THE constitution-making season appears to have begun, albeit with squabbles over the notorious Kariba Draft which was concocted by a collection of politicians sometime in 2007.
When the National Constitutional Assembly (NCA) chairman Lovemore Madhuku protested against entrusting politicians with the constitution-making process, vamwe vakati anorwara nepfungwa (some said Madhuku is mad).
Hopefully, now they respect Madhuku’s right to be “mad” especially if in that “madness” he points to some uncomfortable truths.
As Zimbabwe embarks on this admittedly important process, another cautionary note is pertinent.
Limitations of the Constitution
As a people, we need to look beyond the constitution as the panacea to all our troubles. I notice, with particular concern, what appears to be a pre-occupation with the idea that the crafting of a new constitution will pave the way for a free and fair election, something that has eluded us for a long time.
Underlying this notion is the belief often couched in mathematical formulae that a new constitution will lay conditions for a free and fair election and consequently will help resolve many of our governance problems.
That, to my mind, is naïve and too simplistic a view of politics in Zimbabwe. It shows that we have not yet properly understood the core elements of our problems, which in reality lie beyond the text of the constitution.
Regular readers have heard this before in these pages but it is important that the message be communicated again. It would be a great mistake if we thought that the constitutional issue represents the Alpha and Omega of our national problems and consequently the solutions.
There is something more critical; something that has little to do with the constitution but more to do with the progression and evolution of society as a civilised entity.
The trouble, as I see it, is that a lot that has gone wrong in Zimbabwean politics cannot simply be placed at the door of a defective constitution. These problems have happened not because of but in spite of the constitution. Let us consider a few examples:
First, when the military generals declared a few years ago that they would neither support nor salute anyone who did not participate in the liberation struggle – participation here being narrowly defined because in reality everyone played a role in that struggle – they were not acting in terms of the constitution.
In fact, they were defying the constitution which requires them to defend it as the supreme law of the land. So, no, you cannot lay blame on the constitution for the conduct of the men in uniform. Their behaviour cannot simply be explained by the argument that there is a defective constitution.
Second, when law enforcement authorities abduct or become violent towards ordinary citizens, it is not because the constitution prohibits people from demonstrating or that the constitution commands the authorities to be violent to ordinary citizens. They do so in spite of the provisions of the constitution which safeguard citizens’ liberty and protection of the law.
Citizens are entitled to seek recourse in the courts of law. The courts of law may pronounce judgment in favour of citizens but that is only half the story. That order will have to be enforced against the state. However, there is no guarantee that the state will obey the order.
As we have seen in Zimbabwe, ministers can choose to ignore the judgment and absolutely nothing will happen to them. We saw this very recently when the High Court authorised journalists to cover the COMESA Summit without the need for registration with the authorities. However, the authorities chose to ignore the judgment. Can you really blame the constitution for that behaviour? I do not think so.
The constitution does not make people behave badly. And the constitution alone will not stop them from behaving badly.
There is some other cause for their behaviour, beyond the constitutional rules just as there is probably another way of minimising that behaviour that cannot simply be mandated by the law.
This clearly shows us that there is something fundamentally wrong in the moral fabric of our society or at least, at the leadership level. It is this that needs to be attended to and I confess I do not know how best to do it. But I am not persuaded that the law alone provides answers to these hard questions.
And I do fear that in trying to deal with our national problems, we often place faith in the law, perhaps too much faith, when in fact the law is one of many facets of society’s architecture that guides our behaviour and attitudes.
We must search for those other facets; for those other elements that can more effectively compliment the law in achieving its purpose. I do not know what these elements are but I like to think there are others better schooled and well-positioned to at least think about these things.
Constitutionalism
There is something more, beyond having a constitution, that is vital in controlling the behaviour of leaders and their use of political power. It is often referred to as constitutionalism.
The constitution is the national covenant on the way a country is governed but constitutionalism goes further, embracing the culture by which the constitutional rules are created and given full effect. In other words, there is a distinction between on the one hand having a good constitution and on the other hand, the concept of constitutionalism – the culture of obeying the demands of that constitution.
