The Fundamentals of Constitution making in Zimbabwe – By Josh Chigwangwa
OPINION – A written constitution is something separate from and antecedent to government, something to be consciously framed as an act of deliberate choice and creation, which raises a question as to who has the right and the power to frame and approve it – the people or the government.
Obviously, if a constitution is the source from which government derives its existence and power, the government cannot logically make it; government cannot create itself.
The constitution cannot be the act of a government which is to be constituted by the constitution;something as yet to be constituted (and therefore as yet non-existent) cannot act.This becomes the focus source of friction in the process.
The focus of debate is to investigate the root causes of this instability in constitution making processes. The question of legitimacy of the constitution is concerned with how to make a constitution command the loyalty and confidence of the people.
In order for a constitution to command the loyalty and confidence of the people, the constitution must be understood and acceptable to the people.
To achieve this understanding and acceptance a constitution needs to be put through a process of popularisation with a view to generating public interest in it and an attitude that everybody has a stake in it.
The aim of the constitution-making process is therefore the achievement of a constitution that is legitimate,that guarantees rights and freedoms perceived to be fundamental, and that provides a structure for the effective conduct of the nation’s business for the achievement of its economic development and for the welfare of its citizens.
The height of challenges obviously are on how the issues of the rule of law, the property rights and freedoms of expession are formulated.
Appreciated, the constitution is no ordinary law to be modified or replaced by ordinary legislative processes. It must be perceived as a higher law,authorising and governing ordinary law, and commanding adherence to constitutional precepts.
While ordinary law may be adopted and altered by legislative majorities of whatever size, the adoption of a constitution and its amendment require much more widespread participation by the citizenry, and the achievement of a broad-based consensus.
The history of constitution-making in Zimbabwe has witnessed self-evident tension between the need to reach a broad-based consensus on the process of constitution-making on one hand advocated by the NCA, and the need to ensure that the authority of the government is not undermined on the other.
Experience has demonstrated that there is mutual mistrust that has underpinned the constitution-making process between the citizens and the government on the one hand and between the NCA and the State on the other hand. This resulted in the rejection in the 2000 referendum and subsequent episodes of stalemates being witnessed with current process.
The process needs to be created under conditions which provides for checks and balances in terms of the composition of the Constitution – Making Assembly on the one hand and the process of the creation of the provisions of the Working Document under the facilitation and direction of the Parliamentary Constitution Making Commission.