- Last Updated on 10 September 2012
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By Tendai Biti Finance Minister and MDC-T Secretary General
The debate around the new constitution has become bastardised and wallowed in mediocrity and downright ignorant adulteration. Salubrious, incoherent and non-germane issues have been brought to the forefront which has clouded the substance around the constitution and in the process confused the public and deny the public of an honest genuine debate on the content of the constitution.
In this regard, the chaos faction of Zanu PF must take full responsibility of high-jacking the constitutional process in pursuit of their megalomaniac and bottomless factionalism. A scorched earth policy, reminiscent in the Solomonic parable of the mother who declared that the baby must be cut in half is mercilessly being pursued. The chaos faction now dominates the public media in particular the columns of The Herald and The Sunday Mail and the shallow, incompetent and clueless commentators euphemistically referred to as analysts on ZBC.
The press too, consciously or unconsciously has unabated the murkiness by failing to expose the key issues and by being side tracked into side shows like running mates which is not a broad issue in the constitution making debate. Great responsibility too must be taken by the academic and civic movement which has remained mute in the current civil war and has failed to articulate and even expose at a mere descriptive nature the contents of the current constitution and what each one means to the people.
As a result, the majority of our people remain in the dark on issues at stake. At least in Matebeleland the people are clear on the issue of devolution and attempts by Zanu PF to annihilate this principle in their own demonic draft. Most people having watched Zanu PF shenanigans in the last three weeks and their endless meetings have come to the simple conclusion that if Zanu PF is rejecting the Copac draft when their signatures are on it, then the Copac draft must be supported. It is an unscientific way of decision-making but one which in the black and white scenario of Zimbabwe works well. If you are in doubt, go the opposite of Zanu PF.
In this article I propose to highlight the key milestones of the Copac draft that was signed on the 18th of July 2012.In doing this, let me underscore from the offset the fundamental point that the constitution of any country is primarily a contract between and amongst citizens on how they want to be governed. It thus represents, the highest codification of the social contract. In making this point, it should also be understood that like in any other contract, the bargaining positions of the contracting parties is a key consideration. In short, in addition to being a contract, it is also a power document representing at all material times the interests of the dominant or ruling class.
Modern constitutions negotiated under more democratic matrixes, thus, have a more democratic people orientation reflecting the victories of the working people against power and abuse. The whole history of modern constitutions starting with the Magna Carta, the America Declaration of Independence and the French Revolution predicate that in general terms constitutions are the outcomes of revolutionary protests against power and its abuse thereof. The same is true of the American constitution of 1774 as it true of the Zimbabwean constitution of 1979 as it as true of the South African constitution of 1994.Thus, if a constitution is a product of a struggle, the question that arises is, does it create a new legal and political order and does it represent a break from the past? In short, is it a new beginning?
In my respectful opinion, there are six principles that we must use to judge the Copac draft of the 18th of July and should it pass this criteria then it must be an acceptable document. These are the principles:
# Does it break with the past and establish a new order?
# Does it protect the people against imperial power?
# Does it establish and protect a clear separation of power and authority in state structures?
# Does it create independent institutions, particularly, those bulking against power and big government?
# Does it articulate the developmental aspirations of the people?
# Does it create mechanisms for state and generational succession and regeneration?
I now unpack these criteria.
Does it create with the past and establish a new order
The current Zimbabwe state is based on the values of corruption, violence, hooliganism and predation, that in any event is the DNA of Zanu PF. The preamble to the Copac constitution makes it very clear the in the determination to create a new Zimbabwe underpinned by the values of the rule of law, democracy, the dignity of hard work and the supremacy of God almighty.
More importantly, the Copac constitution in the founding provisions, seeks to create a new Zimbabwe founded on uncontestable founding principles that are a departure from the current crass of autocracy and vicious cycles of predation. The founding principles include; a. the supremacy of the constitution above any individual organ or law; b. the rule of law; c. fundamental human rights and freedoms; d. gender equality; e. good governance; f. orderly transfer of power following election; and g. the recognition of all languages as official languages of Zimbabwe.More than anything else, the many new concepts and layers that this draft seeks to create as devolution and independent commissions underscore that break with the past.
Does it protect the people against imperial power?
The Copac draft deals with imperial power in four respects. The first is the creation and definition of citizenship that is broad and inclusive. Citizenship is acquired through birth, descent and registration. The definition of citizenship by descent is wide and more importantly all citizens have equal rights. Another issue dealt with decisively is the question of citizenship in respect of third or fourth generation Zimbabweans born from great or grandparents that came from SADC countries as immigrant workers, the so-called aliens from Nyasaland or Blantyre. The Copac constitution now makes these so-called aliens citizens of Zimbabwe by birth.
The second and more decisive issue is a comprehensive bill of rights providing for both first generation and socio-economic rights. The bill provides for exciting rights such as the right to personal security, the right to life, equality and non-discrimination, the right to demonstrate and petition. In Article 4.7 the bill provides for comprehensive rights for arrested and detained persons which are revolutionary in our law whilst in article 4.24 it bestows comprehensive political rights on citizens. With regards to rights to education and health, the State is obliged to provide a basic state-funded education and access of basic health services including reproductive health services.
