HomeOpinion & AnalysisColumnistsWithout legal force, constitution-making process is resource wasting

Without legal force, constitution-making process is resource wasting

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Word from the Constitutional Parliamentary Select Committee is that the constitution-making outreach programme will come to an end this month.

It is public knowledge that the whole exercise to gather people’s views on the new Constitution has been poorly planned and executed.

There have been several reports of violence and intimidation in some areas, thereby making it very difficult for ordinary Zimbabweans to freely express themselves as originally envisaged under a public-driven process.

Some meetings have been attended by more than 500 people, but with only less than six making submissions. Surely, how can we describe such a situation as people-driven constitution-making?

Anyway, the question on many people’s lips is what’s next after the outreach programme?

We now expect the 26 thematic committees to sit down and start sifting through the huge volume of rappoteurs’ reports and translate all this into constitutional language.

This is not an easy task especially in this polarised political environment. The next stages after this face uncertainty given that they have not been gazetted into law.

According to the Global Political Agreement, the draft constitution arising out of the outreach programme shall be taken to the Second All-Stakeholders’ Conference for finalisation. We all know that the First All Stakeholders’ Conference was a complete disaster.

I have not yet seen anything put in place to convince me that the second one will be different.

As long as political parties continue to pursue narrow political interests, it will be very difficult to convene a successful stakeholder conference where different groups and organisations have an equal say in the drafting of a new Constitution.

Article 6 of the GPA says the draft constitution will be taken to Parliament for debate after the Second All-Stakeholders’ Conference.

The agreement says debate in Parliament has to be concluded within one month before the draft constitution is gazetted and then taken to the people to vote yes or no.

What is not clear is whether or not Parliament can block the draft Constitution being taken to a referendum.

And when the GPA says on conclusion of debate, are we saying Parliament is approving the draft or it is merely general debate? If Parliament has power to reject a draft Constitution, the GPA is silent on what then happens. Does the rejected draft go back to the Stakeholders’ Conference or that will be the end of the story?

The GPA further goes on to say in the event of the draft Constitution being approved in a referendum, it shall be gazetted and then introduced in Parliament for debate.

So does Parliament have power to override what the Stakeholders Conference and the referendum would have both approved?

If that is the case, then surely the people-driven process becomes highly questionable.

For me, the referendum must have final say and Parliament must simply endorse what the people would have said. It is the people that would have spoken.

As representatives of the people, Members of Parliament should carry the wishes of the people during constitutional debate in the House.

What is more disturbing is that the process as outlined in the GPA has been omitted from the gazetted Constitution of Zimbabwe Amendment Act (No 19) 2009.

The brief background facts to this development are that when Constitution Amendment No 19 was originally gazetted in February 2009, it was not the entire Bill that had been passed by Parliament.

Talks between the three political formations facilitated by South Africa resulted in the Minister of Justice being directed to:

“Immediately arrange that the full text of the Constitution Amendment No 19 as approved by Parliament should be gazetted and signed” (point 20 in the Implementation Matrix of the Outstanding Issues)”; and Section 11B (3) of the Statute Law Compilation and Revision Act provides that the version of an individual Act printed in terms of Section 11B (1) shall, upon notification in the Gazette “be accepted in all courts as the sole version of the statute concerned as at the date of such notification”.

What this means is that the version of Constitution Amendment No 19 that was published on Friday September 3 is the version that has force and effect. All other versions are null and void.

As already pointed out, it is instructive to note that the original February 2009 Constitution Amendment No 19 had set out the stages of the Constitution – making process and those stages included the holding of a referendum.

The February Constitution Amendment No 19 sought to do this by incorporating Article 6 of the GPA.

Those stages were set out in explicit detail and their incorporation meant that the provisions of Section 52 of the Constitution would no longer apply. Section 52 requires, among other things, a two-thirds majority approval in Parliament before the Constitution can be amended.

The new version of the gazetted Constitution Amendment No 19 leaves out the provisions in the original Bill that stated that Article 6 would guide the constitution-making process.

Further, it does not set out Article 6 as a separate schedule. The wording of General Notice 244 of 2010 is telling. The inter-party political agreement is merely appended “for the information of the public” — meaning its publication together with the Constitution Amendment has no legal effect.

So what this means is that Parliament will need a two-thirds majority to approve the Constitution Bill.

This was not the case in the original Bill passed by Parliament. And because there is no political party that commands two-thirds majority in Parliament, the new Constitution can get stalled in the House even if the referendum would have approved it.

Why this process has been omitted in the gazetted Constitution Amendment No 19, begs an answer from the responsible authorities.

Without legal force, the constitution-making process as outlined in the GPA becomes an academic exercise. What a waste of Government and donor financial resources if this is what is going to happen!

•John Makamure is the Executive Director of the Southern African Parliamentary Support Trust.

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