While the Government has legitimacy but lacks credibility, the NCA lacks both

• Madhuku, 80 NCA activists arrested

• NCA demo foiled, scores injured

• Jonathan Moyo: the trouble with NCA

WITHOUT the good Professor’s kind authority, New Zimbabwe.com reproduces this article which he wrote in 1999 while responding to his critics over constitutional reforms in the country:

By Prof Jonathan Moyo

IN an instructive book about ideas that have harmed mankind published in 1950 under the title, Unpopular Essays, one of this century’s greatest thinkers, the mathematician Bertrand Russell, makes the telling observation that ideas and principles that do harm are, as a rule, cloaks for evil passions.

The practical meaning of this trenchant observation is well illustrated by the stance taken by some single-minded critics of the proposed constitutional commission who, while making slanderous remarks to smear those who disagree with their illogical and often partisan assertions, are going to all lengths to parade their baneful passions under the guise of principles. Take the example of Professor Masipula Sithole (may his soul rest in peace).

In his Public Eye column published in the Financial Gazette, he sought to defend the indefensible under the pretext of opposing the constitutional commission by asserting that the alleged constitutional impasse between the beleaguered National Constitutional Assembly and the government is very important because it "has brought to the fore the most fundamental aspect of this (constitutional) exercise: that we are looking for a government of laws not of men". The professor is looking for a government, not a constitution!

While Professor Sithole is well within his rights in his political support of the NCA, as that is a matter of his democratic choice in the political process, it is wrong for him as a politician to cloak his vested political interests at the expense of clarifying contentious issues. It is also wrong for him as an academic to spread intellectual ignorance under the guise of peddling constitutional principles.

"If the slogan of a "government of laws and not men" had the kind of meaning that Professor Sithole says it has as a principle, then people would elect laws and not men and women to govern them"

JONATHAN MOYO

Consider some of his assertions. To begin with, it is disingenuous for Professor Sithole to claim that there is an impasse between the Government and the NCA over the constitutional commission. The impasse only exists in the minds of those who are bent on imbuing the NCA with a representational content that it does not have. The NCA is just an interest group. Any government that allows itself to be hamstrung by one interest group in matters of historic importance does not deserve to be called a government, not least because governing requires addressing the interests of all groups, including those that, as part of the silent majority, may not be as vocal as well funded groups such as the NCA.

Still on this issue, it is instructively disappointing that while Professor Sithole is quick to invoke principles, he is politically selective in his choice and application. For example, he astonishingly dismisses as irrelevant the principles of "consent" and "representation" when they are applied to the NCA yet he is only too aware as a political scientist that both principles are fundamental to democracy and that not only governments but also third parties who are not based on these principles are a danger to democracy.

If Professor Sithole wants his supposedly wise counsel to be taken seriously in the current constitutional debate, he should go beyond partisan politics and use his knowledge of and commitment to principles to critically analyse not only Zanu (PF) and the Government but also interest groups like the NCA, opposition parties (including the many he has been in and out of), trade unions, donors, business interests and other key players in society. So far Professor Sithole’s claim to principles leaves the unpalatable impression that his political imagination is that Zimbabwe needs a new constitution simply to contain Zanu (PF) and Cde Mugabe.

This limited imagination explains Professor Sithole’s excited declaration that the fundamental principle to which we should all pay attention in the constitutional debate is that "we need a government of laws not of men". While this declaration might be compelling to the uninitiated in the public gallery because it is full of a pious political sense of sound and fury, the fact is that the assertion signifies nothing of constitutional value and certainly does not help promote a better public understanding of how the constitutional commission should be set up, let alone how it should proceed and why. There are several critical reasons for this.

In the first place, it should be noted that when Professor Sithole says we need a government of laws not of men as a matter of principle, he is confusing a very cheap political slogan with a well established constitutional dictum, first used by proponents of republicanism in their attacks on the excesses of monarchism in the 17th century: that it is better to have the rule of law (meaning constitutions) than the rule of men (meaning monarchs).

Maybe Professor Sithole had this classical dictum in mind when he made his pre-analytical assertion and if so, he needs to understand that the concept of the "rule of law" does not at all mean the same thing as "a government of laws".

There are two distinct but complementary approaches to constitutionalism that underpin the principle of the rule of law. One is that a constitution is necessary in order to limit the government, that is, the actions of the state and its officers.
This approach concentrates on "limiting institutional devices" such as the separation of powers (with an emphasis on an independent parliament and independent judiciary to countervail the powers of the executive).

The other approach holds that a constitution is necessary if there is to be a government of men and women based on popular consent (the will of the people). This approach focuses on institutions (such as independent electoral commissions) and processes of representation.

Even though the intellectual traditions of these approaches have different sources, modern constitutionalism has tended to absorb elements of both leading current trends in favour of "democratic constitutionalism", where the interest is not only in the institutional device for limiting government action but also in the participatory institutions and processes (such as proportional representation or one person one vote) for developing democracy and promoting the political and economic rights of individuals and social groups.

