NCA Chairman Dr Lovemore Madhuku threatens to derail the constitution reform mission.Sparks are already flying from the Zimbabwe constitution reform epicentre at the Zimbabwe Parliament before the core group selected to spearhead the drive for a constitutional order to replace the nearly 4 decade old Lancaster House crafted supreme law of the country.
The 1978 Lancaster House constitution was agreed between the tripartite negotiating forum involving exiled Patriotic Front of ZAPU and ZANU liberation political formations on one hand and the Internal Settlement alliance that bunched colonial renegades led by Ian Smith and locally based Black Zimbabwean political formations led by the UANC’s Bishop Abel Tondekai Muzorewa and included ZANU led by founder Reverend Ndabaningi Sithole and ZUPO’s Chief Jeremiah Chirau anchored by British imperialist represented by the Queen’s government.
There were no lesser sparks flying from that forum than we are witnessing from the ominously similar tripartite negotiating forum involving Conservatives in Zanu PF and Labour representatives in MDC-T and tribally based Liberal Democrats in MDC-M.
The major difference between the 1978 process and the current is found in the represented interests in the process and the added dimension of a more vocal and better empowered Civil Society which was not a major concern in the 1978 process.
The 1978 process was obsessed with reconciling foreign settler political domination and divisionism interests against local indigenous demands for overriding political powers and the right to self rule.
In the current process the process seeks to consolidate the gains from the 1978 process and remove the element of foreign interests in our politics at the same time it tightens on democratic governance loopholes that have emerged from the 1978 constitution.
In the current initiative, like was the case 1n 1978 the need for a new constitutional law is self justifying given that the 1978 supreme law was never intended to be a permanent statute but a transitional law from colonial rule to sovereignty.
That an interim constitution has survived 4 decades albeit with serious amendments on 19 occasions to align it with changed value systems in the country defies logic and has united the nation on the need for a replacement supreme law to accommodate current political thinking rather than a heavily patched one which is reactionary to political developments.
Under normal circumstances where there is national consensus on a need there should be minimal or no conflict on the redress process. However because the constitution is a foundation law for political governance there will be, as has been the case elsewhere, strong competing political interests that cause friction and conflict in people. People will differ on preferred methodologies to crafting the supreme law based on how they saw the process' ability to entrench their underlying political values.
By its nature Constitution making is a critical political project that capacitates politicians to exercise political power and dominion in a certain way without attracting undue criticism over what would be considered excessive abuse of power under a different constitutional order.
Because of that it is hardly surprising that political interest groups by whatever name they prefer to be known –Party, Civil Society or simply People-that will be subjects of the supreme law would want to see in place a process that has the greatest chance of producing a law that puts them at an advantage to exercise power and influence on governance.
The current sparks flying across Zimbabwe’s political parties and Civil Society in any direction are a manifestation of this latent desire to get a grip on the process and manipulate it to best advantage of those initiating the sparks.
Forget the hype about people-driven constitution as if ever there was any other known animal species-driven constitution in existence on planet earth and some such other slogans in the constitution making process.
All known and existing constitutions throughout the world were made by people. The trendy phrase people-driven constitution is a rallying slogan that is cynically used to disown certain categories of people from the constitution making process or at the very least demean their relevance in the process.
The current process in Zimbabwe has been tagged a parliament-driven process. The term is used derisively as if parliamentarians are not of the human genre. Their participation in the process is pre-qualified as occupation driven sectarian interest in the process as if everyone else’s participation is devoid of professional and or sectarian interests.
Nothing can be further from the truth than that. All people seeking involvement with the constitution making process are politically conscious of the value the process and result have on sectarian interest they value and wish to advance.
The better politically organised they are the more defined their interests and the more seniority they seek in the process to be able to manipulate it in their favour.
The reason why the coalition governing parties agreed on a constitution making process championed by parliament yet open to accommodating other interest groups of people is because the parties are concerned about electoral, economic and political abuses that have passed through the safety net provided by the current constitution.
The anticlimax end of the harmonised elections in March 2008 demonstrated all the political concerns that the parties want addressed to avoid recurrence of similar deviations in future elections.
Similarly those claiming to be of the people-driven constitution making process champions have well defined concerns about how the politicians have denied them fundamental human rights enjoyed by other citizens universally which they yearn for.