It’s a cultural issue; one that I think grows with the progressive evolution of society. It means that in exercising its powers, the state should not only be limited by law but it must have regard to the generally accepted principles and values of society. Things should be done not just because the law/constitution demands them but because the principles and values of society compel actors to obey them. We can use an example here:
Few people may be aware but the British Constitution is largely unwritten. There is no single document which can be said to be the British Constitution. In fact, some governance issues are addressed by way of what are called “constitutional conventions”, which are not necessarily enforceable at law.
The question one must ask is: what is it that makes the relevant actors obey these conventions if in fact they do not necessarily impose legal obligations?
We can observe that there is something more, beyond the force of law, which compels them to obey these long-held conventions. It is this, among other things, that we must try to grasp: that some things do not require the force of law; that there are higher values and traditions that are not necessarily couched in legal terms, which our leaders must obey because they are right and accepted by society.
The Queen will always give assent to Bills passed by Parliament because this is an expression of the popularly elected representatives. In the same way, the President should not use his power to override laws passed by the Zimbabwe parliament. The fact that he does so might make it legal and constitutional but it does not make it right in a democratic context where the majority will must be respected.
As I have said, I do not know how the kind of behaviour that has brought us down can be minimised unless those charged with powers and responsibilities under the constitution actually respect and follow its prescriptions and limitations.
Defining Principles and Values
I can only suggest that we must, as we craft a new constitution, define those general principles and values by which we expect the nation to be governed. These fundamental principles and values include fairness, justice, equality, separation of powers, due process of law, supremacy of the constitution, and many more.
It is in accordance with these values, not just the words of a constitution, that the state must be governed. We should, even in a deadlock over the words contained in a constitution, be able to appeal to those higher values and principles for guidance.
Let us be reminded that not even the most beautiful words of a constitution will stop election violence. They will not compel the police to act fairly and impartially. They will not make the electoral commission fairer and more impartial. They will not stop people from being abducted. They will not cause ministers to evolve to a stage where they actually obey the orders of the courts without cherry-picking them.
I know that this sounds disappointing and perhaps causes great despair, but let’s face the reality: bad things have happened not because of the constitution; that they have happened is, and I say it with caution, a sad indictment on the moral fabric of our civilisation.
Sometimes we place too much reliance on the constitution but not even the constitution can save us from the bad things that have happened. There is something more beyond the law that determines our leaders’ behaviour. The trouble is I don’t quite know what it is. Nor do I know how to solve it. But I am still searching.
Alex, I completely agree with you that there is definately something more that is required than just a perfect constitution. I do not know the answer yet and am equally searching, but there I have this article from one of my favourite writers – it may have something close to what we are looking for: http://www.capmag.com/article.asp?ID=5509
Check it out.
Thanks, Phillip Kamutenga for that link. Magaisa’s question is well answered in that article. And I will put it plainly that the problem is the values of Ubuntu/Unhu are no longer strictly adhered to by our leadership and the ordinary persons.
An ideal constitution would:
- ensure the separation of the powers of state
It would define the rights and obligations of local government, the civil service and parastatals, to protect them from political interference. There are few things more important than a professional and independent civil service. Many things become possible, when the civil service is staffed with individuals who are not appointed by politicians, and who carry out their work in a professional manner. I think it is the most siginificant thing anyone can do at this time.
- Give proper rights to local government
When local government tasks are not carried out at a local government level, they often don’t get done, and when they are, waste of resources is almost ensured. Local government should be responsible for healthcare, education, policing, publica amenities and administrative issues. To do this, they should be empowered to do so legally through the constitution, and receive a share of national revenues (at least 50%).
Magaisa,your headline is very misleading.Ofcourse the constitution can save us.!!You don’t have to search far.All that is require is very simple;
a.We have to have a good constitution .That is the starting point.
b.We then have to enact laws in parliament,with our constitution as the reference point.
3.We have to respect the laws,apply the letter of the law to all and sundry, and interpret those laws without fear or favour.
Thats it.
Sadly,the third and last point seems to be the missing dimension in our case.
