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.