RULE OF LAW & CONSTITUTION MAKING IN ZIMBABWE

WHAT is law? When is a law not a law? These are questions that have detained glossators and other jurists for many centuries. In positivistic terms, a law is a set of rule and commands which bear the imperator of compliance of penalties and sanctions against non-compliance. What if that command or instruction is so outrageous in its defiance of logic and common sense that it does not carry any legitimacy and moral authority? Is it still a law? This is a challenge that jurists have faced in judging the qualitative value, impact and meaning of laws passed in autocratic and undemocratic matrixes. The Holocaust, for instance, was implemented on a raft of “laws” enacted by the Third Reich. Apartheid was equally implemented and executed by a raft of “laws” enacted by the National Party between 1948 and 1992.   In Zimbabwe, over the past 33 years we have suffered horribly under the guise of “laws” which are not legitimate laws, legislation that lacked any moral jurisdiction which was used as a mere guise to expropriate people’s rights. This includes various amendments made to the constitution, in particular, constitutional amendment number 7, which created the institution of the imperial President and constitutional amendment number 16 and its vicious assault on the rights to own property. Other pieces of legislation which fall into this category include the Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA). The tragedy with the counter proposals from Zanu PF to the agreed COPAC draft of July 18, 2012, is that they are legally and morally unacceptable as a law. Never mind the basic law of a country, they seek to perpetuate the ideology of subversion of the people’s rights, aspirations and will. In short, they constitute judicial fascism and fascism by any name will always be fascism. At the epicenter of the Zanu PF constitutional expurgation are three false jurisprudential premises. The first one is that a constitution is being made for one individual and one individual alone, the incumbent president Robert Mugabe. It is tragic and blasphemous to craft a constitution for and around an individual. The second false premise is to make a constitution based on the assumption that the status quo ante will always be the same and that Zanu PF will always be in power. Thus every provision has been crafted on the basis that Zanu PF will be here forever and has a God-given right to rule us forever. A good constitution, like any good contractual document must be based on mistrust, the assumption that any individual holding power can abuse that power. Thus a negotiated constitution should act as a bulwark against that power. Put differently, the Zanu PF Politburo should have had the mindset of any ordinary opposition and defined the protections that they would want to see in a constitution. Instead, they saw themselves as permanent rulers. The third premise of the Zanu PF constitution is the superimposition of internal party positions and policies on the rest of the country. Thus the internal party issue of indigenization, compulsory youth training programme, homophobia and the hatred towards the principle of devolution. Private Zanu PF policies were now surreptitiously being imposed on the people of Zimbabwe. A constitution is not a battleground for party policy issues. That is the role and function of a manifesto. Surely that must be self evident to clowns at corner Samora Machel Avenue and Rotten Row Street. Part of the tragedy of the Zanu PF position lies in the fact of ignoring that the Copac draft of 18 July was a massive work of negotiation and give and take. Each of the political parties at the table made some gains that are saleable to its constituency. Equally each of the parties got stuck in some unpalatable positions which it accepted quid pro quo. For one party thereof to seek to hold veto over an exercise of negotiation is as malicious as it is mischievous. In my first article on the constitution, I posited the position that there are six principles that we must use to judge the Copac draft of the 18th of July. These principles are: # Does it create a break with the past and establish a new order?   # Does it protect the people against imperial power?   # Does it establish and protect a clear separation of power and authority in state structures?   # Does it create independent institutions, particularly, those bulking against power and big government?   # Does it articulate the developmental aspirations of the people? # Does it create mechanisms for state and generational succession and regeneration? To do justice to the Zanu PF draft, it is also important to subject the same to the scrutiny of the above principles. Before doing so, let me just descriptively summarise 30 major amendments that are contained in the Zanu PF revisionist document. # Removed devolution entirely from the draft and deleted all references to devolution.   # Reinsterted provisions proscribing the re-establishment of an elected Executive Mayor.   # Re-inserted the provisions authorising the dismissal of elected Councillors by a Minister.   # Removed the Peace and Reconciliation Commission   # Removed all indigenous languages from being official languages.   # Introduced mandatory National Youth Service. # Removed the open, transparent and public interview process for the appointment of judges and replaced it with a Presidential appointment system. # Done away with a Constitutional Court and reverted to the status quo in terms of which the Supreme Court doubles up as a Constitutional Court. # Removed the key provisions in the COPAC draft providing for an Independent Prosecuting authority and retained the office of the Attorney General as presently constituted. # Banned dual citizenship for those who are Zimbabwean citizens by descent or registration.   # Took away citizenship granted by the COPAC draft to so called “aliens” from the SADC region.   # Mutilated the Bill of Rights in many places by deleting all references to democratic society. # Redefined agricultural land to include any land used for poultry and epiculture so that they would be able to take any property used to rear chickens or pigeons. # Took away the important COPAC provision that restated the right of every Zimbabwe, black, white, yellow and green of owing any agricultural land. # Removed the important Land Commission whose functions were, among other things, to audit all agricultural land and to regulate the sale or use of any agricultural land. # Taken out the Presidential running mate provisions and replaced them with the current system with the new provision that in the event of the office becoming vacant, the replacement will be chosen by the party to which the President belonged. # Reposed all executive authority in the President by deleting the provision which vested it in the President and Cabinet. # Removed provisions in the COPAC draft limiting the terms of office of parastatal heads, service chiefs and army commanders and heads of other government controlled institutions. # Restored the current Presidential immunity provisions.   # Restored the Presidential power to declare war without any restraint or constraint.   # Made all State institutions subject to the obligation to promote and defend the values of the liberation struggle.   # Stripped the Speaker of the National Assembly of all administrative powers and vested these in the Clerk of Parliament.   # Introduced unfettered powers of the President to dissolve Parliament at his or her whim.   # Removed provisions limiting permanent secretaries to two five-year terms. # Taken out the provisions requiring a law regulate the Central Intelligence Organisation (CIO) and requiring the CIO to be non-partisan, professional and national in character. # Inserted provisions which require independent commissions and the judiciary as well to promote and to be guided by the ideals and values of the liberation struggle. # Reintroduced the useless and failed Office of Public Protector.   # Removed the democratic provisions for the appointment of the Anti-Corruption Commission.   # Put a proscription on foreign funding of political parties.   # Put provisions that specifically and criminalise homosexuality.   I now present the heresy and infamy presented by the Zanu PF amendments to the agreed COPAC draft constitution.   Does it create a break with the past and establish a new order? With great respect, the Zanu PF draft does not in any way create a break with the past nor seek to establish a new legal order. On the contrary, it is even worse than the current constitution. Its connection with the past is that is it is pre-dating the past. The current legal order in Zimbabwe is characterised by weak institutions, predation and the concentration of power in one office and individual. The COPAC draft sought to vaccinate against this ill based on the uncontestable founding principle of the supremacy of the constitution predicated on human rights, good governance, orderly transfer of power and gender equality. The Zanu PF draft seeks to reverse these founding principles by the creation of a super constitutional principle known as “the founding values and ideals of the liberations struggle”. To most of us, the values and ideals of the liberation struggle are equality, democracy and the rule of law, gender equality, good governance and orderly transfer of power. By recognising other values and ideals that are beyond this, then Zanu PF can only be referring to the values of predation, patrimonialism, corruption, violence, state vandalism, patronage and exclusion. In fact as argued above, the people of Zimbabwe are better off with the Lancaster House constitution than the Zanu PF draft. We certainly cannot go the past. Does it protect the people against imperial power? In my previous article I argued that the COPAC draft dealt with imperial power in four facets namely a broadened definition of citizenship, a comprehensive bill of rights, a democratic and accountable president with shared and trimmed executive powers and the creation of security services accountable to the constitution, parliament and the electorate. In all above issues, the Zanu PF draft reverses the same and in some instances creates a legal order that is even worse than the current status quo. On citizenship, the biggest insult is the exclusion of persons born in Zimbabwe from parents or grandparents that came from the COPAC region. Zimbabwe, like South Africa had thousands of immigrant workers from Malawi, Zambia and Mozambique. To therefore deny them citizenship is not only bad law but anti-regionalism and anti-pan-Africanism. Moreover, denying dual citizenship to Zimbabweans whose citizenship was acquired by descent or registration is equally pretentious and malicious. More so when that very same constitution makes it clear that all citizens are equal irrespective of whether your citizenship was acquired by birth descent or registration. The bill of rights has been tempered with by removing any reference on its interpretation to practices in other democratic countries. In addition, women’s protection to their right to reproductive health has been removed. Also the general provision that gave everyone the right to information including government information has been removed. Freedom of expression and freedom of the press now are now defined not to include what Zanu PF describes as public indecency and morality. In the COPAC draft, the right to privacy included the right not to have one’s medical condition disclosed. Zanu PF has removed this basic and fundamental right. In addition, the right of every Zimbabwean to own land and agricultural property has been removed. Thus the Zanu PF draft is weak and is fraught with hatred and concepts that are foreign to modern jurisprudence. Perhaps the biggest crime of the Zanu PF draft is the restoration