Alex, what you are searching for is called ” resepect of each other” We must all believe that we are all equal infront of the laws of the country regardless of status and that all residents have equal oppotunity to resources depending on how much effort they put in in aquiring these resorces.
These two fundermental principles makes us fundermentally different from those nations that are prospiring.
FOOD FOR THOUGHT – Despite apparent superficial similarities between animal and human societies, the difference between them is profound: “Human social life is culturally, not biologically, determined.” The triumph of intellect over instinct — of altruism over individualism — was demonstrably basic to our evolution.
Alex
Yes the constitution is not the alpha and omega, but the alpha and omega can not be realised without the constitution.
The constitution is the first step or to borrow from you, it is the alpha.
It is by the constitution that we must separate our nations, the Mhunumutapa kingdom and the Matebele kingdom.
These 2 people have always existed separately, side by side. Yes they initially fought, but they got over the fighting and co-existed side by side until a white man came and amalgamated and conquered. We were never divided and ruled but were enjoined together and ruled.
We have different cultures and we just dont think alike. There is some good in either side but it does not mean we are one nation .
Each needs the other but only as neighbouring countries. Your strength is our strength. OUR VALUES ARE DIFFERENT and what constitution can come out of such. LET US SEPARATE AND THEN YOU DO YOUR OWN CONSTITUTION AND WE DO OURS.
This you may like or not but it is the plain truth. It is a journey that must be journeyed and not shied away from. Let us be bold and not fear.
The highest ranking Matebele man in your adminstration, if they were to tell the truth, they would tell you they dont understand an inch of your way of life. They are just with you for their tummy.
MTHWENTWEHLABA1
Your comment says “It is by the constitution that we must separate our nations, the Mhunumutapa kingdom and the Matebele kingdom.” but you have forgotten that the Ndebele became a visible tribe after 1823 CE when Mzilikazi broke off the Zulu and crossed the Limpopo into the Great Zimbabwe around 1937 CE while the Great Zimbabwe or the Mwene Mutapa Empire has been in existence since 1000 BCE and had boundaries which stretched nearly 4000 km across the face of Africa.
If you did not know about this you will know soon. Africans are one people called Bantu of largely dark skinned tribes of one race who speak related diatects (Bantu), who keep one culture (unhu/ubuntu), have one history and origins and one spirituality – African traditions – If any one of you calls himself English (Anglican) or Dutch (Nether children) or Catholic (Italian), its a result of religious propaganda and a misunderstanding of the totality of African culture – Unhu/Ubuntu. We are brothers, the borders that you are crying for can be fatal as we begin to fight over territory, afterall they were imposed on us by the north at a conference in Berlin. You will acknowledge that as a Ndebele you have less privileges in the rich South Africa of your fathers that the Nether children who came all the way 13,000 km from Holland – its because of these borders.
Lets unite as African children, lets not worry about creating new borders, infact we need to undo the borders imposed on us by the “whiteman” because we are a family.
In Europe those who put borders between us have done away with the borders to form the Euro for economic and political gains, why not us? Why should we put some barriers physical and non physical between our brotherwood?
Mukoma you are searching for what i think can only be found in Declaration of Independence which is the moral fabric which direct how the USA as a nation works. Zimbabwe is know for what?????. There is need for a vision which is greater than three generations which will propel the next five generations. Its very important we look at the USA 400 years ago when a couple of men decided that the USA will be a land were dreams come true and indeed mine has in this land.
MTHWENTWEHLABA1
Point of Correction: The Ndebele crossed the Limpopo around 1837 CE and not 1937 CE.
The colonial settlers found us living together. Each of the kingdoms had its confined space. They combined us together and conquered us. Let us restore ou respective positions. It is simple. But you may wander all over and over all issues unnecessary as it is, this pain and suffering will not leave zimbabwe. Ndebele people are not a mistake, God created them and placed them on their portion. Why should you Shona people have an upper hand if we are one people. Guys we need to face the truth, we dont want to live together because we are not one nation.
