|Constitution-making process: Where do we stand?|
|Saturday, 10 November 2012 21:06|
The world has just witnessed the most expensive election in history. Barak Obama has been re-elected as president of the United States of America and, in the process, US$6 billion has been splashed. In a few months’ time, Zimbabwe will be conducting her own election, but before we cross that bridge, let us consider first things first — the Constitution-making process.
The reasons for this well-calculated ploy to frustrate not only the current constitution itself but even the GPA and the principals themselves will be discussed latter. But as of now, for one to fully comprehend the current issues around this constitution-making process, there are about three fundamental issues that need to be appreciated.
The Lancaster House Constitution, with all its loopholes and deformities which of course we have been trying to rectify by amending it at least 19 times in about 32 years, will cease to be the supreme law the very minute the current draft constitution is declared the constitution.
Constitution. And if elections are to be held next year, which of course is inevitable, they will be held with or without the new constitution.
Thirdly, you would obviously need an appreciation of the Referendums Act [chapter 2:10]. This Act is crystal clear on who handles the referendum stage and how they shall proceed. The Act is very direct and straightforward. It is the President, and the President only, who deals with the draft constitution after the parliamentary debate.
I have absolutely no problem with the involvement of Parliament in the constitution-making process, as long as its involvement remains within the parameters of the constitution. But the moment some Parliamentarians exude dangerous elements of being power-hungry to the extent of attempting to literally muscle the principals out the constitution-making process, like what has been seen and heard of late, that becomes a cause for concern. Parliament can only go as far as debating the draft constitution tabled before it after the Second All-Stakeholders’ Conference. Parliament or any other structure or individuals that feel for some funny reasons that the principals should not be involved at this stage or at any other are actually misdirecting themselves.
Having said this, it becomes imperative to consider what both the GPA and the Lancaster House Constitution say with regards to the present situation in respect of the constitution-making process. As envisaged in Article VI of the GPA, after the Second All-Stakeholders’ Conference which in this particular case was held last month (October), the draft constitution and the accompanying report are tabled and debated in Parliament before being subjected to a referendum. In short, this is what the GPA says and it ends there — fair and fine.
At this point, the GPA rightfully assumes that the provisions of conducting a referendum are provided for in the Referendums Act which is exactly the situation at hand. Indeed the Referendums Act [chapter 2:10] clearly outlines the constitutional processes to be followed particularly in case of a referendum. The Act says whenever the President considers it desirable to ascertain the view of voters, he may, by proclamation, declare that a referendum is to be held on such a date(s) and time.
By the same logic, and since the contemporary environment is influenced by the GPA, this therefore means that according to the constitution — the Referendums Act [Chapter 2:10] and the GPA — the right to gazette the conducting of a referendum is solely that of the principals. Parliament, therefore, has no business with the referendum. Even when one considers the roles and functions of Parliament as stated in a presentation on March 22 2010 in Harare, Parliament has no direct business whatsoever with the constitution-making process at the stage of a referendum.
Let me exercise your mind in retrospect, dear reader, to the Mushayakarara and Obey Mudzingwa vs Chidyausiku case in which Justice Bartlett was tasked to adjudicate on the powers of the President as provided for by the Referendums Act. After ruling then that the Referendums Act 1999 does not oblige the President to subject before a referendum a constitution approved by the then Constitutional Commission, Justice Bartlet further ruled that the President is entitled to make any corrections, clarifications, alterations or amendments to the draft constitution. And in doing so, the President does not need approval of Parliament or any other institution.
If Justice Bartlet’s judgment is anything to go by and even if it is to be read within the contemporary context, the principals are entitled to make any corrections, clarifications, alterations, or amendments to the draft constitution without having to consult Parliament or any other structure or institution.
And like what I alluded to before, should the Parliament and/or any other structure be involved in the constitution-making process at the referendum stage, they shall do so upon an explicit request by the principals. One can argue that the Mushayakarara and Obey Mudzingwa vs Chidyausiku case took place in the year 2000 and so much has changed since then. Yes in the political arena so much has changed since then, but in the judiciary, itself an arm of the State wholly independent from the body politic, little, if anything, has changed.
