With at least five amendments regarded as imperfect even by some in Mugabe’s inner circle, the need for a new democratic constitution cannot over-emphasised.
A constitution may be defined as ‘a document having a special legal sanctity which sets out the framework and the principal functions of the organs of government within the state, and declares the principles by which those organs must operate’ (E. C. S. Wade and G. Godfrey Phillips, Constitutional and Administrative Law, Longman: London, 9th edition, page1). In the case of Zimbabwe, Zanu-pf is the ‘State’ and the State is ‘Zanu-pf.’
What the experts say about the Kariba Draft
The National Constitutional Assembly (NCA) has focused its criticisms on the process, substance of the Kariba Draft, Structure and powers of the executive, presidential appointments, the legislature, the judiciary, elections, rights and national objectives, local government and the devolution of powers and size of government (‘Exposing the shortcomings of the Kariba Draft Constitution’, Zimbabwe Independent,02/07/09).
The NCA argues that very little is known about the process that went into the creation of the Kariba Draft Constitution because it was written during ‘a clandestine meeting between the principal negotiators of Zimbabwe’s three primary political parties’. Nearly all of the weaknesses that led to the rejection of the Constitutional Commission proposal (2000 Constitution) are replicated in the Kariba Draft. The Kariba Draft allegedly makes the removal of a member of parliament automatic after he/she has been absent for 21 consecutive sittings, a move suspected to target opposition politicians forced into hiding.
Structure and powers of the executive
Under the Kariba Draft, all executive authority rests in the president and the office of the prime minister is completely absent thereby removing a vital check on the power of the president.
The Kariba Draft does away with checks and balances on the president’s power to make appointments of vice-presidents, judges, senators, ministers and diplomats by eliminating the office of the prime minister.
The Kariba Draft allows the president to appoint 17 senators, dissolve parliament at any time, override proposed legislation and perhaps escape impeachment. The Draft allows the President to declare war without consultation (http://zimbabweonlinepress.com).
The Kariba Draft fails to ensure the independence of the judiciary by giving the president or his/her appointee additional control over the structure of the judiciary.
The Kariba Draft Constitution provides for an electoral commission that is insufficiently independent.
Rights and National Objectives
The Kariba Draft fails to protect many vital rights such as the freedom of the media and the right of workers to strike. While social and economic rights to housing, education and health are covered in "national Objectives" of the draft, compliance is not mandatory.
Local Government and the Devolution of Power
Provincial and local bodies that are provided for in the Kariba Draft may be manipulated by the central government e.g. provincial governors are presidential appointees.
Size of Government
According to the NCA, the Kariba Draft, opens the door for a bloated and inefficient government because it allows the president to appoint as many ministers as he/she chooses.
Other critics say the Kariba Draft is worse than the constitution that was rejected in 2000 because it gives the president unbridled powers such as ‘a clause permitting Mugabe to serve another two five- year terms. Heaven forbid!’ (The Zimbabwean, 01/07/09).
The case for alternative constitutions
In contrast to the Kariba Draft, the Law Society of Zimbabwe Model Constitution provides for various checks and balances, ensuring the separation of powers and civilian control of security services. The LSZ Model Constitution provides for an enforceable Declaration of Rights; a bi-cameral elective legislature (with no appointed members); a parliament that is independent of the executive by determining its own sittings; a non-executive President as Head of State elected by Parliament and an executive Prime Minister or Head of Government elected through a nation-wide ballot for a 5-year term though Parliament will have power to vote him/her out of office.
Under the LSZ Model Constitution ministers will be appointed by the Prime Minister, not the President; Judges will be appointed by the President on the advice of the Prime Minister. The security services – Defence, Police, Prisons and intelligence will be subject to civilian control. There is provision for independent commissions covering Judicial Services, Public Service, Human Rights, Gender and Anti-Discrimination, Truth and Justice, Land, Media, Conflict Prevention, and Security Services. There will be extensive devolution and autonomous local government institutions.
How did the Kariba Draft come about?
In a statement, MDC’s spokesperson, Nelson Chamisa said the Kariba Draft was a compromise document drafted by three political parties and initialled on 30 September 3007 to minimise the possibility of a contested election result in 2008, in line with a SADC resolution that had given birth to the dialogue. It was an interim Constitution that was meant to be used only for the 2008 election, but on 4 December 2007, Zanu-pf refused to implement the Kariba draft. Its function and intended purpose therefore died on 4 December 2007 because of Zanu-pf ‘s intransigence.
"Zanu-pf cannot resurrect a document meant for the 2008 election which they rejected and turned down in December 2007. They must not be allowed to sneak it through the backdoor when Zimbabweans have ample time to make their own Constitution", said Chamisa. He also disputed the Zanu-pf position as expressed in the Herald giving the impression that the GPA had made the Kariba Draft it’s reference document.