Anonymous
Are we understanding each other when I say that as Africans we one people called Bantu nebuntu wetu? If you do not belong to the Bantu people then tell us your identity then we (you and all Zimbabweans) can work out something for you because as long as you are muntu like me and Baba Dabengwa, Baba Sansole, Baba Chatikobo and Baba Sithole and Baba Machele then we are one people and our country, the Great Zimbabwe shall always be one. And what are you going to do to us who are both Shona and Ndebele, are you going to create another republic for us perhaps MatebeleShona Republic? And to those Ndebeles in South Africa, they are probably going to call out for their republic if your republic succeeds. You see it becomes quite complex. And as I have always said when we deal with this matter, let us not restrict our emotions on Gukurahundi basi, lets go back to the beginning of Bulawayo – the place of killing and the Ndebele raids that resulted in us being both Ndebele and Shona. If I were you, I would rest this matter out of wisdom.
And remember there still remains one fundamental about the Ndebele people that I would not discuss in public for the reason of my strong belief in the United Africa.
First of all it is important for us to understand what is happening in Zimbabwe in order to see the importance of the constitution at this stage. The process happening in Zimbabwe which can be seen in the form of the GNU is called Democratic Institutional Engineering. Democratic Institutional engineering has been used in post communist states, dictatorships and authoritarian states in order to try and achieve democracy. In short we say Democratic Institutional Engineering can be achieved through;
• constitutional engineering
• electoral laws
• Semi presidential system and decision making by plebiscite
Once we understand what this process is trying to achieve, then it will become perfectly clear to us that you cannot trivialize the importance of the constitution in this process. The constitution is the document that gives rights to citizens in a democracy or takes away the rights from citizens in undemocratic states. This is a stage that is fundamental in this process because it will define whether we are a
• Managed democracy
• Facade democracy
• Representative democracy
• Participatory democracy.
The Kariba Draft is drawback on this process as it takes away all the power and gives it to the executive, so adopting the draft is like starting the process with a full stop. It is not true that the constitution will not save us; if so why is the incumbent keen on the draft?
Thank you Mr Gaisa for your brilliant political and constitutional observation in Zimbabwe. I totally disagree with you when you say the constitution can not be a panacea to our political behaviour and system of governance. It is a political rule that a constitution that is drafted outside the bench marks of the political history of the country in question is bound to be in constant conflict with Executive,the Judiciary,and the Legislature.It is termed political and constitutional deliquence when the above arms of government appear to be conflict with the constitution that created them. When a constitution finds itself in that situation, that is conclusive evidence to the fact that the constitution is not only defective, but it also omitted and ignored key and central provisions of strategic importance in its drafting. Take for example, the institution of Service Chiefs in Zimbabwe. Those men and women did not become military and security service men because they wanted to be that by profession. Instead, they are among the first politicians to emerge from our society. So a constitution that does acknowledge their political dimension is bound to be in constant conflict with their institution. Equally, any attempt to restrict them to purely military duties will be anti-history and any society that goes against its own history will end up in a disaster. There is no merit in entertaining a false believe that post independence politicians like Tsvangirai and Biti are better politicians than General Chiwenga simply because he is in active service. If the constitution is drafted along those defective lines it will be reduced to a useless document by political history and events on the ground. The current constitution must be informed and borrow from our political history inorder to have that respect and strength to control our political behaviour and issues of governance.The institution of Service Chiefs must be accommodated in the new constitution not only as a military and security body ,but also its political dimension must be acknowledged in the constitution as custodians of State Authority in Zimbabwe and they must have a say when it comes to transfer and distribution of the same. It is a question of balancing compelling demands of our political history and our political present in a decent and respectful way that is needed in this new constitution and all the political ills will disappear.Thank you.
Magaisa,
I think the answer to your question lies precisely on the anology of the drivers of African behavior. Africans are clearly motivated by generally wrong things- desire to dominate all else, rabid corruption, witchcraft, lack of legacy etc. When one gets into power, he simply institutionalize these behaviours. Africa will be rescued by new leadership ethos and transformed socities.
Fellow Africans dont be offended, lets look into the mirror and bodly resolves, that which inhibits progress, not for us, but for future generations!!!
