With two days before the much anticipated constitutional referendum in Zimbabwe, the Constitution Select Committee (COPAC) has been crisis crossing the country to raise awareness on the draft constitution.
Both Houses of Parliament have since adjourned until 7th May after COPAC’s call for MPs and Senators to join the publicity campaign to make the COPAC constitution draft is known to the people before the Referendum and also to urge their constituents to vote YES (Veritas bill Watch, 8.03.2013).
While in the case of Zimbabwe, a new constitution would be of symbolic significance in the quest for the country to re-define itself after decades of intermittent instability, what appears to be clear is the over-emphasis on ‘people knowing the draft and to vote YES’ rather than the need to address the underlying and pervasive culture of violence and political intolerance.
In this issue, we bring to your attention some of the reasons why we think the draft constitution, if it passes into supreme law, is only but a starting point. We do so by providing an over view of the current human rights situation, in broad strokes and where necessary in fine strokes.
Current operating environment
In the past few months, Zimbabwe’s leading human rights lawyers have literally been spending most of their time at police stations, remand prisons and detention centres in response to the assault on NGOs and civil society organisations leaders.
These flagrant, intimidatory and repressive attacks on civil society organizations and their leaders culminated in the Friday 08 March 2013 charging of Zimbabwe Peace Project national director Jestina Mukoko with contravening the Private Voluntary Organisations Act, the Broadcasting Services Act and the Customs and Excise Act.
Furthermore, the police levelled additional charges which included contravening the Broadcasting Services Act Section 38E (1) (a) for allegedly refusing or failing to register as a dealer and Section 182 of the Customs and Excise Act Chapter 23:03 for allegedly smuggling radios and cell phones.
This prompted Zimbabwean Civil Society Organizations to issue a statement, condemning the sustained and escalating assault on non-governmental organisations (NGOs) involved in civic education, human rights monitoring, public outreach and service provision by the State.
According to leading analysts, the state apparatus have changed tactics, and so far they have been following a two-pronged approach; firstly through the creation of a ‘no go area’ into the rural communities thereby suffocating alternative sources of information as well as reminding people of the violence of the 2008 elections in order to keep the population compliant to the state’s dominant wishes.
The second tier of this approach has also seen much focus on organisations that are assisting either in voter education, legal or medical assistance to victims as well as documentation of cases.
In respect of the first tactic, there have been changes in the environment in the last few months, whereby communities are being tightened. There are reported instances community workers being restricted in their movement both by traditional chiefs and District Administrators.
In the face of all these developments, one would expect the Joint Monitoring and Implementation Committee (JOMIC) a multipartisan panel that was first launched on January 30, 2009, pursuant of the 2008 Zimbabwean power-sharing agreement, to take action in ensuring the freeing NGO operating space and peaceful activities but there are reports that this Committee has been very ineffective.
It is reported that JOMIC members have become very elusive since a number of them are now running in the political parties primaries as candidates therefore clouding their ability to run the business of JOMIC. There are palpable fears and uncertainty in the face of all this.
Civil society’s only remaining viable option is SADC mediators and individual countries. however the mediators have remained inaccessible to civil society. We now turn to specific rights.
Children, Women & LGBTs
In the current climate of uncertainty and without robust mechanism to ensure that violence doesn’t spiral, there are growing fears that women and children might be adversely affected.
It is therefore commendable that the head of the United Nations Children’s Fund (UNICEF) on 8 March 2013 urged Zimbabweans, to keep children out of harm’s way, ahead of this week’s constitutional referendum and later this year in general elections.
According to UNICEF’s press release which has been widely endorsed, “At times of great uncertainty, such as during an election, it is important that homes, communities, and schools continue to be havens of safety for children and that they have uninterrupted access to basic social services.”
However , in line with what some Zimbabweans expressed during the International women’s day the promotion and protection of women and children’s rights should not be a ‘once off’ event which happens during national elections but must be an on-going government commitment.
For instance on the day of commemorating the International Women’s Day under the theme; Gender Agenda: Gaining Momentum, Zimbabwe Lawyers for Human Rights (ZLHR) took the opportunity to reflect on progress made so far in promoting and protecting the rights of women (including women living with HIV).
They reiterated the importance of promoting and protecting of women’s rights through programmes and policy that facilitate the meaningful enjoyment of these rights by all women including women living with HIV who bear the burden of the disease in the families and communities.
In this regard, ZLHR called on the Zimbabwean government to provide adequate information, increase efforts towards raising more funds for the healthcare system and reform outdated and discriminatory laws, among other demands.
