Constitutionally Speaking: the new draft constitution in Zimbabwe

In this opinion piece, Pedzisai Ruhanya argues that the new draft constitution in Zimbabwe is a flawed document that fails to address the democratic needs of the country, and deflects attention away from the other crucial reforms that must occur before the next elections. Pedzisai is the Director of the Zimbabwe Democracy Institute.

The need for a new constitution in Zimbabwe arose from a crisis of state governance and legitimacy. When the National Constitutional Assembly formed in 1997 to demand changes in the constitution, they were primarily concerned with the President’s excessive executive power. These powers, they believed, had been severely abused and a new constitution was needed to allow democratisation to take root. The first new draft constitution in February 2000 was rejected in a national referendum because it left the president’s powers fundamentally unaltered.

This latest process of constitutional reform has been driven by Article Six of the Global Political Agreement signed in 2008, which formed the basis of the coalition government of ZANU-PF and the Movement for Democratic Change (MDC), which is in power today. The incoming MDC hoped that the new constitution would form part of a raft of essential reforms that would pave the way to holding free and fair elections.

At the Zimbabwe Democracy Institute (ZDI) we believe that the drafting process for this new constitution has been fundamentally flawed, producing a weak constitutional draft. Importantly, we also believe that interest in this draft has diverted attention from the other, crucial reforms necessary for free and fair elections to take place.

A flawed process, a flawed outcome.

Any analysis of the new draft constitution should appreciate that it is a product of political negotiations, horse-trading and compromises between the main political parties in government, and not a product of a genuinely people-driven process. Consequently, we believe that the new draft constitution does not reflect the views and aspirations of the people of Zimbabwe, and must be viewed as a transitional constitution that citizens should revisit in the future and review, when the political environment is conducive.

Whereas the draft was crafted by the major political parties in the inclusive government – ZANU- PF and the two formations of the Movement for Democratic Change (MDC) that have representatives in the House of Assembly – minority parties and interests groups were sidelined.

We believe that such a critical national pursuit should not have been discriminatory and partisan. While ZANU- PF and the MDC are the major political players, most Zimbabweans do not belong to these political parties. These Zimbabweans, in civil society, business, minority groups and small political parties should have been equally represented in the constitution-making process. This flawed process has inevitably produced a flawed document.

The new draft constitution is not a significant improvement on the current constitution: It retains excessive executive powers of the president; fails to embrace the principle of provincial devolution; fails to abolish the death penalty; and retains discrimination on the basis of sexual orientation. What is more, Zimbabweans that are in the Diaspora have no right to vote and the contentious issue of dual citizenship is not addressed by the constitution, leaving it to the winning party in the next election to legally address citizenship rights.

That said, to its credit, the new draft constitution grants significantly more rights to women and has more provisions aimed at supporting gender equality. For instance, it provides that 60 Legislative seats shall be reserved for women and that in all constitutional commissions or committees, representation shall be 50 per cent women, and 50 per cent men. Furthermore, for the first time, social and cultural rights such as the rights to health, water and education are protected in law. The difficulty will be how to realise those rights, given that the state is economically bankrupt.  

Unlike the current constitution, the new draft constitution also sets term limits for the president at two terms of five years. However, this does not apply to the serving president. So, even though he is already in the role, President Mugabe would still be entitled to two further presidential terms under the new constitution.  This falls short of what most Zimbabweans wanted. They expected Mugabe to barred from contesting the next election on the basis that he presided over the state’s political and economic decay, not to mention his involvement in colossal human rights violations during his three-decade rule.

Passing through…

Prior to its presentation to the legislature, all political parties decided to vote in favor of the draft constitution. Consequently, it received unanimous endorsement from the two Houses of Parliament, the House of Assembly and Senate: a passage reminiscent of the one-party-state days under ZANU-PF. The two houses rubber stamped the draft without debate at all.

Given the elite consensus between the MDC and ZANU-PF and their decision to support a ‘YES’ campaign, their supporters will vote for the new draft constitution when the referendum is held, (probably in March).

Some civil society groups including the National Constitutional Assembly are campaigning for a ‘NO’ vote to the draft constitution, but ZDI expects that the draft will be approved at referendum because the majority of civil society organizations have been co-opted into the state after their political ally, the MDC, joined government in 2009. Moreover, these organisations are under economic pressure support the constitution despite its imperfections: The drafting process was bankrolled by their major funders to the tune of more than $45 million (US). This has complicated and compromised the position of many in civil society, and explains why there is a lack of thought leadership from this sector on the topic of the draft constitution.

A draft is not enough.

But ultimately how much difference would a good draft constitution make? It is our view that the draft constitution is ultimately unlikely to improve the political situation in Zimbabwe because the major governance crisis in Zimbabwe has never been about the constitution, but a failure to abide by the rule of law and a gross failure to observe principles of constitutionalism.

In many instances, the ZANU-PF government has simply ignored constitutional provisions or, where the Judiciary ruled government conduct to be unconstitutional, simply amended the constitution to suit its needs. This challenge remains. So too does the problem of partisan and politicized government institutions that violate constitutional principle of the separation of powers, and a security sector that openly supports ZANU-PF.

Unless there is robust pressure from SADC and the AU as well as the wider international community, Zimbabwe’s next election under its new constitution will be marked by the ‘hard’ authoritarian tactics of Mugabe and his political cabal, who are desperate to retain power. After their loss in 2008, which followed the use of ‘soft’ authoritarian tactics, Mugabe & Co. will not want to leave anything to chance: It is the margin of terror not the margin of error that has kept this regime in power.

Without tough, wide-ranging reforms that make the draft constitution strong in principle and practice, this margin of terror is likely to remain.