Senator Obert Gutu of the Movement for Democratic Change (MDC) led by Prime Minister Morgan Tsvangirai declared: "Nowhere in Article 6 of the GPA is it unequivocally stated that the Kariba Draft should be the ONLY reference document for the constitution making process".
Media reports said that after an extra-ordinary national executive meeting on Tuesday, 23 June 2009 the MDC –T resolved to reject what it called ‘any attempt by Zanu-pf to foist the Kariba Draft, or any other draft, on the people’ (Zimdiaspora, 25/06/09).
However, an "agreement" allegedly signed between Zanu-pf and the two MDC formations on 23rd of July 2009 claims Jomic agreed to make Kariba Draft ‘Reference Document’. The report shows that Tendai Biti of MDC led by Morgan Tsvangirai did not sign the original document while his colleague Elton Mangoma reportedly signed the original document alongside Priscillah Misihairambwi-Mushonga (MDC-M), Welshman Ncube (MDC-M), Nicholas Goche (Zanu-pf) and Patrick Chinamasa (Zanu-pf) (Zimbabwemetro.com, 28/07/09).
Given the confusion caused, it is imperative for the MDC to effectively inform the public about the correct position. Equally, unclear is which constitution the MDC is going to promote at the referendum if Zanu-pf will be campaigning for the Kariba Draft. Suggestions of a negotiated constitution made by MDC leader Morgan Tsvangirai in September 2010 have raised eyebrows that the country could be ‘bracing for another Kariba Draft’ (Zimbabwe Independent, 17/09/10). Hopefully, it’s a dead issue now.
What Mugabe is doing to promote the Kariba Draft
Mugabe has never stopped using ‘politics of labelling’ or what Brian Kagoro called the art of ‘kusvibisa’ (techniques of soiling someone’s image) to undermine opponents as Alex Magaisa once wrote (Zimbabwe Standard, 27/02/10). Labels like ‘mutengesi’ (a sell-out), ‘puppets’ and so on are known to stick in people’s memories especially those who may not be discerning or are prone to manipulation. Apart from that, Mugabe uses diversionary tactics to great effect and political blackmail to undermine his opponents and avoid focus on unresolved GPA and human rights issues.
During the constitutional outreach programme the youth militia, CIO, the military and war vets were deployed to drum-up support for the Kariba Draft ‘against those trying to reverse the gains of the land reform programme’. Villagers were allegedly coached to back the Kariba draft. In January 2010, a senior air force of Zimbabwe Air Commodore was named as one of several military officers leading a campaign to force villagers in Manicaland to attend Zanu-pf meetings in support of the Kariba Draft.
People in Mugabe’s rural home in Zvimba, 110 km west of Harare, and neighbouring Chitomborwizi in Makonde district allegedly now strongly believe that those calling for a people-driven constitution, who are opposed to the Kariba Draft, want to include the issue of gay rights in the new constitution.
"Masoja akati addresser three weeks ago. Vakatiudza kuti vanhu ava varikuda zveconstitution nyowani isiri yekuKariba, varikuda kuti tibvume zvechingochani. Ah, kana ndiwe mwana wangu, zvingaite here kuti ini ndidanane nambuya ava? Kwete hatidi izvozvo. (We were addressed by soldiers three weeks ago. They told us that those opposed to Kariba Draft want a new constitution to allow homosexuality. My child, how can I have a lesbian relationship with this old woman? We say no to that)," said an elderly woman (Zimbabwe Independent, 01/07/10).
Some analysts feel that if people refuse to endorse the Kariba Draft, Mugabe can block the draft constitution in Parliament; refuse to call a referendum on the constitution; or refuse to sign the draft into law once it is passed by Parliament (Stanley Gama, ‘Zanu-pf wants Kariba Draft, or nothing else’, 08/02/10, zimtransition.com).
Why Mugabe should go now
That Mugabe must now go is no longer a dismissible opposition slogan but a strategic necessity that desperately needs urgent legal and constitutional action, according to Jonathan Moyo, before his re-admission to Zanu-pf in 2009.
"Perennial wisdom from divine revelation and human experience dictates that all earthly things great and small, beautiful or ugly, good or bad, sad or happy, foolish or wise must finally come to an end. It is from this sobering reality that the end of executive rule has finally come for Robert Mugabe who has had his better days after a quarter (now over a quarter) century in power", he said in one of his articles.
Elsewhere, Moyo said:
"When Mugabe says the crisis started in 2000 due to the rejection of the land reform programme by Britain and its allies he is not telling the truth. Many in his government and party know that the crisis started on August 16, 1997 when the compensation for veterans of the liberation war became an economic albatross to the fiscus. It is also a widely known fact that the demands for a new democratic constitution started well before 2000. Indeed, the MDC itself was formed before 2000."
Our next installation will be on what could have earned Attorney General Johannes Tomana a coveted entry on the targeted sanctions list.
Clifford Chitupa Mashiri is a political analyst and regular columnst with The Zimbabwe Mail. He can be contacted at London firstname.lastname@example.org