| The best Zimbabwe news site on the world wide web |  |
| NEWS |
| FORUMS |
| NEWS ANALYSIS |
| READERS' FORUM |
Perfecting or messing up the constitution?
The following are talking points on the proposed 18th constitutional amendment by Professor Jonathan Moyo MP at a Mass Public Opinion Institute Public Seminar in Harare on Thursday, May 31, 2007
By Prof Jonathan Moyo MP
1. The question posed for this seminar is best answered with reference to a critical assessment of the Constitution of Zimbabwe as it was first drafted and adopted at Lancaster in 1979 and as it has been amended 17 times since then.
2. There has been
a tendency, and a rather unfortunate one, to treat the mere fact that
our Constitution has been amended 17 times in 27 years as a bad thing.
I say this is unfortunate because a substantive review of these amendments
would show that the majority of them were necessary and therefore unavoidable.
The offensive ones do not number more than three, and if one wants to
stretch the argument, they are certainly not more than five.
3. For the sake of a perspective, it should be remembered that the celebrated
US Constitution went through a series of amendments in the early years
of the founding of the American republic. For example, the first 10
amendments were literally made in one swoop.
4. Those who tend to contrast the fact that the US constitution has been amended only some 27 times since 1776 while ours has been amended some 17 times since 1980 miss the point. It might very well be that after two or more centuries, ours will have less than 27 amendments but the jury is still out on that and it will take centuries to report back!
5. Otherwise, I
think it is fair to say that the conventional wisdom or the generally
agreed position among Zimbabweans about both the 1979 Lancaster draft
and the sum and substance of the 17 amendments of that draft, is that
they are seriously flawed, and they have been routinely described as
imperfect.
6. That is why, despite President Mugabe’s occasional posturing
to the contrary, there is agreement across the political divide that
Zimbabwe needs a new constitution. Indeed, there is even a broad based
consensus as to the content of that constitution informed by our troubled
experience as a sovereign republic since 1980. The disagreement is on
issues about the best process we should use to come up with a new constitution
and I believe that even that disagreement is steadily narrowing down
to some notable agreement across the political divide.
7. It would therefore follow that what we have is in fact an imperfect
constitution which started as an imperfect compromise between nationalist
representatives of the liberation movement, who were then styled as
the Patriotic Front, and colonial interests represented by the unrepentant
Ian Smith and his Rhodesian cohorts who included Bishop Abel Muzorewa
and company, assisted by the British government which presided over
the compromise.
8. As such, there can be no question about whether this kind of Constitution
can be perfected or messed up. The fact is that it was messed up by
the 1979 compromise and the subsequent amendments which have left it
as an imperfect document.
9. In that regard, and given the fact that the imperfection of the Constitution
is deeply structural from an organic point of view in terms of how one
part or one section of the Constitution relates to the others individually
and collectively, what can be achieved through the proposed 18th Amendment
of the Constitution is only an imperfection of an imperfect Constitution.
10. While it is tempting to end the discussion here with the conclusion that the proposed 18th Amendment will be messing up the Constitution rather than perfecting it, doing so would of course be irresponsible given that we do indeed have a Constitution, however imperfect, which is our fundamental law of the land.
11. It is also a
fact that we are going to have the 18th Amendment of the Constitution
before the 2008 general election, actually before the end of the year.
12. Another fact we should acknowledge, even if it may not be palatable
to some in civil society, is that we will not, and I even think we cannot
have, a new constitution before the 2008 general election.
13. While it is true that progressive forces would like to see what
they call a new people driven and thus home grown democratic constitution
now, the fact is that Zanu PF is not interested in that because it understands
only too well, especially following the Referendum experience in February
2000 during which the Draft Constitution was rejected by the electorate,
that a ruling party that embarks on major constitutional reforms on
the eve of a general election risks losing that election.
14. I have come to appreciate that reformers who want a new democratic
constitution must be prepared to do the necessary political work that
can enable them to implement that constitution only if and when they
are in power through the democratic process. In my view, it is unrealistic
for a political party to expect its political program that may include
a new constitution to be implemented by its rivals. That’s not
how politics play out in the real world. Every political party, together
with its associated organisations, must carry their own cross.
15. Against this background, it seems to me that our attention is best
focused on the fact that while it is now obvious that the 18th Amendment
of the Constitution is coming before the end of this year, and in fact
as soon as possible, what is not obvious and is therefore still up for
grabs is the content of that amendment which remains a pending matter
for debate and even negotiation.