You will also remember, dear reader, that some time in mid-2012, the Minister of Constitutional and Parliamentary Affairs, Advocate Erick Matinenga, attempted to push for the repeal of the Referendums Act. Although this ill-conceived idea befittingly never saw the light of day, it was in itself a well-calculated move to wrestle the Executive powers over the referendum from the President. Notwithstanding the belief that with the advent of the GPA, the Referendums Act is no longer relevant, as it stands, the Act is still constitutional and valid.
Both the GPA and the Referendums Act draw a bold demarcation line between the roles that either Parliament or the Executive plays at every respective stage. Any attempt by Parliament to overlap and trespass into the Executive’s territory does not only scandalise its existence but also transgresses grossly the constitution.
An understanding on the reporting behaviour of the influential structures such as the Select Committee and the Management Committee of the constitution-making process will also give useful insight into role played by the principals in this whole issue. The latter directly reports to the principals and in turn they get further instructions from the very same principals. Principals have been heavily involved with the constitution-making process from day one and it follows logically that they should remain deeply involved until the last day. It is within the principals’ discretion to intervene the process at any stage since the whole project is largely their responsibility.
It should also remain in the conscious mind of every Zimbabwean that the principals have the mandate of the people to address and deal with issues that affect the general populace let alone talk of the current constitution-making process. If the principals think, at any stage of the constitution-making process, that they should intervene, they have the constitutional right on top of the mandate of the people to do so.
So one wonders where some of these politicians are leading or rather misleading the nation into. If taking this stage of the process from the President and/or the principals is what the MDC parliamentarians and their sympathisers want, how then will they proceed in the face of a referendum when in actual fact neither Parliament nor any other known structure has the constitutional mandate to proclaim a referendum? Because if Article VI says the draft constitution is forwarded to Parliament for debate and then we go the referendum, does it silently imply that an unknown structure or Parliament itself calls for and conducts the referendum? I doubt it. The far-fetched dream augmented by naive thinking in the MDC formations is that should the principals be eliminated from the constitution-making process, the MDCs, by the slight edge in numbers over Zanu-PF in Parliament, will retain absolute control of the draft constitution.
The intention is to manipulate their presumed edge over Zanu-PF in Parliament to subvert the views of the people by smuggling back through the back door some clauses which preserve their regime change agenda.
If the MDC Parliamentarians think they can suddenly become more powerful than the law and the constitution and that their newly discovered power can muscle the principals out of the constitution-making process at this crucial stage, they are not only chasing after a mirage but are romantically engaged in wishful thinking.
By the constitution, the Parliamentarians’ role in this process and at this particular stage ends with debating the draft. In any case the debate is bound to yield nothing other than reckless utterances coupled with pointless politically motivated propositions.
And again, if the ever-present differences come up at Copac or at any other structure or level, they are channelled to the principals, who will deliberate on such and direct whichever structure, be it the management committee, as is usually the case, on how to proceed? So whichever way, the principals are an indispensable entity of the constitution-making process at any stage.
So whether we are fooled by the MDC Parliamentarians into misreading the constitutional provisions of the Referendums Act and the GPA itself, whichever road or school of thought they shall follow, they will go in circles until they come back to the principals. In other words, no matter how hard the MDCs try to subtract the principals from this constitutional equation, it will never work. It will all boil down to wasted effort because the draft constitution, in one way or another, will end up with the principals.
At this level, Parliament can never trespass and claim any role. If at this stage Parliament or the management committee or any other related structure should they perform any other function, they will do so as and when required and requested by the President and/or the principals
These roles are in black and white. They should never be used to try and wrest Executive powers from the President. In attempting to do so, the MDC Parliamentarians are either grossly misguided or are simply being politically mischievous.
The Parliament should play its role and let the President and the other principals play their role too in the constitution-making process. It is treasonous for the MDC legislators toeven dream, let alone attempt, to wrest constitutional responsibilities of the Executive from the President.
The fear within the MDC formations is that if the principals are allowed to deliberate on the draft constitution or the outstanding issues in the draft constitution, President RG Mugabe, who is not only a veteran but also a genius in the world of politics and is usually supported by Professor Arthur Mutambara, will obviously outwit their otherwise dull and indecisive leader.