HomeOpinion & AnalysisTowards a New Constitution: Some Legal Challenges

Towards a New Constitution: Some Legal Challenges

ZIMBABWE is currently embedded in controversy surrounding the proposed constitution—making process. Civil society led by the National Constitutional Assembly (NCA) and Zimbabwe Congress of Trade Unions (ZCTU) have vehemently opposed the inclusive government’s proposed process mainly because they allege the process should be “people—driven”, not parliament—driven, and that it should be inclusive and be led by an independent organisation.

 

Zimbabwe is hardly breaking the ice on this subject. That the process needs to be inclusive is hardly in doubt. Contrary to Lovemore Madhuku’s assertion, there is no mandatory process to follow in a constitution—making process. If there was, a breach of procedure would render the process unlawful and could duly be challenged in the courts of law.

A democratic constitution—making process is critical though to the strength, acceptability and legitimacy of the final document. Constitution writing in the 21st century is different from the previous era where expert writing was the norm.

Probably one of the oldest constitutions, that of the USA was written in 1789 by just a small group of people, whereas the Japanese constitution was written by a group of occupying American personnel. Both have stood the test of time.

The 21st century has seen a change in attitudes because of the principles of democracy. What matters now is not just the substance of the end product and its acceptance.

Ownership and authorship of the process and by-product is critical. This demands a broad and inclusive approach, which is wholly participatory at every stage of the process.

Realism will reflect that constitution—making is all about division and regulation of power. Political elites will not want to leave the task in the hands of interest groups.

Therefore it is imperative that both the government and interest groups be flexible in their approach to the process. At the end of the day what is required is compromise from both sides to find a middle of the road process.

It has been argued that there is actually a legal right to public participation in the constitution—making processes. 

Article 21 of the UN Declaration of Human Rights (1948) and Article 25 of the UN International Covenant on Civil and Political Rights (ICCPR) have been interpreted to confer such a right.

The general meaning of “democratic participation” has been interpreted by the UN Committee on Human Rights to also encompass constitution—making processes. Article 25 ICCPR on the other hand establishes the right to participate in public affairs.

The same right is present in the African Charter on Human Rights, Article 13, which states “every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provision of the law”.

Whereas it is true that these rights initially were meant to protect the rights linked to electoral processes, gradual judicial interpretations have expanded the context to include participation in constitution—making.

The first UNCHR ruling came in the case of Marshall v Canada 1991.The UNCHR ruled that the right to participate in a constitution—making process was undoubtedly part of public affairs (basing on ICCPR).

The right though was deemed not unlimited as Article 25[a] was read to mean that “no group had unconditional right” to choose the modalities of participation in public affairs. It aptly stated that “it is for the legal and constitutional system of the state party to provide for the modalities of such participation”.

In addition a General Comment from the UNCHR on article 25 of the ICCPR further strengthened the right to participation. They stated that citizens have the right to participate directly in the conduct of public affairs when they choose or change their constitution.

This is a persuasive argument because a General Comment by its nature is not binding. In a related case, the South African Constitutional Court had occasion to adjudicate on the nature and scope of the duty to facilitate public involvement in the law making processes in Doctors for Life International v The Speaker of the National Assembly and Others.

The court concluded:
“The duty to facilitate public involvement must be construed in the context of our constitutional democracy, which embraces the principles of participation and consultation…undoubtedly this obligation may be fulfilled in different ways and is open to innovation on the part of the legislatures. In the end, however, the duty to facilitate public involvement will often require parliament… to provide citizens with a meaningful opportunity to be heard in the making of laws that will govern them’….Ultimately what parliament must determine in each case is what methods of facilitating public participation would be appropriate…”

In Kenyan jurisprudence following the Ringera Judgements, Justice Ringera in deliberating on the constituent power of the people in constitution—making observed: “the constituent power of the people could only be upheld in a constitution—making process after the following steps are taken: (1) views are collated from the people and processed into constitutional proposals, (2) a constituent assembly is formed, where these views are debated and concretised into a draft constitution and (3) a referendum is conducted to confirm whether the draft constitution is acceptable to the people and envelops their constitutional expectations”.

These cases illustrate that there are no hard rules or mandatory procedures in a constitution—making process.

However, they also establish that public participation is a right and is mandatory for the process to be legitimate.

Authorities of the day have discretions on how they will proceed in involving public participation. At best the process is a compromise between competing opinions.

It is imperative that Zimbabwe looks at its neighbours to learn how it can refine its process. Four African countries, South Africa, Rwanda, Zambia and Kenya could offer an insight into different modalities that can be utilised in constitutional making process.

The South African model has been hailed as a success process in constitution—making. Bearing in mind that the broker of the Zimbabwe GNU was one Thabo Mbeki, it is apparent that the route envisaged in the GPA is modelled along the South African lines.

The South African legislature (parliament and Senate) were constituted into the Constitutional Assembly. A Constitutional Committee was then established from the Constitutional Assembly. The Constitutional Committee was led by Cyril Ramaphosa and Roelof Meyer.

The Constitutional Committee then established six thematic committees to receive and collate views from all parties. The process was led by parliament and senate and still it is regarded as “people—driven”.

Public participation was by a very strong media and advertising campaign. Their elected representatives reached out to them and invited their views.

The educational campaign used all sorts of techniques including websites, cartoons, radio, television, billboards and public meetings.

From 1994 to 1996 the Constitutional Committee is reported to have received more than two million submissions from individuals and interest groups.

Then the committees of the Assembly drafted the new constitution, first by a working draft and which later was signed into law by President Mandela in December 1996.

Rwanda’s process was a result of the negotiations at the Arusha Peace Summit in Tanzania. The process involved a setting up of a Legal and Constitutional Commission.

The elected legislative assembly  elected a constitutional commission of 12 people (again from its parliament).

Thousands of people were trained, including government officials, members of parliament, judges at national provincial and prefecture levels. These then solicited public opinions on what issues they wanted in the new constitution (public participation stage).

Kenya’s experience makes interesting reading because it just looks like a replica of Zimbabwe. After the 2002 elections a constitutional review process was recommenced after passing of the Review Act.

The Act called for broad public participation at every stage of the drafting process. It outlined a three step constitutional review process of public consultation  by a small review commission, review of draft by a national convention and ratification by parliament.

The commission was mandated to visit every constituency in Kenya to collect citizens’ views and to disseminate the draft widely among the public.

The review commission was also to convene a national constitutional conference for discussion, debate, amendment and adoption of the commissions report.

The national conference constituted of 629 members. More importantly all MPs were also included in the national conference as well as representatives from all political parties, from religious groups, and civil organisations.

The third requirement of ratification proved contentious because the High Court issued a ruling proclaiming that any new constitution needed ratification through a national referendum.

I have omitted the politics of the process but the gist of the matter is that the constitution was defeated by a NO vote in the referendum, just like in Zimbabwe in 2000.

Zambia up to today is still mired in the politics of constitution—making. It has had three review commissions in 1973,1991 and 1996.Currently there is a fourth one led by Wila Mungomba instituted in 2003 by Levy Mwanawasa.

The major obstacle has been the requirements of the Inquires Act which gave government the power to reject or accept people’s recommendations on a new constitution.

The constituent assembly known as the National Constitutional Conference is constituted by almost 498 members drawn from all political parties, civil society and other related groups. Mwanawasa made concessions and allowed the NCC to elect its own chairperson.

The above scenarios show different constitution-making processes. Each was insinuated in context of the countries laws, history and values, and all claim that the process is people driven.
lMakombe is a political writer in Harare. – zimbabwesituation.com.

BY SANDERSON MAKOMBE

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