Parliament must not lead making of a new constitution

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By Prof. Jonathan Moyo

IS IT proper or acceptable for the current hung parliament to be the key institution to spearhead the making of a new democratic constitution under which Zimbabwe will be governed well into the unknown future?

The answer is an emphatic no.

There are four reasons that should be carefully considered to understand why the decision to use Parliament as the vehicle for making a new constitution for the country is fatally flawed and they are the following:

Because it is necessarily a product of the temporary electoral choices that depend on the political winds, interests and prejudices of the moment, parliament is by definition not inclusive enough to represent, articulate or defend the broad and permanent interests of society that must define the pillars of any democratic and enduring constitution.

The coalition government formed on February 13 is not yet in a position to play a cohesive national role in the making of a new constitution for the country, not only because it still has to resolve outstanding issues around its formation, which could lead to its premature collapse if not carefully handled, but also because Zanu PF and the two MDC formations are yet to find a common public interest agenda to define the coalition government beyond partisan interests.

The fact that the three ruling parties already have a political agreement to use the unpublished Kariba draft constitution as a reference point of the proposed constitution compromises the integrity of the parliamentary process that is now under way and leaves it open to charges of being a sham since the three parties cannot be reasonably expected to vote against their own Kariba draft in a parliament they control.

Given the current state of the sanctions-ravaged economy, Treasury is unable to provide even a cent to fund the constitution-making process as it remains unable to pay salaries of civil servants or fund key service delivery areas such as health and education.

It is instructive to examine further each of these reasons. Many fair-minded people with no axe to grind will agree that an exercise as fundamental and permanent as the making of a new democratic constitution must be funded by the people who desire to make that constitution.

Any country that wishes to have a new constitution but is unable to fund the process of making that constitution has no business going ahead with the process as doing so guarantees losing ownership of both the process and its product.

Our economy is currently in dire straits. Tendai Biti, who these days seems to be more interested in being a used-car dealer for MPs than doing his job as finance minister, said during his revised budget speech that the nation must do only those things that Treasury can pay for from what it gathers through taxes.

If Treasury cannot pay the salaries of civil servants, it means that it cannot afford to pay parliament for the making of a new constitution. In fact, the Members of Parliament who are supposed to lead the constitution-making process have not received their allowances since the convening of parliament last August. It is too much to expect such financially-squeezed honourable members to listen to Zimbabweans without prejudice on the kind of constitution they want for themselves and posterity.

When the disputed Speaker of the House of Assembly, Lovemore Moyo, announced the appointment of a 25-member Parliamentary Select Committee on the new Constitution on April 12, he made the following shocking, embarrassing and rather treacherous plea to foreign interests:

"The constitution-making process will require substantial financial and human resources. I, therefore, call upon all progressive forces to join hands with us in ensuring that the process brings tangible results that we can all be proud of. Let us all take this challenge head on and pool our resources together for the good of Zimbabweans.

"It is my fervent hope that development agencies and other foreign organisations will take as much interest, if not more, as they took in (sic) the challenges that our country has been facing and contribute financial and material resources in support of the work of the Select Committee."

While we all know that development agencies are donors, some of them countries that have imposed illegal economic sanctions that are behind Zimbabwe’s meltdown, who on earth did the Speaker have in mind by "other foreign organisations"?

Did he mean the likes of Al-Qaeda, MI6, CIA, the Mafia, Colombian drug lords or Somali pirates?

And why does the Honourable Speaker believe that development agencies and foreign organisations should have more interest in the new constitution-making process than Zimbabweans?

Is the new constitution intended for the foreigners who have been invited by the Speaker to fund it or it is for Zimbabweans who cannot fund it due to the fact that the economy has been destroyed by some of the same foreigners who are now lining up to finance the new constitution-making process with their trinkets, like vultures ready for a kill?

It would be very dangerous to the protection of our national security if parliament is allowed to open a treacherous door to inflows of dirty funds from shadowy foreign organisations, and even from hostile development agencies, under the guise of supporting the flawed Kariba constitution-making process.

The issue of how to fund the process and the sources of that funding needs to be carefully examined not only to ensure that Zimbabweans own the process and its product by funding it themselves through their Treasury, but also to avoid the real and possible danger of opening a new and dangerous channel for dirty political money to support a partisan political programme for the next general election disguised as funding for a new constitution.

Besides the funding issue, a surprising aspect of the new constitution-making process is that it is supposed to start with a draft that represents an uneasy agreement reached in January 2008 between Zanu PF and the two MDC formations aboard a boat in Kariba.