Dr Magaisa, what is lacking you mentioned it some time back…..it is the “HUMAN FACTOR”!!!!!!!
robertom
“Witcraft” as a driver of behaviour in Africa is not a result of Africa but was created by the north to create a negative Africa that you see today.
African culture has inbuilt checks and balances against witchcraft such as the existence of a clear protocol on witchcraft detection (gata/gumbwa) and eradication (kurasiswa gona reuroyi) as when a case of witchcraft is suspected as well as the cultural guideline – thou shalt not cause the witch to live’ – “bulala muthakhathi”. These checks among other made sure that witchcraft did not proliferate and was well checked. Then came the north with anti witchcraft suppression acts which suppressed or outlawed the African cultural provision against witchcraft, not because the “whiteman” did not know that witchcraft existed but that the agenda as usual was to provide any way that would decimate the African kind this time by allowing the evil few among them to grow and destroy other Africans as they grow. So such comments on witchcraft related matters must be made with that perspective and also for the need to reverse the wrong done in legislation.
Dr Magaisa, this is one of the few articles by mwana wevhu/mtwana kamthwakhazi that resemble deep thinking. It is good to see you and Mutumwa Mawere probing these questions to get Zimbabweans to define for themselves what they want to be and known for (currently we are a scrabbled egg, once revered for our education and now poverty, starvation and a currency worth less than manure). Without digressing, let me say this debate of the constitution and the Zimbabwean identity is one I couldn’t resist as it highly important.
I want to start by saying I may have an answer to your questions, the only thing is the answer might not be easy to understand but I will try my best to be clear.
My background is Zimbabwean of Shona ancestry who grow up among the Korekore people, educated in Bulawayo and worked in Harare, travelling across southern and east Africa (speak multiple languages) before migrating to one of the commonwealth countries, where I currently live. From my experience from childhood to today I think I found an answer to our quagmire and the way forward.
The answer as surprising as it might be is going back to our roots, pre-colonial era. I don’t mean we should take off our clothes and walk neNhembe or bhetshu. What I mean is fuse the culture, the good principles of governance that was working in the Rozvi/Mutapa/Mthwakhazi or Nguni state. True they were bad aspects (Shaka’s conquest ambitions) and we can’t go back in the past but we can take a lot from those states than taking the Roman/Dutch/British/American law and constitutions and try to imitate them, throwing away our ubuntu. I remember as a teenage my peers and I all wanted to imitate American gangsters and all that we see today in the so called “ma-salad”.
In my travels abroad, I saw something striking in Asian countries how they have managed to remain “Asian” in culture/reflected in constitution and model of governance but still progressed as a people and dominate in the world. In Japan, they don’t have to be American or speak English to be good. The Chinese’s model is working for them, the Malaysians, Koreans in short Asian tigers. How did they do it, we don’t have to re-invent the wheel, the Asians went back to the base and built from there and we can do better if were go back to the base of what defines an African person.
Now digging deeper into specifics, for example one thing I wish the new constitution could reflect is how the Shona or Ndebele kingdom was governed. It was governed INCLUSIVELY, there was no opposition and no need for it. I am not talking of returning to a monarchy (making Mugabe king, as that would be worse than what is already terrible). But I am talking of GOVERNMENT OF PROPOTIONAL representation . We can have many political parties but all should be represent in government by their best men and women. Instead of fight outside government for power, every Zimbabwean’s effort should be spent in state building, like it was back then.
The politicians should be answerable to the people the way company management is answerable to shareholders and on election time specific measurable goals are presented to the people by various candidates and those with best plans should win and when their term ends it will be PERFORMANCE APPRAISAL time. Those who did not perform would know their fate, and the president as the CEO of Zimbabwe Inc. will be answerable to the people directly more than anyone else (we won’t have a President and Governor who presided over 231 million percent inflation despites any blame game, the President and team should have found a solution one way or another or next person should have taken over) . In some countries, I know being the President or Prime Minister is not a job anyone want as there is real accountability. If inflation goes beyond 10% the President knows he is history.
