HomeOpinion & AnalysisConstitution can still pass with ‘NO’ vote

Constitution can still pass with ‘NO’ vote

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A constitutional law expert and author on constitutional issues, Greg Linington (GL), says President Robert Mugabe and Parliament have the power to pass a draft constitution into law even if the people of Zimbabwe rejected the draft in a referendum.
He said the House of Assembly only needed a two-thirds majority vote to pass the draft into law.
Although a draft constitution would be subject to a referendum Linington said that was only of political significance. He said there is no legal requirement for people to approve of the text in the draft.
NewsDay reporter Veneranda Langa (VL) this week interviewed Linington on the ongoing constitution outreach programme. Below are excerpts:
VL: Greg, you are a constitutional expert and you have been observing the constitution-making process from the outset. As an expert in constitution-making processes, and in your
opinion, would you say Zimbabwe is on its way to producing a credible constitution?
GL: At this stage it is very difficult to answer a question like that. A lot depends on whether Copac is serious about listening to views of people and finding out what people want.
Ten years ago a small committee was tasked to put together views of the people to make a new constitution and these people had their own ideas. Most of the issues reflected by the people were pushed aside. So, what should be of concern is that the draft should take into account the views of the people.
VL: In your opinion would you say there was enough civic education to enlighten the people of Zimbabwe on what a constitution is and what issues they should propose in the new constitution?
GL: A lot of people are still unsure of what kind of things should be discussed when making a constitution. A lot of Zimbabweans still need to be educated on what a constitution is.
There is a lot of confusion over the issue. In South Africa, a lot of work was done in terms of educating people on what a constitution is. All this information was given to every household and it was publicised in simple language. Everyone had a copy of the South African Constitution and they knew what their rights were.
That helps to develop a culture of constitutionalism, a culture of legality and a culture of respect for human rights. I want to see us move in that road in Zimbabwe as well.
Special Non-Governmental-Organisations (NGOs) like those protecting the rights of children could also have done the same to ensure that children know the rights that have to be protected in the constitution.
In South Africa a lot of economic rights are now protected by the constitution and it would be good to have such rights protected in Zimbabwe as well.
The problem is that protecting such rights needs a lot of money and as you know our government is bankrupt.
VL: Some groups are already saying that the constitution-making process should not be managed by politicians. What is your view on that issue and do you see Copac succeeding in their campaign for a yes vote during the referendum, especially if we take into cognisance the issue of politicians running the process?
GL: There is a lot of concern if politicians are running the constitution-making process and a lot of politicians have their own pre-suppositions on what they want in the new constitution. Zanu PF in particular, is very adamant about the Kariba Draft, which in many ways is a disappointing document. They want some of the things reproduced word for word from that document and what is the point of reproducing what is already there?
Though government has already said any draft will be subject to a referendum, that is clearly a politically significant act, it is not a legally significant act because there is no legal requirement for people to approve of the text in a draft. Parliament still has the power to craft the draft into a law even if the people reject it in a referendum. Parliament is not bound by the will of the people to reject the draft. If parliament decides that they want to pass the draft, they can do so.
VL: How does parliament pass the draft into law? Is it true that the President can refute the outcome of a referendum?
GL: As long as the House of Assembly passes the law by a two-thirds majority – and that means there would have to be an inter-party consensus in order to secure the passage of the draft into law, then it means the draft can be passed into law.
What I am saying is that as long as people vote no in the referendum, that would be politically significant, but legally speaking nothing can stop parliament from passing the draft even though the people have voted no during the referendum. In terms of the Referendum Act the President has powers to place any document before the people for a referendum, and he is not legally obliged to comply with what the people say.
If people reject the draft, he can still go through parliament to pass the law and that is a cause for concern. If the President instructs his party not to support the draft in parliament, it means that draft will not be going anywhere because it needs a two-thirds majority, of which no party holds that majority in parliament.
VL: Has the current constitution-making process been people driven given media reports that people are being coerced by political parties to air certain views and also there are reports of violence during the constitution outreach meetings?
GL: I think it is a serious problem in rural areas and the problem really would be on how Copac quantifies people’s views to say that is what they said.
The fact that politicians have their own pre-suppositions during the constitution-making process certainly gives rise to scepticism.
VL: Is there any danger in having the country’s constitution-making process being funded by donors?
GL: Obviously the text is being drafted by Zimbabweans and so, I do not see this issue of donors funding the process as a problem. The problem that I can see is difficulty in getting more funding from donors if they say they do not think the text reflects what Zimbabweans want.
VL: What kind of rights should Zimbabwean be advocating for in the new constitution?
GL: The rights include rights to housing, education, free health, rights to basic food and other rights that cost money for people to be able to afford them.
From the talking points, what issues would you say are going to attract interesting debate or problems amongst Zimbabweans?
Yes, certainly the talking point on transitional mechanisms can attract conflict. The current constitution says the President of Zimbabwe must have a name, Robert Mugabe, and so unless that is changed and those parts removed, that could cause a lot of problems. The other talking points that can spark conflict are the vast powers of the President, his power to appoint judges and the fact that he is not subject to any other organ.
There has to be a curtailment of the powers of the executive and a genuinely independent judiciary. Parliament must be given real power to control the President and impeach him. Ten years ago parliament tried to impeach the president, but that was unsuccessful because the current constitution says that if 50% of the House of Assembly consider impeachment, then the Speaker must appoint a committee to look into the issue. The then Speaker of Parliament appointed the chairman of the committee – none other than the Minister of Justice Patrick Chinamasa, but he never convened a single meeting of the committee for 10 years, to possibly remove the President from office. So, the committee can be susceptible to ministerial interference.
VL: What role should the media play during the constitution-making process?
GL: I think public debate of what the constitution should entail has been curtailed by the media. The issues that people discuss during the outreach meetings should be debated in the media. That would be healthy in pointing out to others what should be discussed. The media should really inform this process.
VL: How important is the constitution-making process for any country?
GL: It is very important but we need to have a right to bring constitutional matters to the courts. A locus standi position can enable constitutional matters to be brought before the Supreme Court. This enables the Supreme Court to initiate constitutional applications, but right now we have a very narrow locus standi position, which does not promote the development of human rights in Zimbabwe.
VL: Who should take part in the constitution-making process?
GL: It is disappointing that children and prisoners are being sidelined during the process. Every Zimbabwean should be free to make their views known during the constitution-making process.

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