Although that draft remains a confidential document despite its importance to the new constitution-making process, it is an open secret that some of the party negotiators agreed to it not because they believed in its hybrid and even contradictory provisions arising from a bad cut-and-paste job but because the negotiators either thought their party structures would reject the draft or they hoped to use it as a strategic advantage ahead of the March 29, 2008, harmonised elections.

Apart from the fact that the Kariba draft should not be used as reference point in the new constitution-making process because it is a secret document whose contents are only known by those who hope to impose it through a Parliament controlled by the same parties that drafted the document, there is also the fact that it has unacceptable cut-and-paste contents uplifted from the 2000 Constitutional Commission draft and the 2001 NCA draft and including a whole lot of untested prejudices smuggled onto the draft by its partisan authors.

It would be an historic injustice to use a hung Parliament representing the narrow if not dangerous interests of three political parties to endorse a secret document that purports to address the nation and posterity under a process that is principally if not only funded by development agencies, some of them very hostile to the State, and shadowy foreign organisations.

Some of these concerns would be minimised and contextualised if the coalition government itself was now a cohesive national body with a common public purpose and interest beyond hidden agendas. Yet the truth that everyone can see is that, despite the very commendable fact that there is now a remarkable reduction of political tension in the country, a lot of political games are being played within and around the coalition government.

For example, while Treasury is failing to fund even simple requirements such as office space or furniture for some ministers who are still squatting in the offices of their colleagues or are operating from their cellphones and cars, there are all kinds of lavishly funded so-called ministerial stakeholder conferences and retreats that are supposed to produce policy blueprints, including on the new constitution, in the name of the coalition government. The real purpose, source and amount of this funding remain a mystery that points to worrying fault lines within the ruling coalition.

There is also the fact that the government continues to be bedevilled by claims that there are major outstanding issues going back to the September 15, 2008, interparty agreement yet to be resolved. The continued bickering over outstanding issues plus the fact that the MDC-T is still unable to speak clearly and unequivocally against the illegal economic sanctions which it continues to falsely view as only travel bans against individuals does not inspire much confidence that, after almost 80 days in office, the coalition government has attained the necessary unity of purpose to facilitate a genuinely national constitution-making process through Parliament.

But the nub of the matter is that Parliament, whether now or in future, is not the right institution to spearhead the making of a new constitution. To be sure, there’s no doubt that Parliament does indeed represent the will of the people, but only in the limited sense of a five-year term and within the confines of the constitution under which it is elected.

No Member of Parliament is elected for life or forever. Parliament can within its term make laws and this really does not scare or concern anyone in a democracy because the same laws can be unmade by the next parliament if the people find the laws offensive or unworkable.

Whereas laws are subject to change within and between parliamentary terms, the pillars of a democratic constitution, once made, are supposed to be forever and therefore permanent, and not subject to the whims and caprices of parliaments that are the products of political winds and their occasional prejudices.

As such, while parliament can indeed amend the constitution subject to the entrenched provisions for its amendment such as the requirement for a two-thirds majority, there is no democratic example that justifies having the same parliament making a wholly new constitution under the direction of specific political parties that may happen to dominate it at a given time.

In 1999, the national consensus was that parliament, which then was dominated by Zanu PF with 147 members out of a total of 150, was not the appropriate forum to spearhead the making of a new democratic constitution. The Zanu PF government then argued unsuccessfully for a process led by a Parliamentary Select Committee.

What is interesting is that opposition politicians who in 1999 argued against the use of parliament, such as Prime Minister Morgan Tsvangirai and the entire leadership of the MDC-T now in the coalition government, are unashamedly going back on their original position and are in 2009 taking the Zanu PF position which failed in 1999.

It is hard to avoid the conclusion that Prime Minister Tsvangirai, his MDC-T colleagues and their donors are being opportunistic at the expense of principles: When the MDC-T was not in power in 1999, it opposed the use of Parliament to make a new constitution in the hope its opposition would get it into power. But now that it is in government, the MDC-T is supporting the very same parliamentary process it vehemently opposed in 1999 hoping that it can use Parliament, which it believes it controls, to outfox everyone else and remain in power to rule alone under an undemocratic Kariba constitution.

While this opportunism is understandable in the context of the everyday games that fair-weather politicians play as part of their prejudices, it is nevertheless unacceptable when it comes to democratic constitution-making which must be driven by permanent principles and not temporary prejudices.