The draft constitution, coming soon to a referendum near you

By Tino Chinyoka

So, in a show of strange unity for people that have no respect for one another, our Parliament has rubber-stamped their leaders’ draft constitution and will send it to a referendum.

COPAC and some friends of mine still insist that this document is a good thing, that it is from the people and will take our country some place better.

My view remains that the draft is bad for the country, not reflective of the majority of the views expressed by the people and, while I agree that it will indeed take Zimbabwe somewhere, I just don’t buy that ‘somewhere’ is not necessarily ‘nowhere’ in this case.

I believe that this whole process was skewed from the start. Never a supporter of the NCA myself (no mandate from anyone except donors), I do however agree with their argument: a people’s constitution must come from the people, not from on high.

Zimbabwe needed to decide where it stands before coming up with a constitution. The problem with coming up with a constitution before a process of self identification by ‘the people’ is that you cannot cover everyone’s aspirations by mere assumption. So, from the beginning, you set yourself up for failure.

For one, the climate was never right. When you have the kind of problems we have had since 1999, but in particular against the backdrop of 2008 and the violence that followed the elections, trying to craft a constitution where you hope everyone looks only to the future inevitably becomes more an exercise in trying to correct and avoid the last crisis rather than prevent the next one.

The right questions were not asked, or where they were, the answers were ignored.

When everyone in the diaspora said they wanted dual citizenship, polite members in COPAC replied that they had no funds to canvass the diaspora, while the not so polite simply replied: ‘diaspora, what diaspora? They should leave their jobs cleaning old people and come back here to be canvassed.’

Or statements to that effect. [I really should ask, how many old people have had their bottoms cleaned by Dr James Mayika, Director of the McKinsey Global Institute and a Senior Partner at McKinsey & Company and recently appointed Member of President Obama’s Global Development Council?].

But, we digress. Now, when you point out that views from the diaspora were ignored, my good friend and COPAC spokesperson and MP for Harare West Jessie Makome (even I, it seems, am not immune from name dropping!) replies: ‘of course we canvassed the views of the diaspora.’ No harm no foul.

The new constitution needed to be grounded in the character and aspirations of who we are as a people. As a nation, are we going to embrace all the facets of western style democracy (if there is such a unitary thing) or are we going to try and have a democratic/cultural hybrid, incorporating positive aspects of democracy into the rubric of our own experiences, culture and stage of development.

I am inclined to go with the later. Others wouldn’t. But the debate ought to have been held.

I think our culture is not incorporated into the draft constitution. I fear that this will be one of it’s main weaknesses, in that it will forever be a foreign document. However, and I always add this caveat, because discussions on culture are always contestable, that is not to say that culture cannot and won’t catch up with it.

Culture is not something you go to a place and say, aha! I found it!

Rather, it is something fluid, that is ever changing, and yet remains influenced by certain core values that do not change. It’s a shame that we have to hope that all will be well and good, when we could have drafted something that was already well and good in the first place.

I think everyone now accepts that periodic elections (I like that whenever I type that word my fingers always pick ejections instead!) are a good way to rejuvenate governments and give citizens an opportunity to change their rulers.

However, Zimbabwe has had an almost religious adherence to periodic ejections, yet ranks very low on any democracy index. It’s not enough that you have laws or a constitution that guarantees certain rights and processes for democratic government.

What you need are the institutions and cultural imperatives that make such laws meaningful.

An example. I don’t have a problem with Mugabe standing for election at 90 years of age.

You see, our culture has always respected age, and equates it with wisdom. But, our culture also had institutions to ensure that a senile ruler, having lost his marbles, did not destroy the community; he had advisors that he consulted with, and that he exercised his power through.

Not sycophants, who were usually sent to tend to the goat meat, but astute and objective advisors that were drawn from society on merit. I know Tsvangirai has Biti as an able and astute lieutenant, but one person does not an advisory council make, and can you name a non-sycophant in ZANU PF anyone?

I have a problem with making the state a resource, because there isn’t enough of it to go around, but I also don’t think it’s realistic to expect that if Tsvangirai becomes President we won’t have a tarred road connecting Murambinda with Birchenough, via his homestead.

Sharing the state’s largesse has always been a cultural expectation. Chawawana idya nehama, mutorwa ane hanganwa. (What you have, share with relatives, strangers forget.) Pretending otherwise just sets us up for disappointment. Better to have institutions that legislate for an equitable distribution of resources around the country than pretend that our leaders will treat all villages the same.

