The Constitution and the Constitutional Process in Zimbabwe
Article by Sabelo J. Ndlovu-Gatsheni - Senior Researcher, South African Institute for International Affairs (SAIIA), Johannesburg
Zimbabwe is currently undertaking a constitution making process partly to fulfil provisions of the Global Political Agreement (GPA), partly to afford citizens an opportunity to contribute to the making of a ‘democratic indigenous’ constitution and partly to afford the nation an opportunity to transcend the past of violence, authoritarianism, impunity and arbitrary rule. Since 1980, Zimbabweans have not had an opportunity to actively take part in constitution-making. The constitutional process that ended in the ‘no vote’ in February 2000 was a lost opportunity largely because of the interference of the ruling elites with the views of the people.
Since 2000 civil society organisations particularly the National Constitutional Assembly (NCA) has not rested in putting the issue of the constitution at the centre of any possible transition or change of government in Zimbabwe. To win the hearts and minds of the electorate, political gladiators particularly those hailing from the opposition have not stopped promising Zimbabweans a new constitution for a new Zimbabwe if elected as new government. The former ruling party ZANU-PF seemed to be happy with the current constitution that gave its leader President Robert Mugabe sweeping executive powers. It had to be dragged kicking and screaming to accept the current process of constitution-making. This was clearly demonstrated by some ZANU-PF activists who tried to disrupt the first meetings organised to launch the new constitution-making process in 2009.
Why do Zimbabweans need a new constitution? The decolonisation of Rhodesia took the form of a negotiated settlement held at the Lancaster House in London where a ceasefire constitution was concocted without the participation of the people. ZANU and ZAPU that united under the Patriotic Front (PF) to negotiate for independence were not elected by the people. Their legitimacy was drawing from their active prosecution of the armed liberation struggle. So, between 1980 and 1990, Zimbabwe was governed under a ‘ceasefire constitution’ otherwise known as the Lancaster House constitution. Between 1990 and 2010, Zimbabwe has been governed under what can be correctly termed a ‘ZANU-PF constitution’ a term that was also used by Jonathan Moyo in 2009.
This constitution came into being as a result of a series of partisan-motivated amendments that have reached a total of seventeen or more. These amendments have resulted in conflation of the state with ZANU-PF, reduction of Zimbabwe to a party-state and conversion of the nation into a party-nation. In this scheme of things, President Mugabe and ZANU-PF have been elevated into national symbols. Opposing Mugabe and ZANU-PF is seen as being unpatriotic and being an enemy of Zimbabwe. Membership to ZANU-PF and loyalty to President Mugabe often came with immunity from prosecution or benefiting from presidential pardons whenever convicted for violence and other offences. In short, the need for a new constitution is a desire to replace both the ceasefire constitution and the ZANU-PF constitution that have combined to plunge Zimbabwe into its worst governance crisis at the beginning of 2000.
The key challenge to the drive for a new people-driven constitution is that since 2000, the process has been deeply imbricated into partisan politics pitting the MDC political formations against ZANU-PF. This scenario has complicated the definition of ‘the people’ beyond belonging to ZANU-PF or MDC. In the last ten years, one of the less written about national crises was that of the ‘absence of the people’ beyond those active in MDC or ZANU-PF. By ‘the people,’ I mean a collectivity in pursuit of common political, economic and social goals that cut across gender, class, race, generation and ethnicity. Between 2000 and 2008, the nation was deeply polarised to the extent that the low intensity war pitting supporters of ZANU-PF and MDC was inevitable. There were no ‘Zimbabweans’ to talk about beyond political party identities. The political gladiators capitalised on this absence of the people to totally hijack the constitution-making process reducing it to a political exercise that needed political parties’ consensus rather than people’s participation and referendum.
The result was the Kariba Draft Constitution agreed secretly among three political parties of ZANU-PF, MDC-T and MDC-M. It is this party-concocted document that ZANU-PF has been accused of trying to push forward as the blue-print for a new constitution of Zimbabwe. MDC-T and MDC-M are trying to save face by dissociating themselves from this secretly drafted version of a constitution. NCA and other civil society groups that initiated the crusade for a new constitution prior to 2000 have lost the centre stage in the making of the constitution. Civil society is now participating in the constitutional outreach activities underway in Zimbabwe as invited guests of political gladiators. In a deeply polarised terrain that unfolded between 2000 and 2008, even civil society was bifurcated into ZANU-PF and MDC affiliation, giving way to the supremacy of political parties as the sole representatives of the people.
As the constitutional outreach programme spreads its tentacles into communities to tap into citizens’ views, one is left wondering if finally ‘the people’ have been liberated from the narrow identities of belonging to political parties rather than to the nation of Zimbabwe. This crisis plays into the hands of the political actors in ZANU-PF and MDC who are comfortable with being defined as representing the people. Are there no people outside ZANU-PF and MDC who are loyal Zimbabweans? How can a people defined by political belonging help in crafting a national constitution? In other words, how can ZANU-PF and MDC people come up with a national constitution? How can such a constitution escape the inevitable constraints of partisan opinions? The Kenya example must be avoided where partisan squabbles led to the failure to come up with a people-driven constitution. To transcend this hurdle, Kenyans had to have a select committee of experts standing in for the people to engage in a secondary process of harmonising the divergent views into a draft national constitution that will then be opened to a referendum. Can Zimbabwe escape this route?
There is a danger of the ongoing constitution-making process remaining hostage to the friction between partisan politics of the day and the horizon of a new Zimbabwe. Only a people acting as a national collectivity putting the nation first and political belonging second are able to come up with a new national constitution working closely with their representatives. An aggrieved, injured, unreconciled and unhealed society, can easily misinterpret the constitution-making process for a forum where they have to vent anger and the whole exercise ending up constrained by short-termism.
by Sabelo J. Ndlovu-Gatsheni – Senior Researcher, South African Institute for International Affairs (SAIIA), Johannesburg
A CONSTITUTION SHOULD BE PEOPLE DRIVEN.WHEN AND HOW SHOULD WE DO AWAY WITH THIS CEASEFIRE CONSTITUTION.ONLY TIME WILL TELL.