The third and most important manner in which this constitution protects the people is by creating a democratic and accountable president. The mischief that we have lived with as Zimbabweans is that for the last thirty-two years this country has been run by an imperial president that has had more powers than the philanderer Henry the VIII. Mugabe has and still exercises such autocratic de facto and de jure powers that make many imperial presidents envious. He makes laws, appoints judges, appoints government and its officials, dissolves Parliament willy-nilly and has absolute control of the securocrats.
The Copac draft creates an Executive President that shares power with Cabinet that cannot make policy without Cabinet, that does not substantively appoint judges, that cannot dissolve parliament, that cannot unilaterally declare war or a state of emergency. It creates a president that does not have immunity for any crimes or omissions committed during his or her term of office. Furthermore, it creates a president and a Cabinet that can be recalled by Parliament. This is a new thing for Zimbabwe and for Zanu PF. This is why the biggest cry from Zanu PF has been against this new democratic president.
The fourth manner in which this constitution protects the people is by creating a security service that is subordinate and subject to the constitution, parliament and an elected executive. That constitution even creates a public complaints body against the omissions and commissions of the security services that include the CIO. More importantly, security chiefs like the president are now subject to a limited tenure of office of two five year terms. There are limited terms of offices for permanent secretaries, heads of parastatals and those heading government bodies.
Does it establish and protect a clear separation of power and authority in the state structures?
Indeed the Copac draft creates traditional organs of state power that is to say judiciary, legislature and executive. However, unlike the current constitution, where one office and one individual totally subordinates the other chambers, the same is not the case. There is a judiciary consisting of a Constitutional Court, Supreme Court, High Court and other courts. Judges are appointed nominally by the president but only from a list provided by parliament following a process of public interviews. There is a legislature consisting of a Senate and the National Assembly. Unlike the present position, the president does not have the power of unilaterally dissolving a parliament save when an election is due. The existence of executive commissions such a public service, police and correctional service commissions, which are more structured than now also reinforces this doctrine of separation of powers.
Does it create independent institutions, particularly, those bulking against power and big government?
Yes it does. This constitution creates important institutions in our law which include an independent anti-corruption commission, auditor general, gender commission, human rights commission, media commission.
The most important commission is arguably the National Prosecuting Authority that is created to ensure that the prosecution of criminal justice is de-Zanunised and depoliticized. This is an important break with the past. It is thus not surprising why Zanu PF is fighting against this clause.
Another important commission is the National Peace and Reconciliation Commission which among other things will deal with our past and our future given the periods of hard and soft genocides we have seen in this country from Gukurahundi to the death of Solomon Mujuru to mention a few. Again not surprisingly, Zanu PF does not want this.
Does it articulate the developmental aspirations of the people?
Yes. Firstly, one of the founding principles of this constitution is that of equality and inclusivity. A nation cannot develop when other citizens are innocent bystanders and onlookers. By creating strong and clear provisions dealing with the issue of gender equality, the Copac draft makes women central players in our discourse. The gender provisions in this constitution even go further than those in the South African constitution.
Secondly, by creating a devolved state, which now operates through the mediums of provincial and metropolitan councils, the Copac draft is recognizing the right of communities to manage their affairs and to further their development. This is reinforced by the obligation in article 17.4 of the same of ensuring that there is an equitable allocation of capital grants to provinces and that not less than five percent of the budget is allocated to the provinces.
An important developmental issue dealt with the constitution is the land question. Whilst in article 4.29 the land reform program is made permanent, in chapter 16 of the same, the land reform program is now democratized that all Zimbabweans irrespective of race, tribe or colour can be beneficiaries of the same. Thus security of tenure is now bestowed on everyone and any person in Zimbabwe has the right to own, sell, lease, hypothecate or transmit any land right.
From an economic point of view, this is critical. The constitution now allows the restoration of a private property market in Zimbabwe that will transform current agricultural land from a dead asset into a live asset. Farmers will now be able to capitalize their farms and the majority who are now farmers can sell or lease to better-equipped Zimbabweans of any race or tribe who can use this land productively. Chapter 16 thus allows this country to put a decisive full-stop on the land question.
Does it create mechanisms for state and generational succession and regeneration?
Yes. The constitution provides for harmonized elections every five years. Unlike in the present position, the election can only be held in the last thirty days of the term of office of the existing parliament. Thus no one can be taken by surprise.
In addition, by defining free and fair elections and the orderly transfer of power as a founding principle, this constitution is predicating stability and evolution of state power.
More importantly, by placing terms of limits on the president, securocrats and top government heads, this constitution is guaranteeing evolution. More so given that these provisions cannot be amended without a referendum and even when they are amended they will not benefit the serving incumbent.
By providing for two running mates, the constitution is also dealing with the fundamental disease in Africa. The founding fathers of Africa, be it Siad Baare, Hassan Mwinyi, Jomo Kenyatta, Robert Mugabe, Kwame Nkrumah, had and have one disease that of predatory permanents.
The issue of a running mate thus provides the basis for an orderly transition as we happily saw in Malawi, Ghana and now Ethiopia. Where Africa's big men had no orderly succession, the nation state hardly survived after them. Somalia, Ivory Coast and the Democratic Republic of Congo are living examples of the "big-men void".
The long and short of the above is that whilst the Copac draft is not the best constitution Zimbabweans could have written, it represents a major starting point and a point of departure from the status quo. That is why some of us who have spent all their life fighting for a new order in Zimbabwe will support it. In the next article, I will present the heresy and infamy presented by the Zanu PF amendments to this draft constitution.