ZIMBABWE’S current constitutional reform process, whichever way one would like to view it, is devoid of a necessary national political dignity or seriousness.
This is a necessary point to make at the outset primarily because there have been a number of continual public arguments around the Parliamentary Constitutional Select Committee (COPAC) process as established by Article 6 of the Global Political Agreement (GPA). These arguments have ranged from issues to do with outreach reports, donor funding, the role of political parties and at the time of writing, issues to do with the final content of the draft constitution.
There has also been a number of opinions expressed concerning how the Zimbabwean public must view the entirety of the COPAC process. One of these opinions relates to seeking to give the process “a chance” or alternatively to view it as the “best that could be done” given the circumstances surrounding the GPA.
Such an argument was premised on the assumption that with time and within the now passed initial 18 month time-frame for drafting the new constitution, COPAC would be popularly legitimate and lead to a “people-driven” new constitution.
Time, unfortunately, has not assisted COPAC in relation to its performance or popular legitimacy. From the disrupted initial stakeholders’ conference (whoever one blames) through to the regular violent and politicised outreach meetings and the now contested politicised drafting process, COPAC has been primarily a four party political process.
Even if one were to argue that there has been a bit of pressure from civil society, such a position would be dishonest. Civil society's role has been muted and to the greater extent co-opted by one political party or the other, making the former pragmatically irrelevant or at best window-dressing for COPAC's assumed “consultative” processes.
Given the fact that it is now 72 months after it was formed, and since COPAC is about to come full circle with the publication of its draft, it is necessary to put key developments around the process into clearer perspective.
Naturally, the finalisation and publication of the draft constitution is a development that lawmakers, civil society and the political party leaders will seek to use to vindicate themselves. Instead of combining issues to do with how the process thus far has influenced the content, the focus will shift solely to content.
You don’t have to go far to see the evidence of this. In the past few months, there has been a proliferation of arguments about various “unofficial” drafts and the drafters have found their way into the public domain. This shift from process to content has not been on the basis of popular public participation. Instead, it has been on the basis of contestation about presidential age limits or the continued politicisation of the issue of sexual orientation rights.
An exacerbation of this current state of affairs will be when the full and official COPAC draft constitution is made public. The debate will then involve various legal and civil society experts who will compete to explain the full import of various clauses of the draft in relation to their vested political interests. This may not be a bad thing in and of itself, but the character of the debate will not necessarily change from its highly politicised and “proximity to power” elitist character.
There will be Zanu PF and MDC experts praising or denouncing one clause or the other and various other analysts who intentionally or unintentionally will be seen to be taking sides. Neutrality in this instance will be of limited import due to the partisan and elitist character that has been the Article 6 constitutional reform process.
It therefore becomes necessary to outline the key challenges that all Zimbabweans might consider as the country heads toward a referendum on the draft under these circumstances. The first pre-emptive issue that needs public and private debate is the key challenge of measuring the democratic performance of COPAC and the principal leaders of the inclusive government.
Whereas at the beginning of the process both those who supported or opposed Article 6 of the GPA felt it necessary to give Parliament and government the chance to make this work or not work, it is rather urgent that an assessment be made as to whether what has happened thus far on constitutional reform is reflective of a broad national democratic vision for the country, or whether perhaps it is reflective of partisan political positions that suit solely the pursuit of political power at the expense of the public interest.
Secondly, and in relation to the first issue to be considered, if the political leaders are asking us to accept their flawed constitutional reform process and compromise what is known to be democratic principle, it is necessary for us to ask as to what national end and benefit such a request is being made.
The request for the compromise has and will continue to come in the form of a request by all parties involved directly and indirectly in the COPAC process to vote 'yes' at the referendum. Some of these parties will cite the flawed argument that the 'no' vote in 2000 was a mistake (a point that can only have resonance with people that believe in elitist or qualified franchise politics).
Others from the same camp will argue that a 'yes' vote would guarantee the beginning of the removal of Zanu PF from power or on the opposite end, the removal of the MDCs from proximity to power. Such a point misses the intention of constitutionalism and reform related thereto which is normally about the progressive replacement of an autocratic fundamental legal/political system with a democratic one.
It therefore is not about individuals, let alone particular political parties. It is then necessary that in considering the “necessary compromise” request there be careful public consideration of the full import of a 'yes' vote on our country's political culture. Where caution is thrown to the wind, we may have a 'yes' vote that delivers us back to processes in which our political leaders assume they can create partisan political realities for us without due consideration to our interests or our broader national input.
A third consideration should be that of querying those that would seek to persuade the public to vote 'no' to the draft. The defining nature of this call for a no vote will stem from the National Constitutional Assembly on the basis of process as well as potentially undemocratic clauses within the draft as an inevitable result of the flawed path that has been Article 6 and COPAC.
Other organisations (inclusive of smaller political parties) will join the 'no' chorus on the basis of content alone, particularly on clauses that may relate to executive powers or the role of the military. Such organisations may have initially supported the COPAC processes but will not hesitate to join a campaign to reject the COPAC draft.
In all of this, it will be necessary for citizens to consider the post-referendum mechanisms of re-visiting the “unfinished business” of establishing a democratic constitution for Zimbabwe regardless of the referendum result. And these mechanisms should begin to be part of the discourse sooner rather than later.
Finally, it is important that where we consider the actions, promises as well as the draft of COPAC we must do so holistically. This would entail measuring the democratic perfomance of COPAC from its inception to present day. And as COPAC prepares to publish its official draft constitution, it is the task of every Zimbabwean to not only view the contents of the same, but to also remember how it came to be undemocratically presented before us.