and creation of a bigger and more monstrous imperial president. Their president no longer shares power with Cabinet, can dissolve Parliament at any time, appoints judges and appoints all members of commissions. He can declare war without going to Parliament. In short it is a president that is above the law and the constitution itself. How anyone in this day and age can be so subordinated by one individual is amazing. Many years ago Margaret Dongo, the fiery human rights activist once described Zanu PF men as “wives of Robert Mugabe”. The current constitution seeks to make us slaves and subjects of an imperial president. I have lived the past 45 years of my life in dictatorship under an imperial president. I am not prepared to live my next 45 years under the same power. My children, my grandchildren and my great grandchildren will urinate on my grave if I succumb to this insanity. The COPAC draft sought to reconstitute and redesign the state by creating security services that were subject to and accountable to the constitution, the people and the elected Executive. The COPAC draft went even further to create a public complaints body against the omissions and commissions of the security sector. It went further to subject security chiefs like the president to limited tenure of office of two five-year terms, a provision that also applied to permanent secretaries, heads of parastatals and those heading government bodies. Zanu PF has removed all these provisions. It has created a security service that is privately owned by the president as if Mugabe will live forever. It has also removed the public complaints body as well as the terms of office of security and civilian functionaries. In short, there is a vicious protection and retention of the old order. Does it establish and protect the clear separation power and authority in state structures? Sadly the Zanu PF draft fundamentally alters the COPAC principle of clear separation of power. In the COPAC draft the President cannot dissolve parliament save for mandatory elections. Parliament appoints judges and therefore there is a clear separation of authority. The office of the Independent Prosecuting Authority ensures that the President cannot control and politicize prosecutions. The Zanu PF draft retains everything on the insatiable table of the imperial president. How sad? Does it create independent institutions, particularly, those baulking against power and big government? The COPAC draft constitution creates important independent institutions that protect citizens. These include the Anti-Corruption Commission, the Independent Prosecuting Authority, National Peace and Reconciliation Commission, Zimbabwe Gender Commission. It also goes further to strengthen existing commissions such as the Zimbabwe Electoral Commission, the Zimbabwe Human Rights Commission and the Zimbabwe Media Commission.The Zanu PF draft seriously assaults the appointment process of the Anti-Corruption Commission and alters the powers of the Media Commission. By removing the Independent Prosecuting Authority Zanu PF amendments seek to propagate the Zanufication and politicization of prosecutions. Sadly the Zanu PF draft also removes the National Peace and Reconciliation Commission which is critical in post conflict reconstruction and in vaccinating against what I called the hard and soft genocide in this country. This commission resonates with every right thinking person in Zimbabwe. Sadly the chaos faction in Zanu PF which was responsible for producing the constitution Frankenstein being discussed herein lives in the past. Does it articulate the developmental aspirations of the people? Zimbabwe for many years has been subjected to uneven development. Without a doubt, the state has produced itself through Harare and the Mashonaland provinces. Life in Zimbabwe evolves around Harare from the application of passports and the granting of liquor licenses and other mundane tasks which can be decentralized. To deal with this mischief, the COPAC draft sought to create a devolved state in clear recognition of the noble principle of equal development. The COPAC constitution sought to create powerful elected mayors who could chat the developmental agenda of their communities and elected Councillors who could not be fired willy-nilly at the special instance of a minister. Sadly, that has been removed. The whole of Zimbabwe is undeveloped and will continue to suffer under the weight of a dual enclave economy. Devolution is one important answer to destroying the thick barriers of enclavity. Those who say it promotes tribalism are being disingenuous. The whole world is replete with devolved states. Does it create mechanisms for state and generational succession and regeneration? The COPAC draft sought to do this by providing limits to state functionaries, the president, security chiefs, members of independent commissions and heads of parastatals. As indicated above, Zanu PF has removed terms of limits from most of the above. The issue of running mates, which has been tempered with, clearly guarantees the superiority of the imperial president. Furthermore by stating that a political party must choose which of the two vice presidents will succeed a departing president, scenes of instability are being sown. In a factional party like Zanu PF asking them to choose a successor is setting the stage for a “civil war”. Moreover, the proposed provision now creates discrimination against independent presidential candidates. More importantly, is this no Zanu PF way of ensuring that an individual vice president from a minority tribe in Zimbabwe can never become president. I want to conclude from where I started with questions, what is law, when is a law not a law? A law is not a law when it based on undefined parameters and if it seeks to impose hatred and phobia. The Zanu PF counter draft does all these things and must be rejected and dismissed with the contempt it deserves.