Further, the discourse of promotion and protection of the rights for children and women in Zimbabwe should also be all-encompassing to include the protection of other vulnerable social groups.
For instance a statement attributed to Prime Minister Morgan Tsvangirai in the Herald edition of Thursday 7 March 2013, where he is quoted as having said those who want to marry another from the same sex have a problem addressing MDC-T supporters in Glenview has been labelled by Gays and Lesbians Association of Zimbabwe (GALZ) reckless and unfortunate coming from the Prime Minister.
GALZ is of the view that Prime Minister Morgan Tsvangirai’s statements fuel public prejudice against LGBTI individuals and contradict the very preamble of a draft constitution that he is seemingly promoting.
Housing and Water
On a separate but related note, there is a wel founded fear that forthcoming constitutional referendum and the pending elections have also clouded the government’s attention to issues that really matter to the electorate, such as adequate housing and water.
For instance on 8 March 2013, The Humanitarian news and analysis service of the UN Office for the Coordination of Humanitarian Affairs (IRIN) reports that the shortage of affordable public housing has become a contentious issue in Zimbabwe due to increasing rural-to-urban migration, thereby creating a fear of squatter camps.
In a Report, it stated that “Local authorities and the government of Zimbabwe have not really invested in the provision of housing and accommodation to the citizenry, except to relinquish this responsibility to housing cooperatives, the majority of whom are siphoning off the little financial resources of low-paid workers,” Shumba told IRIN.
The situation couldn’t have been worse given the current dire water shortages in the urban areas, which raises the sceptre of cholera and dysentry that previously plugged the country.
For instance in a recent meeting held by Bulawayo Progressive Residents Association residents demanded to know if there were any plans to build new dams in Bulawayo. They argued that Bulawayo’s water woes were due to lack of vision by successive governments and local authorities since independence.
They said it was inevitable for the city to face water shortages since there had been no dam built since 1976. Residents also expressed concerns with the fact that Bulawayo’s water chemicals are running out. They called upon Bulawayo City Council to resolve the issue immediately to make sure that residents have access to clean drinking water.
Building on progressive constitutional provisions & Learning from Kenya
Despite the gloomy picture painted above, a new constitution for Zimbabwe would be symbolic and might provide the country with a clean slate and commitment to right the past wrongs. If viewed from the region, Kenya is an ideal benchmark that shows that, with political will, Zimbabwe can also overcome its trials and tribulations.
If anything, if the government continues with its current smart strategy, as pointed at the beginning, the worst that could possibly happen is a low voter turn that might bring the credibility of the elections into question, but there might be less spillage of innocent blood than in the 2008 presidential run off.
However apathy emanating from harassment and intimidation would not be a consolation at all even if less blood is shed, because fundamentally not even a single drop of blood should be shed and also pushing a population into a state of submission , mendacity and acquiescence is bad for democracy and would not serve the country well both in the short and long run.
With regard to the intrinsic content and process of the constitution, although opinions have differed sharply, to a greater and also to a lesser extent, there appears to be a broad cross party consensus that the current draft is a good starting point.
For instance, Professor Welshman Ncube, a constitutional law expert and leader of the other MDC formation opines that, ‘ There can never be a perfect process to draft the perfect constitution, but this particular one was as good as it gets’.
However, in its analysis of sections relevant to land policy, especially sections 296 and 297 on establishing a Land Commission and its role to conduct land audits; and section 72 governing rights to agricultural land, Sokwanele opines that Section 72 is controversial because it incorporates key provisions from the previous constitution that were struck down by the SADC Tribunal on the basis that they were discriminatory and inimical to international law and the rule of law.
Its analysis (available on request) concludes that compromises made between political parties have produced a patchy charter with a mix of good and bad clauses.
With regard to addressing past and future human rights violations, it is relevant to note that by incorporating several aspects in the draft that are relevant to Zimbabwe’s transitional justice discourse, the draft has demonstrated some measure of commitment to non-repetition of the wrongs of the past.
In a brief analysis, the Zimbabwe Human Rights Forum Transitional Justice department looks at some the key issues in the draft relating to transitional justice in Zimbabwe.
In light of the above, Zimbabwe needs to learn from Kenya that that the road towards institutional reform and a culture of tolerance is full of painful compromises.
Armed with this lesson, if all Zimbabweans take the constitution draft just as a good starting point to this painful journey by capitalising on the positives and underplaying the negatives, then the current constitutional furore will be a rewarding exercise in the long run and after all not ‘much ado about nothing’.
Zimbabwe Human Rights NGO Forum