16. It is still possible, although admittedly it will be difficult,
to influence the content of the proposed Amendment 18.
17. We have some idea about the content of the proposed amendment which
includes:
(a) A Human Rights
Commission as a sweetener;
(b) An increase of the size of the legislature from 120 to 210 lower
house constituencies (we don’t know yet whether there will still
be some 30 members appointed by the President);
(c) An increase from 66 to 84 upper house members; and
(d) A provision that the two houses of Parliament should jointly sit to elect a President in the event the incumbent resigns, is impeached, dies or is otherwise incapacitated.
18. It is common cause that these proposals are still under intense debate within Zanu PF where warring factions, supported by their securocrats and bureaucrats, are digging in with their different views and positions. It is not yet clear which faction will win the day.
19. This is a good
thing which can be positively exploited in the interest of getting a
more sensible content of the proposed amendment than the present formulations
that are patently designed to promote and safeguard Robert Mugabe’s
dogged desire to remain in office for life regardless of the consequences
of that desire on the well being of the State and the economy.
20. We also know that, outside Zanu PF and I know even within Zanu PF,
there are growing calls for some constitutional reforms of the electoral
process ahead of the 2008 general election to ensure that its outcome
would not be open to easy or frivolous disputation or even rejection
on grounds of fairness and freeness.
21. The focus of these very serious and legitimate calls includes:
(a) The need for
an Independent Registrar of Voters;
(b) The need for the Delimitation and Electoral Commissions to be directly
accountable to Parliament and for the appointment of their respective
chairpersons and other commissioners to be appointed with the input
and approval of Parliament and for their composition to reflect the
political diversity of our country;
(c) The need for voter education to be undertaken freely and transparently by Zimbabweans as a matter of their natural and constitutional rights and
(d) The need for
unfettered access to the public media by competing political players
not only during the election period in the technical sense, which is
normally a minimum of 21 days or a maximum of 45 days, but well before
that period once it is known, as is the case now, that there is a major
election coming and once campaigning has in fact started as it indeed
has, especially in Zanu PF circles where things are getting very hot.
22. In my view, it would be prudent for progressive forces across the
political divide to do everything they can to get these and other related
reforms of the electoral process put on the agenda as part of the required
content of the proposed 18th Amendment.
23. In fact, it is my considered view that the content of the proposed
18th Amendment of the Constitution— particularly as it relates
to the need to reform the electoral process ahead of the 2008 general
election— should be the most important focus of President Thabo
Mbeki’s Sadc mandated mediation.
24. I therefore believe that the most appropriate and in fact best yardstick
or litmus test of success of the Mbeki mediation should be the content
of Amendment 18. This is what needs to be negotiated in tangible ways
with tangible outcomes.
25. In this regard, the Sadc mediation will be a total flop if Zanu
PF alone is able to author the proposed 18th Amendment by giving it
unilateral content specifically and only designed to keep Mugabe in
office for life.
26. In effect, the
proposed 18th Amendment of the Constitution gives us, all Zimbabweans,
a golden opportunity for compromise and for defining the parameters
of the start of the much needed transition.
27. Because the current political and economic situation in the country
is very much similar to the one at the same time in 1979, and because
then Zanu PF leaders were able to respond to that situation by compromising
with the architects of Rhodesian UDI and colonial masters at Lacanster,
Zimbabweans should have every reason to believe that the same Zanu PF
leaders—especially President Mugabe—should not have any
qualms compromising with fellow Zimbabweans even if he thinks some of
them are puppets. In liberation and nationalist and even revolutionary
terms, a puppet cannot be worse than architects of UDI and colonial
masters.
28. But it’s not only Zanu PF that should rediscover the need
for compromise. Others too in the opposition and civil society would
be better advised about the prudence of compromise in politics, especially
where there is a need to unlock a stubborn logjam.
29. I therefore
think the proposed 18th Amendment of the Constitution is very significant
because of its immense potential as the compromise or transitional amendment
to a new and better constitutional, political and economic dispensation
in Zimbabwe.
30. The alternative is further ruin from the collapsing economy and
public institutions with a greater likelihood of unprecedented bloodletting.
Professor Moyo
is a political scientist and MP for Tsholotsho (Indep)
JOIN THE DEBATE ON THIS
ARTICLE ON THE NEWZIMBABWE.COM FORUMS
newsdesk@newzimbabwe.com
All material copyright newzimbabwe.com
Material may be published or reproduced in any form with appropriate credit to this website