WHO SHOULD WRITE A CONSTITUTION?

< WHO SHOULD WRITE A CONSTITUTION? By Rawlings Magede A Constitution is in simple terms and its most fundamental level, a society’s decision-making rule book which has some temporal continuity. But how do we decide who writes the book? If an elite group determines the fundamental rights which are an essential component of democracy, they face the charge of being undemocratic. If it’s left to the majority to determine these rights, the majority, might in its own self self-interest exclude a norm, such as that of equality, which by some international standards is regarded as an essential component of democracy. A Constitution provides a society with a vision for the future. It is a guiding document containing principles that limit the state power and protect people’s liberties and rights. It is a supreme law that provides for an open and free society based on government accountability, the rule of law and transparency. A constitution affects all citizens. Government should ensure that the constitution making process is legitimate, credible, lawful and reflective of the will of the people. Citizen participation should ensure that minority voices are heard and addressed during the constitution review process. Without civil society participation, the constitution will never be accepted by its main constituency, the people it purports to serve and protect. A minority opinion should be given as much weight as a majority public opinion by those tasked with overseeing the constitution-making process. Without a participatory people-driven process, constitution making or constitution reform is deemed a failure. Therefore the role of a vibrant and active civil society cannot be overestimated in the process of constitution making. In a country like Zimbabwe where the ruling elite lack political will, where there is limited or no free media, where an open and transparent political governance is non-exist ant, where a constitutional committee undertakes its work with a severely restricted mandate and it carries out its mandate timidly, too afraid to challenge its political masters, it is often only civil society that agitates for a meaningful change and holds government excesses in check. The role of an open and free media is seminal in the educational aspect of the constitution making process. People trained in and knowledgeable about the process and constitutional issues should be deployed throughout the country to conduct information sharing sessions and to solicit submissions from the public. The people who conduct the education and information sharing should be selected for their lack of political bias and credibility in the community and their ability to speak local languages. Their work should be done in an open and transparent manner. The quality of democracy can be affected by the substance of its constitution. The process of constitution making, however essential must be analyzed in the context of the issues regarding the context or substance. A constitution cannot be expected to act as a panacea for all political problems. Many constitutions in the world were negotiated by parties locked in a sort of entrenched political stalemate. An example is Kenya where since the formation of a unity government brokered by former U.N Secretary General Mr. Kofi Annan, President Kibaki has been making unilateral appointments without consulting Prime Minister Odinga.They have also been also been singing from different hymn books on how the constitution should be written. The Kenyan example is very similar to our own problems at home .Even if a constitution is written legitimately; there is a possibility of abuse of power by any incumbent of power. However what is important is constant constitution reform from time to time if the morass that surrounds democracy is to be cleared out. The current constitution process underway is a caveat of what is likely to erupt in the near future. It is common knowledge that the Parliamentary led process does not reflect the will of the people. Parliament has not been effective in maintaining any independence from the executive and if anything, the executive has had its way in terms of law making to the extent that the separation of powers doctrine has not been operative. The constitution making process now hangs in limbo.ZANU-PF cannot endure the thought of loosing elections under a new constitution while the MDC has not fully nursed the wounds of political violence unleashed against its supporters in 2008.The lack of funding that has crippled the process really force one to question whether the Inclusive government ever prioritized the constitution making process. Also of interest is Paul Mangwana’s remark who is part of the Parliamentary Committee. He even reiterated that people should not continue reminding him that by speeding the constitution process, he was writing his own removal and that the chances of him voting for a new constitution would be diminished. An onerous task lies ahead of us. The constitution is being written when the country is facing a political crisis and where it has to address certain social economic problems. There may be a temptation to address these particular issues speedily and the solutions offered may not be appropriate in the long term. It is impossible to determine which factors will prevail in the future and this is important that drafters of the constitution allow sufficient flexibility to meet unpredictable and unforeseen challenges. Although the inclusive government has continued the constitution process which various schools of thought have questioned, one thing will always hover on the horizon of disappointment for the inclusive government. The process is not people- driven and therefore illegitimate.

SADC SAILING UNDER FALSE COLOURS

One of the most controversial questions being asked by many people today is can SADC find a lasting solution to the disagreements within the Inclusive government? Many stories especially on the role of SADC in Zimbabwe have been written and they will continue to be written, but what many people still question is when the “African solutions to African problems” are coming. The fulsome conclusion that SADC leaders are pressuring the three political parties in the inclusive government is very myopic and deceiving. The charade stance by SADC to make the world believe that it is doing everything in its power to bring to an end the disagreement or outstanding issues in the Zimbabwean scenario is very misleading. Since the inclusive government came into effect, several summits on Zimbabwe have been called and this has not brought any change whatsoever.SADC has continued to digress from its promises that it made to the world. Towards the end of 2010, they called a summit in Maputo to try and make the MDC re-engage with ZANU PF and more interestingly they gave the inclusive government a deadline to implement what the MDC termed “outstanding issues”. The deadline elapsed with no outstanding issue having been dealt with within the stipulated timeframe and SADC never took any punitive action against the party that was in violation. Such a development has caused many people to question the role of SADC in resolving conflict. Of course there might be a grain of truth in the assertion that SADC has over the years managed to bring a little bit of sanity in regional politics but one truth that we can not deviate from is that when it comes to serious matters especially that have to do with conflict, SADC has proved that it incapable of bringing lasting solutions. For example we can look at war torn and poverty stricken nations like Somalia, Nigeria, Sudan, and Ivory Coast where thousands of people have been displaced due to political upheaval while SADC has only gone to the extent of taking a critical stance but failing to bring a solution. There is stark misconception especially among elements within ZANU PF that SADC must find an African solution to the Zimbabwean crisis is simply a move by a bunch of inept leaders who have benefitted greatly in 1997 when their leader, Robert Mugabe was the chairman of the SADC organ on security and defence. Being the chairman of SADC, Mugabe deployed Zimbabwean troops and led Angola and Namibian troops in a military intervention in the Democratic Republic of Congo. Being the Chairman at the time it is the same SADC,a bit reformed though, that Mugabe is dealing with today. He knows how to play his “game” well and he can delay all he wants because she knows the very weaknesses of SADC. All the stories in the media about the about the role of SADC in the Zimbabwean situation have ceased to have meaning. All these stories are compact, apocryphal, told in rapid succession and most people now are tired of this same rhetoric.SADC objectives clearly summarized, include evolving common political values, systems and institutions and promoting peace and security. One is forced to ask what or how many countries have had peace restored to them under the close monitoring of SADC. SADC is more concerned about peace rather than justice. Peace means that as long as there are no people in the streets demonstrating about any social injustice, then to SADC there is no need for intervention. In the case of the current environment where everyone is busy with trying to survive, then to SADC its main objective of fostering peace is being achieved. As far as the administration of law is concerned, such a mandate is too much for SADC. In countries such as Zimbabwe and Botswana strengthening African Institutions and pressurizing them to uphold their protocols on human rights, elections and good governance is the best path to democracy. A lasting solution to the current political upheaval in the country in Zimbabwe or elsewhere on the continent is strengthening the ballot and amplifying regional and continental peacemaking through the African Union and SADC. BY Rawlings Magede