NCA Archives: The New Democratic Constitution will benefit all.

Douglas Mwonzora

Agenda Special Edition.
Vol 4 No 1 2001 

By Douglas Mwonzora

It little profits anybody to try to stop efforts towards a new Democratic Constitution in Zimbabwe.

Both President Robert Mugabe and the Minister of Justice, Legal and Parliamentary Affairs, Patrick Chinamasa, have already intimated to the nation that constitutional reform is no longer priority in Zimbabwe. This intimation means basically that the injustices, which are caused by the current constitution, remain. In particular, the President retains the power to declare war or make peace, to validate or invalidate election results, to solely appoint the Election Directorate, the Delimitation Commission and the Electoral Supervisory Commission. Of fundamental importance is that he retains an unlimited term of office together with his other arbitrary powers. Yet the Government and ZANU (PF) think that the redress of these injustices caused by the operation of the current Constitution is not priority.

We submit that it is myopic of ZANU (PF) and President Mugabe to refuse constitutional reform. The President and ZANU (PF) no longer dominate or monopolise political thinking in Zimbabwe and it is not far-fetched that they may lose political power. That means therefore, that whoever takes over power from President Mugabe, inherits the same draconian powers as the President has under the current Constitution. That person may equally use those powers to suppress President Mugabe, ZANU (PF) and everybody in the very manner that the President and ZANU (PF) are suppressing their political opponents. For the president must know that in as much as he does not monopolise wisdom, he does not monopolise brutality. It is therefore in the best interests of ZANU (PF) and President Mugabe in particular, to accept and promote constitutional reform. After all, the President and ZANU (PF) have the opportunity of partidpatingintheAll Stakeholders Conference and register and advance their constitutional interests, including personal and constitutional protection under the new democratic Constitution. From the National Constitutional Assembly (NCA) position therefore, why a party or a person refuses the unique opportunity of being with the people in shaping the destiny of the country baffles the mind.

There are those who believe that the first step should be to take over power and then change the Constitution as what happened in Senegal. With due respect, this belief is as equally myopic and as unreasonable.

For it allows the successor to President Mugabe to be a temporary "despot". It then presupposes prospective goodwill and willingness on the part of the temporary despot to relinquish despotism at a later stage and allow a democratic constitutional process. The simple question not considered by the proponents of this theory is : what if the temporary despot does not relinquish despotism just as President Mugabe has not relinquished his despotism? It is therefore risky to entrust the • destiny of Zimbabwe to one person who after all may turn out to be the duplicate or a perfected alter ego of President Mugabe.

Further, the proponents of this theory forget that the Presidential elections would obviously take place under the current Constitution with the current President having the powers to appoint the electoral organs as well as the power to validate or invalidate the results of the Presidential elections themselves. The current President will still have the powers to set or proclaim election dates and make statutory instruments that govern the conduct of elections.

Under the current Constitution, free and fair presidential elections remain illusory. It is there not in the best interests of the opposition to post­pone the Constitutional agenda until they are in power.

There are those in the opposition who now.believe in the so-called "lukewarm approach", where the constitutional reform is left to the Parliament, as presently constituted. This argument raises interesting moral questions. In principle, the NCA condemned the Constitutional Commission (CQ on the inter alia basis that it did not accept the constitutional reform process to be a preserve of Parliament

The Constitution must be made by all stakeholders who include Parliament itself, trade unions, peasants, ex-combatants, indigenous farmers, commercial farmers and other interest groups. The benign agenda of the NCA cannot stand and should not change because some people are in Parliament.

After all, the present Parliament cannot legally make a democratic constitution because constitutional change requires a two-thirds majority. Further, this Parliament is too polarised to be capable of any consensus.

AfteralL constitutional reform demands soberness and not the heckling, singing and booing that we have noticed in our Parliament.

We therefore conclude that the new democratic Constitution is the salvation of our people. We accordingly have called for an All Stakeholders Conference to design the process and drafting of a new democratic constitution.

 NB-This article was first published in the NCA's Agenda Newsletter on the 1st of March 2001

*Douglas Mwonzora is a legal practitioner in private practice and is the current spokesperson of the National Constitutional Assembly (NCA).