ZIMBABWE'S NEW CONSTITUTION?

So finally there is news from Harare. The Constitutional Parliamentary Select Committee (COPAC) management committee finally submitted the 2^nd draft of the new Constitution to Parliament and to the three principals in the not-so-united Government of National Unity on the 17^th of July 2012. The nation was beginning to lose faith in them and I was among those who were slowly beginning to be pessimistic.

The need for a new constitution is Zimbabwe has ceased to be a point of discussion. Only those who are obsessed with being on the wrong side of history will hold otherwise. For over a decade we have tried to come up with a new constitution that reflects the people’s will and get over with the 1979 Lancaster House Constitution, a ceasefire document whose key utility was to end the liberation war, and have survived this far by infamous amendments. We cannot afford to miss this opportunity. This is the rationale: constitutional development is a process and not an event. It has taken decades and centuries for the democracies we admire to be where they are today and that is why South Africa’s almost overnight transition in 1994 enabled by the 1993 Constitution is referred to by many as a miracle. But even then, the country had to do another Constitution in 1996 to fully entrench what the national democratic revolution sought to achieve. Now South Africa has probably the most progressive Constitution in the world. In Zimbabwe we want a miracle, and that is a problem. We cannot achieve a clean break from the past so easily. This Constitution should be accepted with its few flaws (whatever those are) and be used as a bridge to a new era. Who said the constitution cannot be changed afterwards? 

From what I have read I have noted many provisions that bring about positive reform to our beloved nation. A few examples will illustrate this;

Establishment of a Constitutional Court: It is important that the nation have an independent Constitutional Court for the development of constitutionalism in the country. This will develop our constitutionalism and will foster expediency in the judiciary.

Human Rights: It is commendable that we have gone beyond civil and political rights and entrenched socio-economic rights. I would obviously not know how it will go with the implementation part, but it is one thing to fight for the recognition of socio-economic rights when they are not in the constitution and one thing to fight for them when they are constitutionally entrenched.

Social cohesion: Zimbabwe will have 16 official languages! That is a lot, but yes these languages are spoken in Zimbabwe. And sign language is one of these. I am particularly touched at how we have included languages originally not Zimbabwean but some of them spoken by people who came to Zimbabwe mostly as migrant workers and have now made home in the country. Chewa is a classic example. What this speaks of us is that whilst in some parts of our region Afrophobia is the order of the day, we have chosen to be embracive.

Electoral reforms: Perhaps the most important reason constitutional reform was set during the tenure of the GNU was to bring about electoral reforms, to be followed by elections in a well-regulated environment. The draft does carry these reforms. They might not be as tightly-knit but we must not forget that the whole process was led by three rival political camps and we should therefore accept that, like the GPA itself, the outcome is a compromise. Products of compromise have their limitations.

As a law student I would not want to enter the profession and start practicing law under the current constitutional dispensation. As Thomas Kennedy, I am not an advocate of constant change for the sake of change but laws must go hand in hand with the progress of the human mind, as new truths are discovered and manners and opinions change.Those who stand in the way of progress will find themselves on the wrong side of history.

We have seen a lot of stagnation in the inclusive government and we seem to be failing to agree on issues of national importance. Many people would hold a different view but I think it is time we now have a solid government. The Unity Government played its part to save us from the brink of catastrophe but I cannot envisage a situation where we would go to elections using the current Constitution and electoral system without first regulating the environment under which the elections will be held to avoid a repeat of June 2008.

I would not know what the three parties will conclude on the draft but in the event that they do agree to take it to a referendum, my opinion is that people should go for the YES vote. It is healthy that civil society is there to also guide voters on the merits and flaws of the Constitution and will sensitize voters to vote in a certain way, but civil society also needs to understand that progress comes gradually and opportunities to change the status quo for the better should not be missed. Already the National Constitutional Assembly (NCA) has voiced that it will campaign for a no vote, not based on its analysis of the content of the draft, but for the sole reason that the process was led by politicians. Indeed no right-thinking Zimbabwean ever wanted politicians to lead the process but in all this the voter should have progress in mind in the voting booth. It has cost us a lot of resources to put together this draft and we have also willingly participated in the two-year long process. Will it then not be irresponsible for us to throw the document away?

*Published in ThoughtLeader (Mail & Guardian), July 2012 http://www.thoughtleader.co.za/readerblog/2012/08/02/zims-new-constitution/