Constitution-making process comes under fire

Under the Global Political Agreement (GPA) signed between ZANU-PF and the two political formations of the Movement for Democratic Change (MDC), a Select Committee of Parliament must be set up by Monday, two months after the formation of the new government to steer the constitution-making process.
The Committee on Standing Rules and Orders appoints Select Committee members.
Unconfirmed reports this week indicated that the three political parties had agreed that the Constitutional Select Committee should consist of 25 members of the House of Assembly, co-chaired by a member from each of the two main political parties — ZANU-PF and MDC-T.
A proposal that the chairperson should be a retired judge has reportedly been shot down for “being outside and against” Standing Orders and Rules.
Under the GPA, the Select Committee must set up sub-committees to assist it.
Parliamentarians and representatives from the civic society will chair these sub-committees to make the constitutional-making process an inclusive one.
But debate is ensuing on whether the proposed constitutional-making process is people-driven or it will just borrow most of its content from the Kariba Draft constitution drawn up by ZANU-PF and the two MDC factions.
Eric Matinenga, the Minister of Constitutional and Parliamentary Affairs maintains that the process would be people-driven.
“It is wrong for people to assume that we will impose the Kariba draft on the people,” Matinenga told The Financial Gazette this week.
“The constitutional making process would be people-driven. We will be soliciting for people’s views on the new constitution not imposing a constitution on the people,” he said.
But the civic society is not convinced.
Civil society organisations, among them the National Constitutional Assembly, have been adamant that the proposed constitutional making process would be fundamentally flawed if it is not people driven.
Phillip Pasirayi, the coordinator of the Centre for Community Development in Zimbabwe, said there should be no compromise on a people-driven constitution.
“There is no one-size-fits-all of constitutional engineering but the process as proposed by the political parties is not people-driven but political-elite driven,” he said.
“What we have agreed as civic society is that the constitution must be written by the people and by this we mean political parties, labour, women, youths, academia, farmers, businesspersons, the disabled, churches and others. The process of constitution making must be one that gives an acceptable outcome; one, which the people, including the grassroots can identify with,” said Pisirayi.
Pasirayi said the Kariba draft was a political parties document.
“People must not even debate it, not only because three lawyers in a boat in Kariba wrote it, but because its not people oriented. So it is a boat-driven and not a people-driven constitution.”
Takura Zhangazha, the national director of the Media Institute of Southern Africa Zimbabwe Chapter said the process, as proposed by parliament, and as prescribed by the GPA, could not be defined as people-driven.
“It has essentially been structured in such a manner that it is in the direct control of the legislature and the political parties, who may, if they have the political will, engage civic society honestly. The holding of stakeholders’ conferences, or co-option of civic society organisations is clearly the prerogative of the political parties in the sense that they determine the timeline, they will also determine who and what they consider a stakeholder, and most significantly, whether they will have the final say in relation to the contents of the new constitution,” said Zhangazha.
“By and large, this process, is a political party driven process, it will be heavily dependent, as with everything else in the inclusive government, on how President (Robert) Mugabe, Prime Minister (Morgan) Tsvangirai and Deputy Prime Minister (Arthur) Mutambara discuss and agree on these issues. This essentially means it will be controlled continually by the principals and therefore cannot be people driven,” he said.
Fambai Ngirande, the spokesperson for the National Association of Non Governmental Organisations (NANGO), said there were doubts the proposed process would embrace the ordinary people.
“The exclusive nature of the processes leading up to the GPA as it was crafted with little accountability and feedback to the people of Zimbabwe in Johannesburg far from the people’s lived realities cast doubts about the overall commitment of our political leaders to people driven processes,” said Ngirande.
“Already both parties have achieved consensus on their own around the Kariba Draft constitution and it would appear that there is strong chance that the people will be relegated to the role of rubber-stamping the draft that’s most amenable to our political elites in the GNU (government of national unity). There is an oversupply of reason to question the GNU’s commitment to people driven processes,” he said.
In demanding a people driven process, Ngirande said, Zimbabwe’s civic society, was fully aware of the fact that the recent political and economic upheavals had significantly decimated people’s capacities to participate in and or contribute to civic processes.
“Structural conditions in Zimbabwe militate against the possibility of a people-driven Constitutional process. The true test of the GNU’s commitment to a people driven process, rests in their ability to urgently remove the manifold structural impediments to democratic participation and the enjoyment of human rights in Zimbabwe,” he said.
The NANGO spokesperson said legislation, such as the Access to Information and Protection of Privacy Act, the Public Order and Security Act, among others still inhibited people’s abilities to enjoy the fundamental freedoms of assembly, association and speech without which a people driven process could not be sustained.
He said the civil society was still encumbered by high levels of mistrust especially from partisan public officials and the numerous bureaucratic and hindrances to carrying out functions such as mass mobilisation and civic education.
“Millions of Zimbabwean economic refugees remain disenfranchised and will most likely not be able to participate. Nonetheless, NANGO and its entire constituency remains defiant in upholding the call for a people driven Constitutional reform process, we realise that it is not a given but it is something that we have to fight for and fight for the rights of Zimbabweans to decide their destiny, we will,” Ngirande added.