The values of justice and fairness
Article 6 of the agreement acknowledges that it is the right and duty of the Zimbabwean people to make a Constitution by themselves and for themselves. It states that the process of making this constitution must be driven by the people, inclusive and democratic. It should recognise that the current Constitution of Zimbabwe was made at the Lancaster House Conference, London (1979) to transfer power from the colonial authority to the people of Zimbabwe.
It acknowledges the draft Constitution signed and agreed to in Kariba on September 30, 2007. It also states a determination to create conditions for our people to write a Constitution for themselves.
The Parties agree:
a) That they shall set up a Select Committee of Parliament (two months from the start of the new Government) with the following tasks.
– To set up subcommittees chaired by an MP and made up of MPs and representatives of civil society.
– To organise an All Stakeholders Conference to consult stakeholders on their representation in sub-committees and assist the Select Committee with its work. (Within three months of the appointment of the Select Committee).
– To hold public consultation (which should be completed four months after the first Stakeholders Conference).
– To present its draft Constitution to a second All Stakeholders Conference (within three months of completing the public consultation).
– To present the draft Constitution and accompanying report to Parliament (within one month of the second Stakeholders Conference).
– The draft Constitution will be debated in Parliament for a month.
b) A referendum on a new draft constitution will be held (within three months of concluding the parliamentary debate).
c) If approved in the referendum, the draft Constitution will be gazetted (within one month).
d) The draft Constitution will be introduced in Parliament one month after its gazetting.
Rule of Law, respect for the Constitution
In article 11 of the agreement, the Parties agree that it is their duty, and that of individuals to:
Respect and uphold the Constitution, other laws and the principle Rule of Law.
The legislative agenda priorities, as stated in article 17, are:
– The legislative agenda will be prioritised to reflect the spirit of this Agreement.
– The Government will discuss and agree on further laws necessary to implement the Governments agreed policies and to establish firmly democratic values and practices.
Article 25 deals with interim constitutional amendments. It states that the constitutional amendments which are necessary for carrying out this Agreement shall be passed by Parliament and agreed to by the President as Constitution of Zimbabwe Amendment No. 19 (and to include in this amendment some sections of the Kariba draft Constitution).
People-driven right
The Zimbabwean people would welcome the opportunity to contribute to a new constitution, something they have been demanding over the last 10 years. Many citizens are aware that it is their right to contribute to a new constitution and that a people driven, inclusive, democratic process is needed.
However, the process described in Article 6 is not people driven, as it is controlled by Parliament and politicians. MPs can decide who to invite, and whether or not to include peoples views on the main issues. Zimbabweans have had painful experiences of being consulted, before the previous Constitutional Referendum, but not having their views officially recognised. They know nothing about the Kariba Draft Constitution, which was written by four political leaders. They are concerned that the Agreement was produced in an exclusive process, without public consultation, and that once again, in the making of a new Constitution, they will be left out.
The National Constitutional Assembly (NCA) proposes an alternative way of producing a people driven, democratic Constitution:
– An All Stakeholders Conference selects an All Stakeholders commission, made up of 600 people chosen according to a clear and agreed criteria. The All Stakeholders Conference also decides on the duties of the Commission, and the time frame, and publicises this information.
– The All Stakeholders Conference elects the chairperson and vice-chairperson of the Commission. The chairperson should be a judge, working (inside or outside Zimbabwe) or retired, known for integrity and independence. The five vice-chairpersons can be nominated from the following sectors: The womens movement, church, labour, business and traditional leaders.
– There will be widespread public participation on constitutional debate, covering all geographical areas interest groups and political affiliations, with grassroots outreach.
– The Commission puts information from the public consultation into a Draft Constitution.
– The Draft Constitution is presented at the second All Stakeholders Constitutional Conference and widely distributed to the public, with requests for feedback. The feedback is used by the Commission to make a final draft.
– The final Draft Constitution is distributed widely before the referendum, with all interested parties able to carry out civic education on it, and campaign for or against it.
– If the Draft Constitution is accepted in the referendum, then it is enacted in Parliament.
In relation to Article 7, on the Rule of Law, this can only be effectively carried out when a democratic Constitution is in place alongside other aspects of legal reform, including removing politics from the legal system. Currently, some aspects of the Constitution are not followed, including the section dealing with rights, some high court judgements are not implemented, laws are quickly changed or passed to suit particular interests in a particular situation, and citizens feel it is difficult to obey some laws which they regard as unjust and going against their constitutional rights. A new people driven Constitution could correct these problems.
Discussion
i) What did you think about these sections of the Agreement? Which sentences had most/least meaning for you?
ii) What has your experience been of constitutional and legal issues in the past, including since September 15, 2008?
iii) Which constitutional process discussed in this chapter do you prefer? Give reasons for your answer.
iv) How can you contribute to this process?