Our constitution can only be as good as its custodians

Tanonoka Joseph Whande
July 26, 2012.

So now Zimbabwe’s Draft Constitution is on the table and the political parties are congratulating themselves for a job well done.

Like any other document or constitution, it has good things and bad things.

I worry because we have lived through the abuse of the constitution and the people so much that all holes had to be plugged because I do not trust these politicians at all.

A constitution can only be as good as its custodians.

Our political leaders mock the current heavily panel-beaten constitution of Zimbabwe yet they do not respect their own party constitutions.

But these so-called principals want us to believe that they will respect the new Constitution.

I don’t believe these rascals.

“I am pleased to advise that at long last the constitutional draft is now available after years of intense processes,” gushed Tendai Biti, MDC-T Secretary General, last Thursday. “I have no doubt in my mind that it is a critical document that is founded on solid, modern jurisprudential principles.”

Coming from a seasoned lawyer, this really is nothing short of pornography.

Modern jurisprudential principles of trading away the enshrinement of human rights in exchange of something of benefit, not to the people but to the ‘principals’? Of tailor making a constitution to fit an individual?

We said we did not want people Mugabe’s age to remain in office through unlimited terms in office, didn’t we?

Years of intense processes, my foot!

This was a negotiated constitution. The people’s views were made secondary with most of what the few who risked life and limb to proffer their input not included.

I am not among those who cheer over the arrival of the Draft Constitution.

They will soon be beating us up again, to force us to accept a constitution that contains mostly their views, not ours.

My scepticism arises from the simple fact that this draft constitution is not a product of the people of Zimbabwe; rather it is a product of political parties who made sure to accommodate themselves at the expense of the protection of the people and the nation.

This was more of a negotiated constitution than a “people-driven constitution”.

I fear we are going to start amending this piece of crap as soon as it is adopted. And, given how these politicians have banded together in one corner against the people, we might not even be afforded the opportunity to do so.

Issues central to the individual have been left out or substituted with meaningless additions. And issues that are dangerous to the nation are still in there.

No matter how much we may shy away from this, there is no doubt that an 88-year-old president with unlimited terms of office ahead of him poses some danger to the nation. Lethargy and inaction, as we witness in ZANU-PF, put the nation at risk.

The term limits and age restrictions in our draft constitution were not aimed at Mugabe but at any Zimbabwean who aspires to the presidency of our republic. But it had to be panel beaten to fit Mugabe.

This will, no doubt, cost us.

No line of argument will ever convince me of the need for two vice presidents if, for example, our intention is to have a regional balance between north and south. Are we such morons that we cannot accept a Ndebele president with a Ndau vice president; a Karanga president with a Korekore vice? Or any such mix if at all necessary?

We do not need two vice presidents at all and the draft constitution has acknowledged our immaturity. We should be ashamed of this.

The world has changed greatly and movement of people has greatly become easier.

If, for example, a president flies with his pregnant wife to Cape Town for lunch and, while there, she gives birth and, by supper time, they arrive back in Zimbabwe with their little bambino, would we doubt for a minute the citizenship status of the little one?

By the same token, if I am born and bred in Zimbabwe and elections happen to take place while I am outside the country, why should my vote be disqualified because of my location during that particular time?

Why did we not craft our constitution to remain in step with the Bill of Rights? Could it be that more of the people currently outside Zimbabwe could vote against ZANU-PF?

The Constitution should be giving the people their rights not take them away; every citizen who is eligible to vote should, therefore, be allowed to register and be allowed to vote regardless of their location.

I am worried that Parliament, a body of people directly elected by their constituencies, is almost always being sidelined when important national decisions have to be made.

Why does this draft allow the president to deploy the army within the country without the concurrence of Parliament? Have we not learned enough from Gukurahundi, Murambatsvina and all those ‘operation this and operation that’ which distressed our people because of such abuse of the army by a president?

I know there is a queue of people as long as Zimbabwe’s borders who would like to sue Mugabe for just about any reason one could think of but not only is there presidential immunity in the constitution but the (former) president can just prove good faith as a defence for his actions.

I mean, is this not silly?

I would like to see Robert Mugabe prove good faith for his actions during Gukurahundi, Murambatsvina and the disappearances of an unknown number of our compatriots.

I see that we have gender sensitive laws; women have been rewarded handsomely in this draft constitution because they can commit gruesome murders and be spared the rope while men will dangle at the end of that same rope for committing murder.

This can’t be equality, can it? WOZA should say something about this.

The heart of the matter is that the draft constitution has too many careless trade-offs that leave the nation exposed.

Important appointments are still left to a president who does not need to consult our elected representatives. The same scenario exists in the appointment of Heads of Commissions and the police and other important leaders.

While we welcome a home grown constitution, vis-à-vis the negotiated Lancaster House constitution, our home grown constitution, while not people-driven, will end up being more dangerous to us because it is our product and we cannot blame anyone for it as we are always quick to blame the Britons for the current constitution.

To make matters worse for us, we will find ourselves in a quandary soon enough because a culture of respect for a Constitution must be instilled in all our political leaders who have shown a disturbing lack of respect for their own parties’ constitutions.

Tsvangirai ignored his own party’s constitution to remain in power, causing the MDC party constitution to be tempered with to accommodate his reluctance to step aside.

Mugabe flouted his own party’s constitution and kept convicted party leaders in the Central Committee and Parliament. Remember Webster Shamu (then Charles Ndlovu) and Shuvai Mahofa?

Mugabe ignored the Constitution of Zimbabwe as he refused to implement court orders and unwittingly sanctioned violations of human and property rights.

Even Welshman Ncube and Simba Makoni are accused of violating their parties’ constitutions.

Now these people are giving us a draft constitution full of holes as they seek to accommodate each other.

These are the same people who, for the past two years, “have constantly clashed over the crafting of a new constitution with both parties trying to smuggle their own content ahead of people’s views gathered during an outreach programme”.

Now we must believe that these people have suddenly become custodians of our constitution, which, obviously, is biased in their own favour.

The draft constitution “contains proposals to set up a National Peace and Reconciliation Commission (NPRC) that will deal with past human rights abuses, including Gukurahundi”.

Don’t we have such a ministry now and what has it achieved? Does any of the parties take it seriously?

And who will appoint the chairperson and members of this NPRC? It is the same people who are failing to uphold today’s constitution.
Whether or not our constitution is adopted, there are no guarantees that any one of these parties or their leaders will respect and uphold the Constitution of Zimbabwe.

We need both a good constitution and faithful custodians of that same constitution.

We have a long way to go.

I am Tanonoka Joseph Whande and that, my fellow Zimbabweans, is the way it is today, Thursday July 26, 2012.

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