Since an election necessarily leads to a government of men and women, some of whom make laws (parliament), others who implement the laws (the executive) and yet others who interpret the laws (the judiciary), there must be a separation of powers between these branches of government by people. The sum result of this is a constitutional government, which is not the same thing as a government of laws.

Thus the rule of law is a principle of constitutional government, that is, a government of men and women channelled through and limited by a democratic constitution as the fundamental law of the land.

Against this backdrop, it is meaningless dilettantism and therefore grossly misleading to speak of a "government of laws not of men" outside the political process.

If the slogan of a "government of laws and not men" had the kind of meaning that Professor Sithole says it has as a principle, then people would elect laws and not men and women to govern them. Such a scenario would be so ludicrous that it would render politics unnecessary.

The simple fact in this regard is that, in a democracy, people elect governments of men and women, not governments of laws.

A major responsibility of the elected governments is to make laws and that is what governing is all about. Thus, governments of men and women come before the laws. The men and women who are elected into government make the laws and not the other way round. Professor Sithole’s notion of a government of laws and not men, is thus a constitutional oxymoron, not a principle, designed to create public confusion in order to push an agenda that has little to do with the promotion of democratic constitutionalism.

Neither Professor Sithole nor anyone else associated with the NCA has rationally shown that the appointment of the constitutional commission under the Commissions of Inquiry Act violates the principle of the rule of law from a constitutional point of view. Professor Sithole’s argument is political, not constitutional. He says that the constitutional commission should not do its work "in a legal framework which can produce results that could be legally pronounced null and void by a president". This would be a serious matter were it an objective assessment. Alas, it is not.

Even though Professor Sithole denies it, his apparent argument is not based on any constitutional principle other than the NCA’s view that "you cannot trust Mugabe" because of how he has handled the findings of some previous commissions. While this argument has some merit, the problem is that it is presented in a dishonest manner deliberately designed to distort some compelling facts about the constitutional commission.

" Whereas the outcome of constitution making is a legal document or legal tradition, the process of making the constitution is intensely political and not legal "

JONATHAN MOYO

Whereas the outcome of constitution making is a legal document or legal tradition, the process of making the constitution is intensely political and not legal. Given that the appointment of the constitutional commission does not violate any principle of the rule of law, the relevant question that should be critically examined without prejudice is whether it violates internationally acceptable principles of democracy. A fair-minded assessment of this question would suggest that in appointing the commission, the Government has sought to strike a balance between two issues which should be obvious to any objective political analyst.

The first is that the Zanu-PF Government is entitled to its claim to legitimacy because of its electoral mandate. The alternative is an unacceptable political or other type of coup with the consequence of engulfing the country into a dark abyss. It is for this reason that those who have argued that the legal and political framework for coming up with a new Zimbabwean constitution should be somehow similar or comparable to the frameworks used to negotiate the Lancaster constitution or the South African constitution miss an important point about legitimacy: the Muzorewa-Smith regime in Rhodesia and the apartheid regime in South Africa had no legitimacy whatsoever. To compare those regimes with the Government is historically mischievous. Thus, the appointment of a constitutional commission under existing legislation is very significant, as a consensus and institution building mechanism, in so far as it enables the government to stake its legitimacy without creating an unnecessary crisis.
Notwithstanding its legitimacy, the Government has serious credibility problems within the ruling party, in parliament and indeed the country as a whole, Legitimacy and credibility are not the same thing and one should not be confused with the other. While the Government has legitimacy but lacks credibility, the NCA lacks both, not only because it is a 1997 donor creation but also because it is a partisan interest group incapable of representing the will of the people.

If the Government believed that it had credibility, it would not hesitate to use its legitimacy to either keep the present constitution or to write a new one on its own. It is for this reason that the constitution commission has a broad-based composition, including the whole Parliament. More significant from a democratic point of view, the adoption of the new constitution will not be a parliamentary or presidential affair but will be a matter for final adoption by the people themselves in a national referendum. The participation of all members of parliament in the commission will ensure that they do not get an opportunity to play games in parliament after the fact. No commission has ever been subjected to such a process before.

In the face of this reality, it is sheer sophistry for Professor Sithole and his NCA colleagues to argue that there is a need for a legal instrument to ensure that the President will not render the result of constitutional commission null and void. You cannot have a legal instrument that is better than a national referendum. If Professor Sithole and the NCA do not trust Cde Mugabe, they should trust the electorate. If they don’t trust the electorate, they should shut up.

The national referendum on the new constitution will serve the political and legal purposes of ensuring that the people themselves have the last word on the constitution.

It is difficult to see how anybody in his or her right mind can argue that such a political and legal framework is not democratic or violates the rule of law."

Professor Moyo was a lecturer at the University of the Witwatersrand, Johannesburg, at the time of writing this article in 1999. He became Information Minister a year later and left government in 2005. He is now an independent MP for Tsholotsho

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