Their desire for a process driven by none governmentally tied players is motivated by a compelling desire to reign in the political abuses of the past and hold politicians accountable to the Civil liberties advocates and dictates they subscribe to by securing legal guarantees of their collective supremacy over government.
That is why now there are two parallel forces demanding supremacy over ownership of the process an interestingly both claiming to be championing a people-driven constitution making process.
Within the main groupings one championed by Dr Lovemore Madhuku of the National Constitutional Assembly (NCA) civic group and the other by the three coalition government principals there is no homogeneity in interests to be served by the Constitution reform process and its outputs.
There are diverse and sometimes competing interests that are triggers of the friction now evident from the process.
It is simply not true that there is a single entity that is championing all the diverse interests represented by the constitution making process. The brutal truth is that each interest group vying to control the process has embedded interests that must be satisfied from the process.
That is why talk of people-driven is cheap point scoring politicking emerging from the process.
The reason why there is no dispute about the need for a home grown supreme law is because the interests served by the current constitution have been superseded by changed political circumstances in the country and the emergence of newer threats to power hegemony requiring proactive management through a new constitutional order.
Zanu PF has been entrenched in uninterrupted power for the past four decades during which it has fenced its hegemony with a raft of laws it fast tracked through the Legislature in which it enjoyed an unassailable majority through Presidential appointees whose only loyalty and accountability was to the incumbent President rather than the electorate.
The President was constitutionally assigned draconian powers wherein he literally held 20% of the national vote as an individual.
The political competition was restricted to the remaining 80% of the political space in the country.
Hitherto passage of Constitutional amendment number 18 the party that controlled the national Presidency had a 20% head start in legislative elections which competitors had to overhaul first before entertaining any thought of wrestling legislative control from the ruling party.
The ruling Zanu PF party took full advantage of their exclusive dominance of the Executive and numerical advantage in the Legislature to assert dominance over the Judiciary thereby neutralising any oversight roles that the three pillars of governance are designed to serve in an ideal democracy.
As a consequence of the diminished relevance of the Legislature and the Judiciary to the exercise of power the Executive developed into an autocratic monster that relied on the use of patronage incentives to coerce compliance with its desired national policies and programmes rather than inclusivity to establish needs and wants of the generality of the people in the country to design policies and programmes that served those needs.
This provided fertile breeding grounds for corrupt practices at all levels of governance as the underpinning concept in all corrupt practices of denial of access to induce compliance became a norm rather than an exception.
Immense political, economic and social benefits accrued to those fortunate to be in the right places at appropriate times as they accessed the lion’s share of limited national resources and amassed them for use in coercing the disadvantaged to pay homage to them to have any sniff at the benefits.
Given a choice Zanu PF would rather retain the constitution that allowed it to exercise power with such impunity and yet kept the party insulated against public accountability by state organs such as the Legislature, the Judiciary and the Security forces all of which the Executive pampered with sufficient benefits to retain loyalty.
Those that resisted the corrupt advantages were isolated and individually plucked out of the system exposing them to militant abuse and economic deprivation.
Unfortunately for Zanu PF the patronage system induced laziness as the wealth creating work ethic was slowly replaced by the get rich quick mentality that characterises patronage systems wherever they are found.
The demise of the national work ethic triggered increased competition for dwindling resources within and outside government establishment and as demand outstripped supply prices of goods and services soared causing worker and peasant disaffection with the government.
The setting in of the vicious inflation spiral caused government to panic when its core constituencies in the Liberation War Veterans wing of the party mutinied against the party over unfair distribution of wealth among party loyalists when they witnessed their leadership enjoying lavish lifestyles while they languished in abject poverty.
The threat was to cause the Executive to award the former fighters hefty monetary rewards that it had not budgeted for resulting in there being too much money in circulation chasing too few goods that had to be managed through price increases which cause the crush of the country’s currency on Black September in 1998.
The involvement of the State in the DRC conflict did nothing to help the situation. The strain on the fiscus was beyond its capacity and something had to give way and it did when disenchanted workers transformed their Trade Union association into a political movement of sorts that attracted the support of farmers, Academics, Industrialists and Civic groupings in a union aimed at extracting government accountability that Parliament and the Judiciary had abrogated.
Faced with a serious political challenge to its hegemony the government decided to test its strength by embarking on a constitution reform process that was highly contested by the new opposition Party and its grassroots in Civic Society, the trade union Movement and Tertiary Student political activism.
