scenarios Uganda and to some limited extend Kenya devised an election system for the purpose of electing delegates to the constituent assembly. Thus provinces could be declared electoral colleges and allocated specific seats on the constituent assembly. Whoever wants to be a delegate can campaign and seek the mandate of the people from the provinces.The desired outcome will be to have a constituent assembly that comprise more elected representation than unelected representation.
Lastly am convinced that there is room for flexibility on the issue of voting in the referendum. The 2000 referendum implied that there are only two possible thoughts, a Yes or a No. A Yes or No to the whole document does not capture the whole story. It is cumbersome and expensive but I think voting in parts will ensure that the constitution is scrutinised more and people will be more focused on narrow topics. It also has the advantage of singling out the controversial clauses without overshadowing the whole document. The rejected parts will then be retabled to the all stakeholders’ conference.