The greatest public expectation during 2014 was the robust commencement of implementation of the new constitution of Zimbabwe.
Sunday Opinion with Vivid Gwede
The new charter was adopted with a resounding “Yes Vote” in a popular referendum on May 22 2013. It was fully adopted on August 22 2013. It is true that most state reform processes have stalled after the elections which ended the inclusive government last year. There are two broad explanations; concentration by ruling party Zanu PF on its internal power dynamics and perennial resistance to state reform.
All eyes are still on the Zanu PF government to put shoulders on the wheel towards implementing the dictates of the new constitution. The process would entail the revision of old laws and writing of new ones where necessary. It was expected that government would find strong motivation to deliver on the mandate given the resultant new constitution marked an important national milestone.
The document replaced the Lancaster House constitution or “Ceasefire Document” accepted by former freedom fighters in Britain at the end of colonial rule. Zimbabwe has a home-grown constitution after 34 years of independence.
The new constitution, despite the squabbles that underscored its birth, even adoption represented an inclusive multi-faceted social contract for Zimbabwe. This new social contract was born out of the need to construct an indigenous unifying centre, basket of national values and the foundation for transforming Zimbabwe into a prosperous state.
Prominent in this fairly grassroots contract, were both the need to: (i) safeguard the values of the liberation struggle; (ii) and form a constitutional basis for the respect of fundamental human rights.
Due to these overriding truths, expectations were that government would safeguard this cohesive national interest. This was despite the ruling party Zanu PF having private qualms with certain values in it. Respecting and implementing the new constitution would be a sign of mature acknowledgement of intrinsic Zimbabwean diversity, rudimentary rule of law and democracy by the government.
One year and counting months have passed without recognisable progress on this national front, causing concern regarding the fate of the new dispensation.
A few pertinent worries emerge from the present. Firstly, the continued non-implementation of the new constitution will imply its sabotage by the national leadership. This is frightful given the government has been unwilling to facilitate a people-driven constitutional reform process like the one Zimbabwe saw under the Global Political Agreement (GPA) at least since 1997.
Secondly, the voluntary mutation of a dedicated civil society lobby in the form of the National Constitutional Assembly (NCA) into a political party as it saw fit, has left a gap which civil society groups in their different focuses must come together to fill.
In June 2014, Crisis in Zimbabwe Coalition (CiZC) showed the way by convening an all-stakeholder’s conference from which critical insights emerged. One of them leads to the following point.
Thirdly, the death of an inclusive platform such as the former Constitutional Parliamentary Select Committee (Copac), or the disbanding of the Ministry of Constitutional Affairs was untimely at a time when serious implementation should have really begun with alignment of laws.
Lessons from other countries such as Kenya, also emerging from the same conference, show that there should have been a multi-stakeholder committee to oversee changing of laws. This can take the form of a committee with these stakeholders: government, civil society, private sector and political parties. The current scenario where only one player, Zanu PF even under the auspices of government, is wholly in control of the process is disastrous.
There are many problems which arise with it. Firstly, the other stakeholders, notably those who had an interest in constitutional reform, no longer have a say over the timelines and strategy for changing laws. Secondly, government has been giving varying figures of the number of laws to be changed, between 300 and 400.
No one else knows where these figures or the difference between them came, or if they are reasonably exhaustive and where priorities have been nailed.
Thirdly, the specific content to be put into the laws should be a matter of national concern, especially where it has a direct bearing on constitutionally contentious issues in the country such as those affecting fundamental human rights. “Do not separate text from historical background.
If you do, you will have perverted and subverted the constitution, which can only end in distorted, bastardised form of illegitimate government,” said James Madison, a critical player in the founding of one of the revered state documents in the world, the constitution of America.
This is in order to avoid accusations, perceptions, temptations, and realities of misalignment of laws from the letter, context and spirit of the new constitution. Such a sad eventuality will defeat the whole purpose of an inclusive, people-driven constitution making process in the first place, and not justify the humongous public effort deployed to it.
In conclusion, the constitution implementation exercise that has slowed down must be expedited, and as fairly represenative as the initial constitution making process.
Stakeholders such as government, civil society, media, and opposition parties have a role to play to avoid, as Madison warned, “bastardised form of illegitimate government” which can come through the permanent stalling, or subversion of the constitutional reform drive in Zimbabwe.
Vivid Gwede is with Crisis in Zimbabwe Coalition (CiZC). He writes here in his personal capacity.