Pachipamwe. Today, I would like to comment on an issue that has been raised by some readers relating to the extent to which politics impacts on constitution-making and if it does, whether that should be allowed to happen. In some ways, the latter part seems pretty simple demanding of no answer other than that constitution-making must be protected from the politics of the day. But on further reflection, it is not that simple.

The questions are pertinent in view of the problems that have afflicted Copac’s Constitutional Outreach process and recent statements attributed to Prime Minister Tsvangirai, to the effect that the constitution will have to be negotiated between the major political players in Zimbabwe’s political establishment. This has caused critics to question whether the much-maligned Kariba Draft is being resurrected to substitute the outcome of Copac’s process.

We must distinguish two things: first, “what is” and second, “what ought to be”. The first question focuses on the realities of constitution making whilst the second addresses the ideals to which the process must conform. Both are important, for the first helps us to identify the challenges involved in constitutional reform whilst the second represents the ideal model to which we must aspire.

Whilst accepting that we must not accept mediocrity it is important to recognise that aspiring for the ideal must not cause us to be blind about the realities of political life. To my mind, you strive for the ideal but it does no harm to bear in mind the realities that shape processes and events. There is always the risk of spending your life in a utopian world that exists in your head whilst all the while the real world passes you by.

It is against this background that we must face and deal with some harsh realities of constitution-making and politics. A constitution seeks, among other things, to regulate the relationship between the governors and the governed. It is essentially about power demarcating as it does the limits of government and protecting the freedoms of the governed. Politics itself is about power, essentially the pursuit or retention of power – in this case, the power to govern.

Political power can be achieved by persuasion, coercion or by a combination of both. The constitution and attendant secondary laws regulate how power is won or lost. A document that regulates political power or its attainment cannot therefore, be divorced from politics, no matter how desirable it might seem to have it otherwise.

So, the answer to the second of our questions is in the affirmative, namely that the constitution does have influence over politics, namely the use and deployment of political power. Politicians with the power to govern are required to adhere to the constitution.

Indeed, their conduct in government is often measured by their levels of compliance with the constitution and affected persons are entitled to challenge the abuse of power in the courts of law. So, yes, the constitution impacts on politics to the extent that it regulates the attainment, distribution and use of political power and behaviour of political actors in a specific polity.

Now, this leads us back to the first question, namely the extent to which politics influences constitution-making. Of course, given the extent to which the constitution impacts on politics, the opposite is equally true – it’s a no-brainer, one might even add. Ordinarily, law-making is a political process – involving hard bargaining and trade-offs between the political actors in a multi-party parliament. Laws are what the politicians want, in accordance with the political philosophy that influences their politics. Laws are politicians’ instruments which are passed off as people laws.

Let’s take this a little further. A constitution represents the supreme law of the land but it’s a law nevertheless. The difference is that whilst ordinary laws are created in the exclusive domain of parliament, the constitution often requires direct approval by the people through a referendum. But note that once passed, the constitution is again in the exclusive domain of parliament and therefore politicians because it can be amended by at least two-thirds majority of parliamentarians.

So, the fact that it is subject to a referendum doesn’t make it any less political. If anything, the fact that it is a conducted in the public domain exposes it to more political forces the referendum is subject to the same influences as in elections for political office. In fact, it could be considered the most political of all laws. The 2000 Constitutional Referendum is a case in point.

I often hear people protesting that they voted “NO” but without actually knowing why they were voting as such other than that the Draft Constitution was spearheaded by Zanu PF. There’s credit in the argument that it was as much an anti-draft constitution vote as it was an expression of political disapproval against the then ruling Zanu PF party and support for those opposing it, namely the MDC, NCA  and other civil society groups. One could even hazard the statement that the Draft was a victim of politics more than its own weaknesses.

The current process is no doubt much influenced by politics and would be so even if it were held outside the parliamentary process. For a start, it comes at a time when there is intense negotiation for political space between the major political players in the polity. The constitution is just another arena in this power-negotiation process alongside the GPA and the coalition government.

On the one hand, Zanu PF is intent upon retaining power whilst on the other hand the MDC-T, MDC-M and others are keen to wrest power from Zanu PF and from each other or in the case of smaller parties, to retain the little space they have or can potentially have. One wants the constitution to ensure legitimate retention of political power whilst the other hopes for a constitution that will pave way for gaining political power.

The result in such processes is a compromise because the view of key political actors is dictated by the desire to either retain or win power. The last time Zimbabwe was in such a situation was in 1979 at the Lancaster House Constitutional Conference where independence was negotiated. The Constitution that was produced then was a shoddy and unsustainable compromise. The nationalists gave in to demands that they were otherwise unhappy with but they realised they needed to win political power. The white minority regime gave in to the independence demands but only because they got specific guarantees for retention of economic power as a trade-off for the loss of political power.

The question is whether there are any trade-offs this time around but the desire for political power seems to be equally matched on both sides of the political chasm. What is going on is what economists refer to as ‘zero-sum game’ meaning a situation where a gain by one side is matched by a loss by another side.  If the MDC-T thinks it can compromise with a view to earning some trade-offs to enable them to win political power, they had better think again. After all, do they not say turkeys don’t vote for Christmas?

But would things have been any different if the constitution-making process were somehow outside Copac and instead, were ‘people-driven’ as some have called for? I doubt it. For the biggest challenge is that this constitution-making process is being held against this background of a power struggle and like in 1979, politics will inevitably win the day.

That’s not to say as ordinary people, we should despair and do nothing. If the political actors are going to make a deal, they had better do it cognisant of the views of the ordinary men and women. May I remind colleagues in the UK that you are most welcome to a constitutional conference hosted by the ZDDI at London Met University on 2nd October 2010 (http://www.zimdiasporainterface.org/). You too, can do something.