Democracy in Zimbabwe will come in small and painful steps

By Tino Chinyoka

So, it is now official. Zimbabweans will go to the polls on March 16th to vote in a referendum on the draft constitution.

Given that both ZANU PF and the MDC support the COPAC draft, it is fairly likely that the ‘Yes’ vote will prevail and that the present draft will become the law of the land.

As readers of this column will know, I do not think that the draft constitution is the best that it could have been, nor does it represent, in my view, the aspirations of most Zimbabweans.

In short, I believe that the politicians did what all politicians good or bad will ultimately do: they cut a deal.

The NCA has also condemned the draft.

“Our major problem in Zimbabwe has been the concentration of power in the president. If you have a very powerful president who is not restrained by law, just restrained by their own good heart, the law would simply allow them to go on and on and we create a problem for our country. That problem has not been solved by the current constitutional draft.” Dr Madhuku is quoted as saying.

ISO Zimbabwe, in more typical scathing language, issued a statement saying;

“The COPAC Constitution is a negotiated and elitist peace charter by the three parliamentary political parties and their western backers….. While gains have been made in relation to the inclusion of some socio-economic, gender and labour rights, a deeper look at the COPAC Draft shows that it fails to address fundamental issues of severe poverty, gender and social inequality, economic democratisation and full political democracy.”

However, if, as seems likely, the draft constitution becomes law after the referendum, what should those that oppose it and vote ‘No’ do next? Would it be appropriate to continue to oppose the constitution and keep asking for ‘a people driven’, less ‘elitist’ alternative? Should the NCA and ISO carry on fighting or shut shop?

I would venture that the answer to that last question out to be ‘No’.

The NCA and others opposed to the draft constitution should continue fighting, but not the same fight. If ever the phrase ‘turn your swords into plough shares’ ever meant anything, it is this: those involved in the fight for a just constitution must expend all energies toward giving the new constitution the best possible chance to succeed.

By enthusiastically supporting it and using their networks to disseminate information and educate stakeholders on the positive aspects of the constitution. The rationale for this is fairly obvious but needs to be said: if indeed the draft is as flawed as some of us think it to be, then it’s success is less assured when people with good intentions congregate to tear it down instead of prop it up.

With no firm foundation in ‘the people’ as the NCA argues and being the result of a political ‘sell out to the West’ as ISO suggests, the new constitution would need the collective goodwill of all that value democracy and the rule of law in order to have a better chance to get our country to where we want it to be.

The present constitution bans torture and other inhuman or degrading punishment, but that did not stop Ray Choto, Mark Chavunduka, Raymond Majongwe, and countless others from suffering the most heinous forms of torture at the hands of the security services.

The present constitution guarantees freedom of expression and a free press but that did not stop the police from arresting, harassing, haunting and hounding Grace Kwinjeh, Geoff Nyarota, Sydney Saize, Mzwandile Ndlovu, Vincent Kahiya, Constantine Chimakure …….and countless others as they worked to keep us informed.

The present constitution did not provide for impunity, but fake war veterans, ‘youths’ with grandchildren and other hangers-on have trampled over the rights of peaceful demonstrators, diligent farmers and other freethinking Zimbabweans since 1999 and none of them have been brought to book.

The present constitution provides for the election of a President, yet the winner of the last legitimate presidential election finds himself a mere Prime Minister, and his supporters (and indeed all Zimbabweans) denied the choice they made at the ballot box.

There are numerous other examples. The point being, a constitution on its own will not bring democracy if there is no political will to eschew lawlessness. Without respect for the rule of law, no document, no matter how well drafted, will ensure that people’s rights are respected.

A constitution is only as good as the people that are charged to observe, respect, defend and implement it.

Anyone that supports and works for the development of democracy and a robust human rights protection regime should, once the fight for a constitution results in a watered down version, (as now seems inevitable) do their best to ensure that the positive aspects of the new law outshine the negative.

To do otherwise and keep fighting a lost fight is not only self serving but hypocritical.

Yes, it would have been good if the power of the executive presidency were watered down a lot more. Who wouldn’t want elections that were prescribed for a specific date after a specific number of years as opposed to having the President call them?

Is it too much to ask the an Attorney General be accountable to more than just the President? Wouldn’t it be more affordable to have a set number of Ministers and no deputies, rather than give the President carte blanche to create ministries to fit the number of cronies he has at any given time?

Of course, of course not and but of course.  But, once the draft becomes law, I think these qualms ought to take a back seat, and all Zimbabweans should rally behind the constitution.

Acknowledging this should not be seen as selling out on the part of the NCA and others opposed to the draft. Instead, it should be seen as being consistent with one of democracy’s key components (without which there really is no point): elections and referenda have consequences.

Accepting results of elections has been a peculiar problem in our part of the world, and for good reason.

However, assuming that there is no intimidation and the ‘Yes’ campaign wins, wouldn’t it be ironic if those that condemned ZANU PF for not accepting defeat in 2008 suddenly found themselves not accepting the same medicine five years down the line?

The phase we are in now is akin to a marketplace. PaMusika. COPAC have on their stand a half backed improvement on the brew that ZANU PF has peddled and watered down since 1980.

On the MDC/ZANU PF stand is a (resigned?) acceptance of the same COPAC offering, spiced with a promise that in their hands, every provision will be respected.

The NCA, unelected by no-one and yet without any hint of irony continues to shout that only they have a people driven version of the same offering, and that only theirs leads to the promised land. However, in this market, the NCA version will not be only sale in March 16th.

In this age of prophecy in our country: let me make a prediction: between now and March 16th, I would urge people to listen to the NCA pitch and vote ‘No’, in the hope that a better draft can still be crafted.

However, if that campaign should fail, as seems likely, I will be among those hoping that all Zimbabweans do their best to make sure that the new constitution succeeds in bringing us what we all yearn for: democracy and the rule of law in our homeland.

If there was any lesson from the 1999 referendum then it is this: democracy in Zimbabwe will come in small and painful steps. If MDC supporters and other progressive people vote ‘Yes’ in the referendum, perhaps that is because they realise that ZANU PF will not negotiate itself out of power, that to outwit Mugabe, one must feign agreement and then strike.

It might also be that change will not come in huge strides, but in incremental, imperceptible steps that, hopefully, the marauding hordes of ZANU PF pawns will not see until it is too late. Or it might be something even less conspiratorial like ‘COPAC got it right and the NCA, ISO and others (plus Chinyoka) got it wrong, the draft is perfect’ kind of thing.

Whichever way, after the referendum on the March 16th, all Zimbabweans MUST respect the result that comes, and since that is likely to be the new constitution, that too.

The Chinese have a saying: a journey of a thousand miles begins with one step. Even those as disappointed with the COPAC draft as I am cannot honestly say, if and when it becomes law, that the new constitution is worse than the one have now.

As first steps go, that, is a biggie.

Tino Chinyoka is a respected Zimbabwean lawyer and columnist for Nehanda Radio.com.