10 March 2013

If I could, I wouldn’t: Five reasons I wouldn’t vote for the Draft Constitution

We the People of Zimbabwe...

It begins with so much promise, so much hope but somewhere along the way it teeters horribly towards the edge before catching itself in its skirts and tumbling into an oblivion created by its own self contradictions. The Zimbabwean ‘Final Draft’ Constitution which has taken several years and an obscenely large amount of money to create fails to live up to the task that its creators and the people of Zimbabwe had set upon it. Its genesis was mired in controversy and this less than auspicious birth is reflected in its one hundred and seventy two pages.

As a Zimbabwean living in the diaspora I have also been alarmed by the complete lack of information surrounding the document. Many of my friends had never seen the document let alone read it. Many did not know what the fundamental differences between it and the Lancaster House Constitution it was replacing were and yet more did not have the slightest inkling of an idea what its implications were.
So out of the infinite goodness of my heart, I have summarized my top five biggest gripes with the ‘Final Draft’ Constitution. Comment is free so let’s talk about this document that is supposed to dictate the direction that the Zimbabwean sovereign experiment will take.

1.       Process, process, process
My first issue with the document itself has nothing to do with the document itself but the  way it was crafted. For those of you who follow Zimbabwean events, the Zimbabwean government spent millions of dollars reaching out to the Zimbabwean populace, trying to get their views on what they wanted in a new Constitution. At the end of all this information gathering what then happened? The two principal political parties bickered for months on end, grandstanding and posing, until they finally came up with a compromise ridden version that suited their needs.
Which begs the point, why ask the opinion of Zimbabweans if they opinion was not going to be of paramount concern ahead of the interests of Political Party X vs Political Party Y. Where were the civic organisations, the human rights groups, the universities, the Lawyers and the Intellectuals during the bickering phase? Where were the people of Zimbabwe? Oh yes, that’s right, their voice didn’t count did it.

2.      Executive President
The ‘Final Draft’ Constitution retains the post of Executive President amongst other things that should have been thrown out with the bathwater (more of that soon). The President is described as “the Head of State and Government”.
Most countries like the United Kingdom and Germany separate the two functions, for example David Cameron is the head of government and Elizabeth II is the head of state, François Holland is the Head of State and Jean-Marc Ayrault is the Head of Government. The reason in most cases is to split power and avoid vesting it in the arms of one person. In a country like the United States of America which combines the two, a complicated system of checks and balances is put in place to counteract the resulting concentration of power. Failure to do that means one person elects all Ministers, Deputy Ministers, Permanent Secretaries, Ambassadors, Chiefs, Judges of the Supreme and Constitutional Court, Commissioners of all entities whose function is to provide oversight of the Presidency…. The problem should be apparent.

3.      Retained too much of what was bad about Lancaster
In this section I include: an unlimited number of Ministries (Zimbabwe has almost double (40) the amount of Ministries than South African(25) despite having an economy a tenth of the size [USD550 billion versus USD6 billion], incidentally Switzerland has 7 Ministers), a Senate (again a matter of size), reserved seats in Senate for Chiefs (really? Why?), an amazing ability to grant a right then add a ‘but…’ several chapters down the line. A glaring example is the constitution’s lengthy declaration that men and women are created equal then several chapters later prohibit execution of female criminals under any circumstances (think about it carefully: a man could kill one person and be executed, a woman could kill an entire village of children and receive nothing worse than jail time). Others include property rights which are granted then curtailed for foreigners/descendants of foreigners whose land was “redistributed” (this also after a lengthy description that all citizens of Zimbabwe are equal whether by birth or descent) or in the case of the class of land identified as Agricultural Land which can be seized by the Government with no notice at all (contradicting a previous article), not compensation (contradicting another article to respect International Law [SADC law obligates a government to compensate the owner of the property for the value of the land]), and removing the possibility of the owner approaching the courts (which contradicts the article on the inviolability and supremacy of the courts).  

4.      Too much of what was talked about by Zimbabweans is missing
In this list I will include: multiple citizenship, voting rights for Zimbabweans living outside of the borders of Zimbabwe, retroactive application of some of the provisions of the Constitution (a controversial one I admit but still,,,we wanted it, we should have gotten it), protection or declaration of any sorts of LGBT rights (the writers decided to skip the issue entirely), an attempt (even a weak one) at decentralization of power from the centre….

5.     A compromised document no matter what you call it is a compromised document
It reflects that in its lack of defining anything. The “Yes…but” nature of it all. Government is tasked with protecting freedoms, “within the means available to it” (what are those means? Who decides what’s reasonable, what is sacrosanct and can’t be touched). At the end of the day it is a lawyer’s paradise, you can argue your way out of anything by referring to another chapter within its pages and that’s exactly the problem with long constitutions, especially long bargained ones. It is a dictator’s dream, you get to choose who overlooks your work and Parliament is given the side kick role of rubber stamping Executive Orders. At the end of the day, and most frightening of all, it is a citizen’s nightmare and that’s why I would vote NO, if I had the means to vote this coming Saturday.  

You should too. 

1 comment:

  1. Très intéressant, clair, instructif. I read part of the draft of the new Constitution, without reading before the Lancaster House Constitution, so I cant compare but your key points are lightening! I agree with the danger to let too much power in the hand of the president, the question of land's compensation/redistribution, voting rights for Zimbabweans living outside of the borders of Zimbabwe. It's a fundamental Text and when we think a State keeps the same Constitution for several decades, it needs to be thought. Let's wait the result of the referendum.. Thanks for your article