Lone ranger Prof Jonathan Moyo, Dictator President Mugabe and Kariba draft sidekicks Patrick Chinamasa, Prof Welshman Ncube and at the top Premier Tsvangirai together with the People Driven draft proponents Dr Lovemore Madhuku and Adv Eric Matinenga
The Constitution reform objective is emerging as the single most critical national agenda on the table of the coalition government.
Daggers are drawn by various interest groups seeking to assert themselves on the initiative and they will claim casualties.
Emotions are running high as they should in exercises of the importance that a Constitution is in a functioning democracy.
In politics a Constitution is a written statement outlining the basic laws or principles by which a country or organization is governed or alternatively a document or statute outlining the basic laws or principles by which a country or organization is governed.
From the definition above it is evident that the way countries are governed is a function of the manner in which they are constituted.
That is why Constitution making is a highly charged political process. Any entry in the country’s Constitution becomes a final measuring standard of the acceptability or otherwise of a behaviour or action by an individual within the borders of a State.
Because of this supremacy that Constitutional clauses have over any other set of rules, regulations and policies employed in moderating human political, social and economic interaction, anyone who gets caught up in the Constitution making process would want to ensure that the supreme law will guarantee the best of everything for him/herself at the individual and group level.
The reason why there is not scientific model of constitution making process is because the demand for supreme regulation of human conduct is informed by the desire to control unsavoury historical developments in the country by proactively imposing authority limits for the country’s leadership when confronted with similar and or variable challenges threatening the country’s welfare.
Clearly such monumental task cannot be entrusted to an individual or any homogeneous grouping of individuals with sectarian interests to protect without such individuals or groups taking advantage to guarantee protection of their narrow interests against interests of others.
Ownership of the Constitution making process must thus be internalised in individual citizens who must come together around the initiative to input their feelings about how they want the country to be governed.
To do so there is need for a champion to rise up among them and coordinate the
inputs and draft them in legal language that will be useful for the judiciary to determine disputes arising from perceived or real variations on expressed rules governing interaction and transactions between subscribers to the Constitution and their descendants.
In our country the Zanu PF government of 1995-2000 was pushed into leading a Constitutional reform process by demands from within and outside its structures which felt the successive Zanu PF governments had negated their mandates by relying on a 1979 Lancaster House constitution that had been rendered irrelevant by developments in the country’s political-economic and social management after the country attained political independence from the British imperialists.
Sadly Zanu PF used its political muscle to circumvent and suppress national views contrary to those held by the party and invited intense opposition from political competitors and a disenchanted Civil Society which felt Zanu PF had mutilated their submissions in the final draft.
When Zanu PF sought ratification of the draft in a referendum in 2000 the electorate was urged to reject ratification of the draft by the opposition MDC and NCA Civil Society organisation.
The draft failed to gain majority public support and the government was embarrassingly left stuck with a Constitution it had condemned as dysfunctional by crafting and seeking endorsement of the 2000 draft.
It was clear the electorate wanted a replacement Constitution but they did not just want a replacement that the governing elite preferred but one that they personally crafted and submitted to the government for adoption and not vice versa.
The lessons from the rejection of the 2000 daft that appear to have been beyond the comprehension of some politicians in the current government are in a nutshell that;
Zimbabweans will only ratify a revised constitution that regulates the concerns they want regulated and not what the government wants regulated;
The Champion of Constitutional reforms must be trustworthy and honest executing his mandate;
The data collection mechanism must be open and transparent and reach out to as wide a cross section of Zimbabweans to input their ideas without fear or undue influence;
Any attempts to smuggle power entrenching clauses for specific sectarian groups or powerful individuals will be quickly exposed by voluntary Zimbabwean brains within and outside the country who have keen interest in the process and its outputs;
Individual political affiliations come a distant second to self preservation concerns in the process and its outputs and unlike in other political initiatives Zimbabweans will ratify the Constitution purely on its outputs and not necessarily on its political correctness to the desires of the government of the day.
Most Zimbabweans want a Constitution that will be useful for managing expediency as well as the posterity and will reject clauses targeted at managing personalities as opposed to institutional conduct.
The integrity of some people currently slugging it out to emerge as undisputed Constitutional reform champions is so soiled that their interventions cause the greatest apprehension and mistrust in the process.
These include but not exclusively President Mugabe, Dr Lovemore Madhuku (NCA), Senator Patrick Chinamasa (Minister of Justice) Senator Welshman Ncube(Minister of Industry and Commerce) Professor Jonathan Moyo (MP)Dr Olivia Muchena (Minister of Women’s Affairsand Caesar Zvayi (Herald Assistant Editor).
Not that Zimbabweans deny the right of these people or those of their ilk to actively participate in the Constitution reform process but rather that they involve themselves at the same level as other Zimbabweans outside of the officially announced champions of the process.
Dr Madhuku’s demands that the process must be people driven resonates with those of the majority of Zimbabweans conscious about the process and able to project its consequences.