What do I mean in particular?

I guess that I agree with people in Matabeleland that some form of regional government is needed, with power to allocate resources out of the national budget to local needs.

It’s a shame and an insult that NUST should have a majority of Shona speaking students from outside Matabeleland just as it makes no sense that Harare should see more diamond revenue than Marange.

Chamisa might be MP for Kuwadzana, but to expect that he won’t donate some of his material and political influence to schools and projects in Gutu is just naive.

So, coming back to our draft constitution, I think that we needed to have an honest and frank discussion about what we want our country to become, which aspects of our culture are so ingrained into our collective psyche that innovative ways to make them gel with democratic values in order to avoid conflict, before cobbling up a document that seems irrelevant to who we are as a people and what we and our leaders will actually do.

Notice how we instinctively call them leaders? True democracy says they are mere representatives, not leaders. Hands up anyone that actually believes that our leaders know that.

The truth of this can be seen in the hypocrisy of the debate surrounding exit packages for MPs. The same people that are gleefully voting to adopt a draft constitution that claims to guarantee equality of access to resources want to give themselves ‘compensation’ should the voters decide to eject them from positions of power and influence.

Now, is that a bad thing?

Well, by western standards, a parliament that is well aware that it presided over a bankrupt (financially) state shouldn’t further bankrupt the coffers by doing something of this nature. But culturally? Our leaders were always regarded as being entitled to benefit from the state.

Too bad the MPs weren’t honest enough to engage us in that discussion. It seems, as with every election that has been rigged in Zimbabwe, our politicians really, really don’t want to know what we actually think.

Most Zimbabweans when canvassed for the constitution identified the president’s sweeping powers as something they would prefer to not have. Yet, the draft has largely retained these powers in the person of the president.

We are still left to rely on the pious hope that our president will be benevolent and not really use the powers that their office gives them, despite no evidence to suggest that this is likely.

If Mugabe wins the next election, we must hope that like a chameleon, he will change his colours and respect this constitution, ohh, because he so respected that last one, did he not?

Or, if Tsvangirai becomes President, we must trust that he will respect the two term limit in this constitution, despite the fact that on the evidence, he ignored the two term limit in the MDC constitution.

When you oppose the draft, it’s defenders point to two facts, one contestable, one just downright daft. The first is that the draft is better than what we have now. Sure, the draft is longer, enumerates more rights, and certainly seems to have a lot in it about ‘gender equality’.

But, that’s not necessarily better though, is it? As I have argued elsewhere, we have introduced tokenism as an art form toward social engineering, constitutionally mandating the appointment of women to positions for the sake of numbers and not on merit.

How that advances gender equality is debatable at best. At the same time, while we advocate equality of the sexes, we have decided that women are not so equal as to be subject to capital punishment, which is reserved only for men!

So, we must have the same number of female army generals as we have men, the same female heads of government commissions and companies as men, just no women on death row, no matter what crime they might commit. I am not advocating that we execute women: quite the contrary.

There was no death penalty in our culture until Cecil John Rhodes happened to Lobengula one day, with the assistance and connivance of members of the Christian clergy from Britain. Has our culture now moved to where we no longer regard the life of a man as less sacrosanct than that of a woman. I think not.

The second, and downright dodgy and daft justification given for the draft constitution going forward with its obvious imperfections is that we have already spent a lot of money on it. Voice of America has quoted one of the proponents of the draft advancing this argument ‘…….[Priscilla] Misihairabwi-Mushonga urged the draft’s opponents to be realistic.

The writing of this constitution has been a long, labored and expensive process. It was originally supposed to be ready in 2010. “Because we had to negotiate, it can’t be a 100 percent document,” she said. “But is it indeed so bad that you think that it has not moved us forward?”

This, with the greatest of respect, is a bunch of hooey. It’s the equivalent of saying ‘Ah, I know I set off from Harare to go to Cape Town, because I need to be there, but now that I find myself in Kinshasa, and given the amount of fuel I have spent and the time it has taken me to get here, I might as well keep going north.’

For these reasons, I would be voting NO in the referendum if the MDC had kept faith with and insisted on a diaspora vote instead of making common cause with ZANU PF. Maybe there is method to their selling out?

Tino Chinyoka is a respected Zimbabwean lawyer who writes for Nehanda Radio.com