24 April 2009

Zimbabwe: Constitution is Word of the People


IT is accepted by almost all Zimbabweans that our country needs a new and democratic Constitution.

This is not a new phenomenon. Some 10 years ago, we were in a similar national mood. It is striking that what divided us 10 years ago, still divides us again today albeit with some players having changed positions. For example, ZANU-PF's Eddison Zvobgo of 1999 has become MDC-T's Eric Matinenga of 2009.

The bone of contention has remained unchanged: What is the most appropriate and legitimate way of making a democratic constitution? There are differences of opinion over this question.

The National Consti-tutional Assembly (NCA) was formed in 1997 to advocate and promote a particular answer to this question. That answer is that a democratic constitution must be autho-red through a people-driven process. It would appear that although we are still divided on the central question of the most appropriate and legitimate way of making a democratic constitution, the various opinions in circulation all prefer to agree that the process must be "people-driven".

This year, the debate on a new constitution in Zimbab-we is now centred on: What is a people-driven process? This issue has become critical because today's politicians think that the mistake of their predecessors in 1999 was not to use the magic words "people-driven".

This is why the plenipotentiaries who drafted the so-called "Global Political Agree-ment" littered their Article 6 with an oversupply of the expression "people-driven", while providing, in substance, a process which is neither people-driven nor legitimate. This is part of the naïve political thinking that one can get away with an undemocratic constitution-making process merely by describing it as "people-driven".

In view of the importance of the issues surrounding the concept of a people-driven constitution, this is the first of a series of articles designed to raise pertinent issues about a constitution and why the process of writing it must be people-driven.

In this week's instalment, I propose to deal with the essence of a constitution in the hope that a proper understanding of its essence will lead to an appreciation of the nature of the processes that must lead to its enactment.

The constitution is the supreme law of any country. It regulates the manner in which that country is governed. In particular, it must state the powers and responsibilities of the various organs of State. It must ensure that those powers are exercised with due regard to the individual rights of persons. This means that a constitution must decide what individual rights are worth protecting and then set out to prescribe the expected behaviour of State organs in such a way as to protect and promote those rights.

Constitutions were invented to control the tendency by politicians to abuse power. The history of humankind demonstrates beyond any shadow of doubt that political power corrupts and those who wield it are prone to use it arbitrarily at the expense of individual freedoms and rights. The purpose of a good constitution is to entrench strict controls on the exercise of power.

To ask politicians to preside over a constitution-making process is the clearest indication, not only of failing to grasp the essence of a constitution, but also of lack of seriousness.

In a constitution, society decides what type of governmental system it wants for itself. In a good constitution, there must be set out the specific powers of each State organ created. The constitution must stipulate how each organ relates to other organs also created by the same constitution. In so doing, a good constitution must ensure that there are what are called "checks and balances". These are mechanisms which ensure that no single organ is given the power to override all other organs. All organs must work towards one goal, namely to provide society with a good, effective and accountable governmental system.

Being the supreme law of the land, a constitution must enshrine the nation's fundamental values, which live beyond the life of any single citizen. It must enshrine values which guide and bind existing and future generations.

What does it mean to say that the constitution is the supreme law of the land? It means Parliament cannot make a law which is contrary to the constitution.

Any law which is inconsistent with the constitution is void. It also means that the constitution is there to tell Parliament what to do. The constitution tells the President what to do and what not to do. It tells the courts what is the law.

The constitution tells every person what rights are protected by law and what to do if those rights are violated. To say the constitution is the supreme law means that the constitution stands above every organ of State and every person in the country.

Now, if the constitution has this supremacy, whose word is it? Surely, it cannot be the word of Parliament because the constitution is there to tell Parliament what to do. It cannot be the word of the President because the constitution is there to tell the President what to do and what not to do. It cannot be the word of any single person. A constitution is regarded as supreme because it is the word of the people as a collective. It is the word of a people as a collective prescribing how each one of them must behave, according to each one of the fundamental rights and directing how the organs they create must function.

The range of questions which a constitution must answer clearly show who should answer them. Some of the questions are: What should be the size of our Parliament? Who should be the head of our government, President or Prime Minister? Do we elect our head of government directly or we elect our MPs and then leave it to them to elect a head of government? What should be the size of our Cabinet? Who should appoint judges? What should be the term of office of our leaders? Who should exercise more power between the President and Parliament? Who should conduct elections?

These and other questions show clearly that the answers must not be provided by politicians of the day nor should the process of getting these answers from the people be led by politicians. These answers must be the word of the people.

Naturally, if the constitution is the word of the people, it is the people themselves who must write it, hence, the expression "people-driven". This brings us to the next question: Do people write a constitution thro-ugh their representatives in Parliament or do they find a mechanism to write their constitution directly?

The answer is simple: the people must find a mechanism to write their constitution directly, leaving their representatives in Parliament to work under the constitution and prescribe other laws subordinate to the constitution.

This is the issue we will tackle in detail next week.

- Lovemore Madhuku is the chairman of the National Constitutional Assembly.

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