Unfortunately there is approximately 1:10 such people in the country’s populace and no more than 1: 20 willingness among this group of people to slag it out in the political turf of constitution making. Coupled with the crippling financial backing that group can attract to fund efforts to mobilise the populace against a coalition of the three parties holding all but one of legislative seats in the country, it is too much to expect that his position will prevail if push comes to shove with the politicians.
But fortunately for him Dr Madhuku’s position appears to have the sympathy of the most popular of the three political parties in the coalition government and the Parliamentary Constitutional Select Committee which he is publicly undermining by posturing as if his Civic organisation has a special mandate to champion the process.
The country is indebted to Dr Madhuku and his NCA for aligning with the MDC to champion the defeat of the 2000 attempt by Zanu PF to impose a Constitution that was crafted to entrench Zanu PF power as opposed to regulating the exercise of power by elected leaders.
Sadly though, but not anything for him and his organisation to regret, despite evidence that the championship of the process has relocated to Parliament at the expense of the NCA, the process appears to be largely travelling the route he and the NCA would have followed.
Professor Jonathan Moyo who anchored the publicity campaign for the failed 2000 draft would want us to believe that there is a scientific approach to Constitution making which the current process has negated.
He has been at the forefront of slamming the assignment of Parliamentary Select Committee to champion the process and its restricted terms of reference that restrict it to market the Kariba draft and ensure it is adopted as the country’s next substantive constitution without variation.
His gripe with the Parliament facilitation of the process is simply a case of sour grapes as he has not been appointed as one of the 25 members to champion the process.
His concern about the process being narrowed down to adoption of the Kariba draft is widely shared but is baseless as it is motivated by fears that because the view has the President’s support it will prevail against the wishes of the majority.
In the president’s corner is his reliable foot soldiers and hardliners led by Patrick Chinamasa and Dr Olivia Muchena supported by blind Zanu PF followers driven by propagandist Caesar Zvayi at the Herald and many others in State media.
The blind and dangerous Zanu PF foot soldiers are being rallied behind adoption of the Kariba draft on false allegations that the country does not have the funds to carryout extensive outreach programmes to collect input for the new constitution because-you guessed it right- of the illegal sanctions imposed on the country by the Western imperialists.
Industry and Commerce Minister Professor Welshman Ncube widely held as the driver of the MDC-M faction led by Professor Mutambara is at loggerheads with his party President on the process as he has thrown his weight behind President Mugabe’s insistence on the Kariba draft while the party President appears amenable to a wider consultative process.
The real reason behind President Mugabe’s demand that the Kariba draft be the sole reference point for the Parliamentary select committee in crafting the new constitution has nothing to do with sanctions and funding of the process.
It has everything to do with what will happen after the country manages to craft and legislate a new constitution.
Both President Mugabe and Professor Welshman Ncube are fully conscious of the state of affairs in their political formations. They are both in total disarray and cannot win an election that is free of violence and managed by an independent electoral commission.
Yet in terms of the GPA that legitimises the coalition government at the end of the Constitution reform exercise the coalition is constitutionally required to review its legitimacy and seek public endorsement of its continuation in office from the electorate.
Any delays in reaching that point avails time for the two formations to regroup and cease momentum from the runaway lead the MDC-T formation is accumulating from its involvement in the coalition government.
The reality though is that it will need some miraculous intervention for the MDC-T to lose its support as nothing the other two parties has done so far seems to be working in their favour.
That is why it is so important for President Mugabe to team up with Professor Ncube in throwing obstacles into the smooth conclusion of the constitution reform process by making outrageous demands that the process must be limited to adopting a Kariba draft that the electorate has had no direct input into its formulation or crafting.
There are arguments that the reason why President Mugabe prefers the Kariba draft is because it retains a Presidency with unfettered draconian powers that he has abused for the benefit of his party in the past three decades.
While it is true that the Kariba draft creates a utopian Presidency, the point is missed that he is not guaranteed the post if the same draft allows for free and fair elections which it does not.
It fails to do so in that it permits the sitting President to appoint and direct the functions of the electoral Commission and all other National commissions as well as it empowers him to rule by decree.
This is only in issue because President Mugabe is the current occupant of the position and can use it as he has done in the past to entrench the Zanu PF hegemony.
That is why it is imperative that the nation must come together and oppose his attempt to set parameters that restrict the constitutional debate to a draft that the people were not consulted about when it was crafted.
President Mugabe and his supporters must be encouraged to continue relying on the Kariba draft if they believe in it but must be discouraged to force it on everyone else simply because he is the sitting President.
Equally important Professor Ncube must continue supporting the Kariba draft because he was one of the three lawyers that drafted it but he must never be allowed to team up with President Mugabe in selling the falsehood that the Kariba draft was agreed upon by the parties to be the constitution that will end the lifespan of the coalition government.
If indeed that was the case why does he not move a Kariba draft Constitutional bill in Parliament as happened with the agreement on Constitutional Amendment No 19.
The undisputed fact of the matter is that the Parties agreed on the Kariba draft with a view to use it to manage the lopsided March 2008 electoral playing field but ditched it in preference of Constitutional Amendment No 18.