If you look at it, this is what it was in Mutapa/Rozvi state at Masvingo eZimbabwe. The chief beared a tough burden. A modern Zimbabwe state can be model along the same lines have the good from the Shona and Ndeble (Bantu culture) and the modern flavour so we can be the best and beat the Japanese and the Americans. I have a conviction that we have a better culture than them and we can do it. This concludes PART ONE of my contribution to the constitution. True we are different just like in one family individuals are different, but we are closer than people think. Just as the Hutu and Tutsi are close in Rwanda so are Shona and Ndebele in Zimbabwe, best way to know this is to go and live in China, France or Mexico belive me you will miss the Shona or Ndebele friends.
Mwana wevhu
I agree with your sentiments on African culture – ubuntu wethu, my difference with you though is in the election. You prefer proportional representation and I do not prefer any election by humankind. Why? The reasons are many
1) To run an election you need an electroral college, vote registration, registration of candidates, printing of ballot paper, administering the voting process, counting the votes and all this is for a huge fee – the electoral budget.
2) The election can be stolen, or the candidates can win by voter intimidation or vote buying and so the candidate or party that comes out of it may not be the best.
What I prefer is the ubuntu electoral system – who ever thinks can rule or is a good leader would sanctify himself (to sanctify oneself is to cleanse oneself in preparation to enter an oracle/shrine – kuMatonjeni). There the priest, svikiro raMusikavanhu kwete n’anga would administer a selection process through a simple test which by design of heaven only one candidate would pass and such a candidate would be wise, humble, generous, loving, a born leader uye anenge ari mhare in case paita vavengi ndiye anotungamira muhondo yacho.
This selection process is so cheap that all money needed is transport to Matonjeni chete and therefore all monies you spend in running the electoral system, how much is it? Give that money to people in Chivi to build a dam and irrigation scheme based on drip inoitwa nevazukuru maJews kuIsrael.
Continue taking all those monies budgeted for elections and giving them to struggling Zimbabwean communities you shall see a change in everyone’s life.
At the moment the current electoral system is benefiting the ballot printers in South Africa or Europe and a few politicians who win or cheat an election.
So African culture is not number 1 or 2 or 3 but nothing compares to it.
Unhu wedu/ubuntu wethu is the Hebrew culture taught by Moses to our forefathers at Mt Sinai 3,500 years back.
Mwana wevhu
Sorry I forgot a point in my previos article, so read my earlier comment below and then conclude by reading this one.
So when you have elected a leader the Matonjeni way, you can advertise for Ministerial positions as national managers, for example Manager Foreign Affairs, Manager Defence, Manager Home Security, Manager Finance, Manager Education and you look for professionals with requisite credentials suitable to be a national manager and these people must have some sense of love for their Great Zimbabwe (patriotism) and you enter into a contract with them and put the deliverables that you mentioned in your article like inflation target for manager Finance, Crime rate target for manager Home security, health for all target for manager Health then you give them budgets to operate on, whoever fails to to perform you will not fire him yourself but the contract will do so. When inflation crosses a set target for example manager finance resigns automatically and you hire another one, that way you will see serious people in governance and not the current crop of prado solicitors in government today.
Somebody tell me what is wrong with the munumutapa reorganising themselves and the Mthwakazi reorganising and we all part ways peacefully. Our forefathers fought, yes, but they got over it and lived side by side peacefully. In recent times you sent the fifth brigade and massacred us and have not even acknowledged to this day, but why cant we still part ways? We have lost confidence in you, we think you are planning for the sixth brigade on us, you have the disposal of the state instruments and you have bred so much corruption in the country, you cant be trusted.
The fact that the constitution has been amended countless number of times tells a story. The sad part is the ammendments have been done by a single “entity” in what they viewed as “best for the nation”. But a group of people sitting in parliament, living in good homes and driving in fancy cars is little representation of what is on the ground. And if you leave home for long enough, you tend to forget the real issues. I come from Plumtree. And during the Constitution amendement era, our MP was a man who had grown up in Plumtree but had established a home in Bulawayo and was living in Harare. Its true the constitution alone cannot make the difference we need but its at least a starting point to get the people’s voice heard.
A good constitution will not make up the shortfall of an incompetent overrated opposition.Even with the best constitution on the land, they will still blunder.Ngavatibvire apa.