By Brilliant Pongo
A lot has been said about the need for a new constitution in Zimbabwe, a “people-driven” constitution. There is however, a dearth of actual reasons as to why the 1979 Lancaster House Constitution cannot be amended rather than scrapped. After all, it is still our supreme law.
Indeed, we live in an era of constitution-making. Over 200 national constitutions exist today across the world, with over a hundred having been written or re-written in the last 25 years.
Most new governments, seeking the democratic credentials that are often a condition for recognition by other nations and by international political, financial aid and trade organisations would prioritise the writing of a (new) constitution if they did not already have one.
The question is: why has Zimbabwe, a country that already has established its identity in almost all organisations that really matter in today’s world, a country that already has a constitution born out of a revolution; preoccupy herself with the cumbersome, costly and time consuming exercise of writing a new constitution?
Does Zimbabwe, really need a new constitution or is this a costly and pointless exercise by those who want change for the sake of change?
In an article published in the Zimbabwe Independent, the MDC-T secretary-general and Finance Minister Tendai Biti opened up about why he wants a new constitution. My take is that this is also the view of his party.
“The current Zimbabwe state is largely based on a culture of violence, corruption and political predation, which in any event form the nucleus of Zanu PF’s DNA. But the preamble to the COPAC constitution makes very clear the need to create a new Zimbabwe underpinned by the values of democracy, rule of law, hard work and the supremacy of God,” Biti said.
Is this why we should scrap the 1979 Lancaster Constitution, Honourable Biti? Are you sure that a new constitution will renew Zimbabwe? It is fallacious for Biti to think that a new constitution will fix all these problems that bedevil our dear country. I have always and will still argue that constitutions are by no means perfect documents.
Our own constitution has been amended 19 times, indeed why shred the Lancaster House document if we can amend the “sticky bits” that we may feel are undemocratic?
If one has broken windows on his house, surely it would be foolish to demolish the entire building. The simple but wise thing to do would be to replace the broken windows without bringing the whole house down.
Constitutions are not perfect documents, they are after all written by men and not by God. Thus, Lovemore Madhuku and other constitutionalists will be best employed flagging up areas that need to be improved in our constitutional documents that already exist, rather than cry for a new constitution every time they spot a fault.
Even the much acclaimed constitution of the United States of America crafted in 1787 and viewed by many as the originator and model of traditional constitution making by a hand-picked elite group of men was by no means a perfect document.
The crafters of the American Constitution at that time knew that what they had put together was not perfect, and they had the vision to allow for improvements.
Scholars have recently reflected on Article V of the U.S.
Constitution, the provision for constitutional amendment, as an admission by the framers of the likely imperfection of the constitution and a permission to work within its frame to adjust its terms.
Thanks to a small but very noisy group, the debate on the need for a new constitution for Zimbabwe was sparked. Back in 1997, some civic organisations that included churches, political parties and the so-called human rights groups formed the National Constitutional Assembly (NCA).
This group felt that it was critical for Zimbabwe to have a new “democratic-people-driven-constitution”. They felt that Zimbabwe needed to scrap the Lancaster House Constitution, but the NCA did not articulate very well to the people of Zimbabwe what they objected to in the constitution and why this could not be amended within the current constitution.
They politicised the exercise and with time it was no longer just a new constitution for Zimbabwe but regime change became the slogan.
We all witnessed the culmination of this in February 2000 when opposition parties did not bother to articulate the contents of the draft constitution but instead used the platform of the referendum vote as a way of protest against Zanu PF and President Mugabe.
The people of Zimbabwe were asked whether they wished to replace the 1979 Constitution with the “new Democratic Constitution”, sadly many people got so polluted by the misinformation from the opposition parties such that the majority did not know what the NO or YES vote was all about.
It was no longer about the constitution, it had become an issue of regime change.
Today it is said that more than 60 percent of leaders of all the formations of MDC, now admit that the “NO Vote” to the constitution was a massive political mistake on their part.
We already have the framework, within which we can amend our current constitution, and it’s not like we cannot use it, we have after all amended our constitution 19 times so far.
However, it is disturbing to see that some of those whom we have trusted to put together our constitution cannot put the nation before their political party issues.
The constitution is not a document that should be used to propel one party into power or even be used to score cheap political points, there should be a clear distinction between legal issues, which constitution-making is, and party politics.
What all political parties should and must do is take a step back and allow the process to be legally driven after all it is a national constitution that we are trying to come up with.
The former Chief Justice of South Africa, Justice Ismail Mohammed, once observed that “the constitution of a nation is not simply a statute which mechanically defines the structures of Government and the relations between the government and the governed, it is a ‘mirror of the national soul’, the identification of the ideals and aspirations of the values binding its people and disciplining its Government”.
The Lancaster House Constitution was crafted by a hand-picked group, a template that is not new, but was used by the Americans back in the 18th century and it worked.
Today no-one would expect an 18th century process to match the standards of the 21st century nor would anyone describe the making of the American Constitution in 1787 as a democratic exemplar for today, what with the calls for public participation as validation for the constitution as democratic.
However, there are problems with the new people-driven way of drafting a national constitution. How the constitution is made, as well as what it says, matters. Process has become equally as important as the content of the final document for the legitimacy of a new constitution.
Thus, genuine public participation is a prerequisite and this means the public should be guaranteed social inclusion, personal security, civic education, good channels of communication between all levels of society amongst other things in order to facilitate this process.
Having said all this, it is plain for all to see that constitution makers today are still confronted by the problem posed by Alexander Hamilton in 1787, of whether “societies… are really capable or not of establishing good Government from reflection or choice, or whether they are forever destined to depend for their political constitution on accident and force.”
Some would argue that the COPAC constitution-making process was people-driven, given that a national outreach programme was undertaken and this culminated in the production of the “National Report” capturing the views of the people.
Nonetheless, arguments and questions will arise as to whether all that which was gathered from the people has been included or represented in this report and how it would then be put into what is to be our supreme law ‘the constitution’.
When all the views and opinions are gathered; when all is said and done, will it not be down to a hand-picked elite group to decide whether what we as Zimbabweans have made as contributions, is worthy to be in our national constitution?
My point is why are we even wasting time; why not work with the 1979 document via amendments to get what we want? In all seriousness, we have had a handful of draft constitutions that have gone through all these processes and came to nothing.
As a matter of fact, we are still using the 1979 document plus its amendments. It would be fair to say most Zimbabweans in general thought and may still be right to think that we already have a constitution and wonder why we are tying ourselves in knots by trying to create an artificial Constitutional crisis.
The 1979 Lancaster House Constitution as amended 19 times, is still the countries supreme law. We should stay with the 1979 document for indeed it is a part of our country’s history and we must and should not wish it away by changing for the sake of change.
