PROF J MOYO ON THE NEW CONSTITUTION!

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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

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By Prof Jonathan Moyo MP

Last updated: 06/02/2007 12:08:54

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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)
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