The debate over a new constitution for Zimbabwe

Zimbabwe's ongoing constitutional reform exercise is mired in controversy. At the weekend, 14 opposition parties decided to boycott the government's reform process in favour of a parallel approach under the civil society-led National Constitutional Assembly (NCA). IRIN examines the issues through a series of questions and answers. Why all the fuss? Zimbabwe's constitution was drawn up as part of the 1979 Lancaster House agreement which set the stage for Zimbabwean independence. As such, critics argue that it is not "owned" by the people or representative of their interests. The constitution has been amended 15 times by virtue of the ruling ZANU-PF's political dominance, enabling it to easily raise the necessary two-thirds majority in parliament. Critics say that these amendments - essentially those from 1987 onwards - have concentrated power in the hands of President Robert Mugabe and entrenched ZANU-PF rule. In addition, the accompanying Bill of Rights does not recognise "modern" rights like issues of gender, homosexuality, privacy, and freedom of information. Instead, the Law and Order Maintenance Act - inherited from the days of white minority rule - has granted the government draconian powers. How much power does the executive wield? It has been described as an imperial presidency. Among the concerns of constitutional reformers is that the scope of executive authority undermines the concept of a separation of powers. Parliament is subordinate to the executive, and has been sidelined in crucial decisions such as the deployment of Zimbabwean troops to the Democratic Republic of Congo. Under the Presidential Powers (Temporary Measures) Act, the president is authorised to unilaterally declare an emergency for a period of up to 14 days and rule by decree and cancel any law. Constitutional Amendment 10 granted the president sole power to dissolve parliament and to appoint or remove a vice-president and any ministers. The president also has unlimited tenure in office. Moreover, according to the US State Department's 1998 human rights report, although the judiciary has a reputation for independence, "on occasion the executive branch refuses to abide by judicial decisions." Any other issues? Yes. Out of a 150-seat parliament, the president in effect appoints 30 MPs - 12 directly as non-constituency MPs, and eight as provincial governors who also sit in parliament. Ten chiefs are also elected by their peers, but all are ZANU-PF members. But elections are free and fair? To a large extent. President Mugabe was re-elected by a handsome margin in 1996. In parliamentary elections in 1995, ZANU-PF scooped 117 of the 120 popularly elected seats. Both polls were deemed broadly an accurate reflection of voter will. But, problems remain over the fuzzy definition between party and state, and the evenness of the playing field. Critics also point to the lack of an independent authority to run the elections. The small Electoral Supervisory Commission is staffed by officers seconded from an allegedly partisan civil service. Its commissioners do not have the power to order that an irregularity be corrected. The system of party financing from the public purse - based on the percentage of votes received in the last general election - also presents a sizeable hurdle for what is essentially a weak and divided opposition. What does the government say about constitutional reform? Initially it argued that with an overwhelming majority in parliament it had every right to make constitutional amendments as it saw fit. But in the midst of mounting pressure for reform led by the National Constitutional Assembly (NCA), a 1997 ZANU-PF congress passed a resolution for change which many saw as a challenge to the party leadership. In May 1998 the Parliamentary Reform Committee released a report recommending greater legislative oversight of the executive, but there was little action from the leadership. Stalemate was reached in the debate between the government and the NCA. Then in April this year, President Mugabe launched his own initiative. He appointed a 395-member Commission of Inquiry to review the constitution. The commission, chaired by a high court judge, was authorised to tour the country to sound out public opinion and is expected to present its findings and a draft constitution to Mugabe by the end of the year. A referendum on the draft is then proposed for early next year. The process would achieve what President Mugabe described as a document that every Zimbabwean would be able to "proudly proclaim is his or her constitution". So what's the problem? The NCA - an umbrella body including labour unions, students, churches, opposition parties and women's groups - claims that the government's process is flawed. When the NCA was launched in 1997, it argued that "the people should make their own constitution" rather than a government-led process. It has rejected the Commission of Inquiry on the grounds that some of the commissioners are drawn from ZANU-PF structures or are regarded as ZANU-PF aligned. They include district and provincial leaders, town mayors and all 150 MPs. According to NCA spokesman Welshman Ncube: "You have some 240 commissioners whose presence in the commission can only be explained by (Eddison) Zvogbo," the minister responsible for the government's reform initiative. But some academics and members of civic groups have taken up their posts on the commission and have accused the NCA of "arrogance". Lupi Mushyakarara, a former NCA member, said: "I will be working with ZANU-PF but I will not be working for ZANU-PF." Mistrust also surrounds the role of the president. The president can reject the findings of a Commission of Inquiry and replace commissioners. The NCA rejected an offer by Zvogbo to provide written assurances that Mugabe would set aside his powers to intervene in the commission. What does the NCA want? The NCA wants a transparent and "inclusive" process. Firstly, a national conference would define the mechanisms. A period of nationwide opinion sampling would end in a draft constitution to be endorsed by referendum and then directly enacted. The government counters that the NCA has a "political agenda" and is not interested in remaking the constitution but replacing the government. Among NCA members is the labour-led Movement for Democratic Change launched earlier this year which analysts suggest could pose the first serious challenge to ZANU-PF's hegemony. Where are we now? The NCA has boycotted the commission of inquiry. At a national convention in June it decided to go ahead with a parallel process under a "People's Constitutional Conference". At the weekend, 14 opposition parties that did not attend the June convention endorsed the approach. According to the NCA, over the last two years it has been creating a database on public opinion. It has organised meetings and dispatched trained facilitators as part of an awareness programme. The findings would then be fed back through the system for debate. By early next year it intends to have a working draft of constitutional principles. Meanwhile, the government's inquiry has gone ahead with public hearings on the constitution around the country. Ben Hlatshwayo, a law lecturer who had worked with the NCA and is now on the commission has argued that a "workable compromise" between the government and NCA could be found. But at the moment, given the highly polarised nature of Zimbabwean politics, that seems unlikely. Ncube told IRIN this week that the NCA is adamant it would pursue its approach and the government's process is "unacceptable".