The government lost a crucial referendum to adopt the draft it had painstakingly put together to entrench the Zanu PF hegemony signalling the start of a vicious and lethal political contest for power between Zanu PF and the newly formed MDC party that is raging on within the current coalition government minus the violent levels the contest had sunk to by 30 June 2008.
This is not to say that political violence and abuse has been extinguished in the country. Political violence still rears its ugly head sporadically in various places throughout the country to date. The State controlled public media continues to cynically promote and spoil for violent political thuggerry.
The Judiciary continues pursuing a programme of selective judicial persecutions of MDC loyalists perceived or real it matters not.
The President sets the tone of the abuse by deliberately and blatantly violating sections of the agreement he entered into with the MDCs to legitimise his current Presidency that had been internationally condemned after he refused to concede evident defeat to MDC leader in the March 2008 harmonised elections.
From this background it is tacitly evident that the MDC wants a constitution that will not only tip the electoral process in its favour by wiping out the 10% legislative head start held by Zanu PF but will also specify remedies for electoral and political misconduct in the country.
For the MDC the constitution making process is not as critical as the end result that whatever process is used will produce.
The objective of the MDC is clear that the country is in dire need of a constitution that not only criminalises military intervention in democratic processes but goes further to specify concrete remedies an aggrieved party can resort to in cases of such interventions.
The MDC wants a constitution that will soft land defeated sitting Presidents without recourse to military interventions. One crucial objective that the MDC wants the Constitution reform process to attain is to devolve power from centralised ownership to regional control.
The MDC knows the value of the Constitution as a political power management tool having benefited immensely from amendments it pushed through in Constitutional Amendments No 18 and 19 and would not accept to play second fiddle to anyone in the process underway in the country.
The argument that Constitution making must be left to the sole control and direction of the “people” when that word is used to mean a political or sectarian interest group will not wash with career politicians in government at present or even those aspiring to wrestle power in future.
There is no country on planet earth that is being governed by a constitution drafted and legislated by the Civil Society. Zimbabwe will not be an exception to that.
Dr Madhuku’s demands are legitimate to the extent that he advocates for involvement of all the willing and interested people-used here to mean qualified citizens of the country without reference to their professions- in the reform process.
After that legitimate call anything he says or demands will persuade him and his organisation and its associates to participate must be put in appropriate political perspective.
As an interested citizen Madhuku holds no special brief to choose who must preside over the process. Politicians elected to the Legislature carry more meaningful mandates to spearhead legislative reforms than the unelected NCA organisation and or its associates whose membership is indeterminate and political interest obscure.
Indeed the politicians will manipulate the process as they do anything that impinges on their motive to exercise absolute power and that must be guarded against but not in the manner that Dr Madhuku suggests that they be made subordinate to an appointed authority whose loyalties will be to the one who appointed him and thus has the capacity to disappoint.
There is more danger in such a person being manipulated by the politicians that are close to his principal than there is of a co-chaired parliamentary select committee whose loyalty and accountability is to the electorate than the executive.
Put simply the people elected the Parliamentarians to watch over executive excesses fully aware that whoever they sent to parliament will be subject to political direction by his party unless he stood on an independent ticket.
Because of that people cannot be represented in a political process as critical as constitution making by a Civic Group ahead of the politicians they entrusted the role of monitoring the Executive.
The people will greatly appreciate independent monitoring of the process spearheaded by parliament if such monitoring is not in any way prohibited and in this instance is being actively sought after and accommodated.
That is the challenge that the NCA and Dr Madhuku should seriously consider taking on in the current process if they seriously think they can make a difference to the outputs of the process.
The compelling political drivers behind the current process are far too engrossing for the NCA and its allies to think they can repeat the 2000 referendum, feat after boycotting the process.
The people want a Constitution that will protect them from violent political abuse and repression by a seemingly lifetime Presidency and nothing will dissuade them from voting for a constitution that limits presidential terms and devolves power to regional management.
The national mood at present is that any instrument that empowers them to confront Presidential power excesses is an important step towards achievement of total democratisation of the political management of the country and the NCA will not be allowed to derail the process by falsely claiming to be acting for people it neither has nor will find.
It matters not that the new constitution being merely a document on paper will not withstand a military onslaught because the Zimbabweans know that without the documented evidence of their rights they neither have the capacity nor the legitimacy to stand up against Executive excesses as has been evident in their history with Zanu PF governance.
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