When constitutional amendment No 18 resulted in the unprecedented defeat of
President Mugabe in the crucial presidential segment of the harmonised election, he then invoked his limitless powers to force through a runoff election outside prescribed limits and ordered the military to campaign for him with ruthless violence and impunity.
Now that the situation has not improved his party’s fortunes the President wants to retain the same powers he invoked in 2008 to save him from inglorious exit from power to do more of the same come the envisaged elections to end the coalition union.
Forget the rhetoric coming from the Premier’s office that he will stick with the coalition union even in the face of a threat of going down with the President. All the MDC wants is to ensure that the new constitution is adopted and legislated allowing it to have a say on who will manage the electoral process that has been its Achilles heel in ascending to power in the past.
The moment a constitution that allows the party sway in who will superintend the electoral process and who will monitor it, the coalition union will collapse under the weight of pressure for the holding of elections. Zanu PF will be defeated in such elections without recourse to manipulating the result in its favour through the National Presidency.
Every Zimbabwean has a right to be involved with the Constitution making process regardless of whether the president likes it or don’t.
If the President prefers the Kariba draft clauses he must campaign for it but not decree its adoption as that will be rejected at the referendum which will not help the country or his scattered party in any way.
There was never an agreement that the current Constitutional process would have only the Kariba draft as the source of reference for the nation in crafting their constitution as Professor Ncube, Patrick Chinamasa and President Mugabe would like us to believe.
What is evident from reading the GPA is that the Kariba draft was averred to in Article 6 for the purpose of incorporating contents of its Chapters 4 and 13, and section 121 in Constitutional Amendment No 19.
Chapter 4 of the Kariba deals with the contentious issue of Citizenship in the country and clause 121 created the Parliamentary Committee of Standing rules and orders in its current format while Chapter 13 deals with the setting up of National commissions and the procedures to be followed in manning them.
These are the issues that were agreed upon for the purposes of ensuring smooth functioning of the coalition government which were incorporated into Constitution amendment No 19 from the Kariba draft without them being re-written into the Statute.
Whether or not they will be retained in the new Constitution as they are in CA No19 must be left to the conclusions of the consultative process currently under way and if approved varied or discarded that must be the people’s prerogative.
There is nothing in the GPA binding people to accept those political tradeoffs that were adopted from the Kariba draft or any other political process past or present if they do not resonate with current public thinking and its vision of how a prosperous Zimbabwe can be secured through its constitution.
Finally it is not up to the press to lead public opinion to a position other than that which supports their needs desires and wants for now and in the future.
To suggest that because the Kariba draft retains draconian presidential powers it does not curtail Mugabe’s further attempts to regain Presidency in the envisaged two five year term limits is as bad as Mugabe suggesting that the Kariba draft must be adopted because it was agreed upon by Zanu PF and the two MDCs.
Mugabe has every right to seek re-election to the Presidency if the people accept a Constitution that does not take into account past service in the same capacity. The Kariba draft actually disqualifies those that have held the Presidency for over the envisaged 10 year two term limitation it envisages for the incumbents of the post.
The Kariba draft has this to say about disqualifications from seeking the office of President at section 81(2);
"A person is disqualified for election as President if he or she has already held office as President after the appointed day for two terms as defined in section eighty-four.”
The only question needing clarification is the meaning is the phrase “after the appointed date” which is not defined in section 84 as inferred.
This is not to say I or anyone else for that matter should support any of President Mugabe’s bidding for retention of the position but merely to highlight that it is improper to campaign for the rejection of a proposed Constitutional draft on account it does not bar past Presidents from seeking re-election that will extend their aggregate terms in office beyond the envisaged maximum 10 year period which it clearly does albeit in language needing to be made more unambiguous.
The bottom line is that the constitutional debate must never be allowed to be hijacked and privatised by anyone through reference to previous events and or private treaties between interest groups that purport to have been mandated by the people.
Anyone with such legitimate claims should be prepared to test them in the current debates and if the claim is authentic it will prevail.
That is how democracy must support principles of self governance in practical ways.
But when people like President Mugabe, Patrick Chinamasa and Professor Welshman Ncube team up to support adoption of a draft constitution they know never sought public opinions about its contents and yet their presence in leadership positions is mired in controversy having tested the popularity of their ideas by seeking election and suffered crushing defeats, their support can be reduced to arrogance that they can thumb their noses at the electorate and get away with it.
That has to be stopped and the best way to do so is to reject their call for the Kariba draft to form the exclusive basis of the country’s Constitutional reform agenda and process.
The Parliamentary Select Committee currently spearheading the process must hold steady and proceed by way of the consultation process they are pursuing at present, craft a draft there from and present it for debate to the stakeholder conferences deemed sufficient to endorse its contents as having come from the people and not the President, Government or Parliament.
That done, the draft must then be put to referendum and if passed, referred to Parliament for legislation.
The Zanu PF threat led by the President that the Party has an opportunity to derail the process in parliament will fizzle into thin air as any attempt to block a referendum passed statute will expose the opponent as the real enemy of the state a tag Zanu PF has hitherto attached to all its opponents.
That will be the sad end of a political formation that has won the country its political independence only to supplant itself as a more vicious institution than that it had dethroned.
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