Constitution making road map – A case for Zimbabwe
OPINION – A review of Zimbabwe's Constitution is now being rolled calling for the participation of all Zimbabweans in crafting a historic document for the present and future generations. The controverses about the "Kariba Draft" appeared to hve been watered down in the interests of progress.
Local and donor resources have been pledged to ensure the successfull implementation of the consulation exercise in Zimbabwe in the next 65 days or so. The chairperson of the Commission indicated that consultations with people in the Diaspora will also be done and interest groups have shown willingness to meet travel costs for this exercise.
It is estimated that at least 4 million Zimbabweans are residing abroad all over the World, and hence the need to ensure a clear outreach strategy is adopted that will not disenfrachise the views of the majority of these Zimbabweans.
The challenges are on Zimbabweans in the Diaspora to ensure that there is some accreditation criteria for groups which may purport to represent them. This consultation is aimed at Zimbabweans irrespective of immigration status and as such there should be a way of ensruing that undocumented migrants views are taken on board, as these may be crucial in ensuring the credibility of views.
It is encouraging to note that the Commission acknowledges the apolitical status which these consultation needs to persue, as anything short of that will seriously undermine the objectivity of the views and how they will be considered for incorporationg into the draft.
The need formembers of the Commission to seoarate themselves from partisan groups in pursuit of this objective cannot be overemphasised, and only time will tell if they can withstand this objectivity test. Remedial measures needs to be in place to redress this issue should signs of it emerge.
In my earkier deliberation on this subject, l emhasised on the need for government to separate itself from this exercise and to play more of a facilitatory role in ensuring its succeessful implementation. Like l said, "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. Having said that, it is important to appreciate that there cannot be a vacuum in government at any one time to facilitate this role, hence it has to be tackled as part of a going concern, calling on the Constitutional Commission to display maturity, objectivity and professionalism in the conduct of its business.
This task will be challenging given the fragile and skewed nature of the GPA consultations running concurrently with this consulation. The task for the negotiators should be to tackle issues including the media outreach in a manner that will make this a futile exercise.
My view is that the Consitution takes precedence on all other matters as its successful implementation will ensure a stable and tolerant Zimbabwean society. A nation built on a firm rock foundation will not falter during trying times, and will always be there to provide values and ethics that will enshrine sovereign and universal appeal. I will liken this to a plane which is being guided and navigated by co-pilots.
The question of legitimacy of the constitution is concerned with how to make a constitution command the loyalty and confidence of the people on board, thus, the constitution must be understood and be an acceptable product of the Zimbabwean people.
To achieve this understanding and acceptance a constitution needs to be put through the process of popularisation with a view to generating public interest and participation 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. For Zimbabweans abroad, it should give them hope and inspiration in any corner of the World to openly invest in bringing about proeperity, growth to a one among a family of nations with its traditional global appeal. The key issues of dual citizenship, governance philosophy and protection of property rights will feature prominently in the diaspora.
Appreciated, the constitution is no ordinarylaw 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 National Constitutional Aseembly (NCA), and the need to ensure that the authority of the government is not undermined on the other hand. For all intents and purposes, ‘people-driven’ means involving key stakeholders in determining the points of consultation in the drafting of the constitution.
My view is that perhaps the Civil society groups need to learn from best pratises globally, to appreciate that as Zimbabweans, we have a sovereign state to preserve and that the participative role of the Civil society will always be a complimentary role to the State. Perhaps, it may be the lack of this appreciative role that has generated mutual mistrust that has underpinned the constitution-making process that resulted in the rejection of Constitution in the 2000 referendum.
Civil Society is ideally existing to provide for checks and balances in terms of the independence of the Commision in the discharge of its role. It is critical that as far as possible that this Commission be well resourced and be manned by a full -time Secretariat,contracted or seconded forthis specific task and directly reporting to the Commission for the duratiion of the process.
For all intents and purposes, l tend to agree with argument from other commentaries that ‘people driven’ means involving Zimbabweans and all key stakeholders in determining the content of the draft. The process will assume greater relevance if the thematic sub-committes transverse the length and breadth of Zimbabwe, including reaching out to Zimbabweans in the Diaspora, gathering their wishes and aspirations without political interference and intimidation. This will make the process acceptable to the majority of the populace, rendering the Referendum a formality.
It is also important to take a leaf from constitutional experiences of other countries as part of a learning experience. The South African Constitution is widely regarded as one such document we may benefit from noting that it has unique situations almost similar to our background and history.
I have discussed experiences from the Nepal’s constitution-making road map which we may also draw lessons from, particularly in the areas of terms of office for the parliamentarians and the presidium.
In conclusion, it is vital for the final document to jealously guard the rights and freedoms of its citizens, to deal with issues of corruption which have eroded the social fabric, to stregthen the independence of the judiciary, create a rationalised bureacracy and Executive which is optimum for the needs of our country and to address the issues of economic confidence and poverty alleviation among other key issues.