Defining mechanisms of constitution-making

This week, I focus on the key question raised at the end of that article: Do people write a constitution through their representatives in Parliament or do they find a mechanism to write their Constitution directly?
The answer to this question is simple. People must find a mechanism to write their Constitution directly.
It is not the role of Parliament to spearhead constitution-making. Parliament is there to enact laws, which are subordinate to the constitution as prescribed by the people.
The same principle applies to any government of the day: Its role is to work within the framework of the constitution as defined by people.
It is contrary to fundamental notions of good governance for the ruling politicians of the day to seek to dominate the process of constitution-making under the guise of being “representatives” of the people.
The expression “people-driven” was coined as the direct opposite of “parliament-driven” or “government-driven”.
What makes a process “people-driven” is the absence of leadership by politicians. The main characteristic of a people-driven process is the absence of domination by the government of the day.
It is, therefore, nonsensical to claim, as has been the case with the current process, that all what Parliament is doing is to “provide leadership” to a people-driven process! It is contradictory to the core because by definition, a people-driven process must not be led by politicians.
This does not mean that the government of the day or the sitting Parliament has no role to play in a people-driven process. Both have a role and that role is to allow the people to drive the process of writing their own constitution.
That role is played by not standing in the way, by providing State resources to the process, by not deploying the police and the army to interfere with the freedom of the people and by encouraging the people to take the lead.
How do people take the lead? In practical terms, when can a process be said to be people-driven?
The hallmark of a people-driven process is its independence from the dominant politicians of the day. This means that the starting point to a people-driven process is that it must be led by an independent body, which is non-partisan in outlook.
By an independent body, it means a body that takes no instructions from the dominant politicians and is open to people from all walks of life. An independent body does not discriminate citizens on any of the objectionable grounds such as political opinions.
It makes citizens feel equal in the constitution-making process. An independent body must not only be independent, but it must also be seen to be independent.
For a body to attain the independence required for a people-driven process, its composition must be broad and all-inclusive. It must draw its membership from all key stakeholders including politicians and civil society.
The status of each stakeholder is equal to that of another. To enhance its independence, it must be chaired by a person who is not active in politics or civil society. A judge or former judge of the superior courts fits this description.
More fundamentally, a people-driven process provides full scope for every person to make contributions without fear or favour. The political environment must be conducive to free participation.
People must decide their own avenues of communicating with the independent body charged with the collection and compilation of their views. The venues for the expression and collection of views must be those inherent in the daily life of the people: The home, the village hall, the town hall, the beerhall, public places, the church, workplace, clubs and so on.
There must be no preferred format or venue. The independent body char-ged with the function of collecting the views of the people must go to where people are and never the other way round. The process must provide full scope for debate of contentious issues.
Debates must take place in the absence of any State official and where consensus is reach-ed in key issues, groups or communities must be facilitated to transmit their positions to the independent body.
The time lines for a people-driven process are determined by the events on the ground and not a timetable plucked from the air.
While mindful of the need to complete the process within a realistic timeframe, a people-driven process is only completed when there has been full participation by all interested citizens. 
A people-driven process has five mandatory stages.  The first stage is the extensive collection of views of the people by the independent body leading the process.
The second is the compilation of these views into a preliminary Draft Consti-tution. This is followed by a third stage where the preliminary Draft Const-itution is published, extensively distributed and debated. 
At this stage, the independent body collects views and comments on the preliminary Draft Constitution. 
Public meetings are organised to debate the preliminary Draft Constitution. Interest groups and civil society use this stage to propose specific formulations of constitutional provisions in line with their understanding of what the people said. 
At the fourth stage, the independent body takes into account the inputs at the third stage and produce a Final Draft Constitution. The fifth stage is a referendum conducted in a free and fair manner.
The process currently underway in our country, which is now known as the “Article Six Process” or the “GPA Process (Global political Agreement)” is neither people-driven nor legitimate. It fails every test under the principles we have just outlined.  It is the worst ever attempt at writing a constitution for any country.  It originates from a group of politicians who believe that all what matters is the level of their popularity and not core values which bind us together.
The first test it fails is that of an independent, non-partisan body to lead the process. The current process is led by a Select Committee of Parlia-ment. Only the three political parties represented in Parlia-ment are members of the Select Committee. 
None of other political parties in the country are involved.  It is clear that with such a composition, the intention is for the Select Comm-ittee to receive instructions from the three political parties who selected them. 
Members of the Select Committee are hired and fired by the political parties.  There is no security of tenure: a member of the Select Comm-ittee may be fired at anytime and replaced by another choice of the political party that fired him/her. The Select Committee is co-chaired by members from the two main political parties, signaling a frame of mind where the business of the Select Committee is dominated by political party considerations.
In 1999, President Mugabe and ZANU-PF capitulated to the view that the writing of a new Constitution could not be left to members of the sitting Parliament. Therefore a 400 member Commission was established composed of 150 members of Parliament and 250 individuals. It was chaired by a judge of the High Court.
– To be continued next week.
– Dr Lovemore Madhuku is the chairman of the National Constitutional Assembly.