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Draft constitution: Too soon to vote

Opinion & Analysis
A WIT once commented that a camel was a horse designed by a committee.

A WIT once commented that a camel was a horse designed by a committee.

Research&Advocacy Unit

Very rarely are designs of anything useful the result of compromises and especially compromises where the parties involved in designing have radically different ideas.

This might be a fair characterisation of the draft constitution.

This was perhaps inevitable with the Global Political Agreement (GPA) as it stood, for this was not a transitional arrangement, but a peace agreement to lead to a transition, which it patently has not done.

Sadc subsequently (and repeatedly) has insisted on a very simple understanding of what should happen under the GPA, a new constitution and reforms in the many areas that would guarantee acceptable elections.

Note the expected direction of events: Constitution and reform, then elections, not constitution, then elections and, thereafter, reform. The latter is now what Zimbabwe will offer Sadc.

As we pointed out in March 2012, whether we are talking about elections or “normal” civic life, it seems evident that much needs to be done before Zimbabwe could be seen once again to approximate a democracy.

It is evident that much must be done to ensure that elections conform to just the minimum standards advocated by Sadc and considerably more if the range of possible rigging strategies is to be reduced.

However, even if the necessary reforms to the electoral law and the implementing body take place and even if a new constitution emerges out of the very conflictual constitutional reform process, little of this will matter if the institutions that must support the constitution and the electoral machinery are not brought under full civilian control, and serve the citizenry as a whole.

Against all of this, the referendum is clearly not unimportant, and there are some very difficult issues to confront around the referendum, not simply resolved by arguments over whether to vote “Yes” or “No”.

The first issue to confront about the referendum is the content of the constitution, but it is very difficult to separate this discussion from the processes leading up to the constitution.

Now, although it is very clear that constitutions can guarantee very little in the absence of robust institutions, a constitution is nonetheless a very important document for a country — it is the “autobiography of a country” as a respected South African jurist Justice Mahomed has pointed out.

The constitution, therefore, should strongly represent the desires of a country, both in resolving the problems of the past and in framing the way of the future.

This implies that it will reflect as strongly as possible the widest consensus of the citizens of a State: a constitution that reflects the compromises between polarised groups is merely framing the problems and doubtfully resolving them. This is very unsatisfactory. A good constitutional process would have had the principals merely rubber stamp the draft.

A good constitutional process should also not have required a referendum (as was the case in South Africa); a good constitutional process would have had wide discussion among citizens, with all opinions being reflected in the media and a good constitutional process would have had total agreement about how the process would happen and would have been as inclusive as possible.

Virtually none of this can be said to have happened in the Zimbabwean constitutional process from 2009 to date. It can be argued that this process could only produce a camel and not a stallion and some argue, with considerable justification, that a flawed process can only produce a flawed result.

Others argue that at least it is an improvement on the current constitution and all its myriad amendments and there is some justification for this view.

The Women’s Coalition, for example, argues that there are 10 aspects of the draft that are good for women and that the draft meets 75% of women’s demands. This is very encouraging and suggests increasing awareness among legislators of the need to reflect the different statuses of women in society.

However, it must also be pointed out that the gains for women can be undone if the more problematic aspects of the draft — presidential powers, etc — are applied in a politically partisan fashion.

Illustrating this last point, Zimbabwe Lawyers for Human Rights have given the draft a very qualified report.

There are good things and bad things about the constitution; many ways in which it is better than the current constitution and many ways in which the draft does not resolve the problems of the past.

For example, the changes to presidential powers are minimal and still leave too much unaccountable executive power in the hands of one person.

Their analysis, summarised by Institute for Democracy in South Africa and Research and Advocacy Unit, suggests that very little in the draft meets the democratic ideal, most is short of the ideal and some is still downright undemocratic. Clearly, citizens need time to understand the draft, to see how their views have been reflected or not in the draft, and to investigate the areas that they might not understand.

Three weeks seems inordinately short for us to do this, and thus voting “Yes” or “No” without the time for adequate reflection and discussion will continue a very flawed process.

Perhaps there should be a third question for the referendum: TOO SOON TO VOTE?