Mugabe and the COPAC Constitution: to amend or to implement?
It is now seven (7) months since the promulgation of the new constitution of Zimbabwe yet Parliament has not received new bills to begin to realign legislation with the new supreme law of the land. No meaningful administrative have arrangements put in place to allow the application of the new document. For example, the bill of rights in the new constitution gives rights to agricultural land to everyone. This means that the state needs to amend title deed forms and Land Leases being given under the new farmers to reflect names of both spouses in fulfilment of this right. There is also need to give a directive to the traditional village heads to allocate land to women in their own right since this has become constitutional. All these simple administrative arrangements have not been carried out to begin the process of implementing the new constitution.
The lived reality of Zimbabwean citizens has not improved in line with the progressive provisions in the new constitution. Zimbabweans are slowly coming to a realisation that the battle for constitutional rights was not won in the referendum; rather they have to struggle once again for the implementation of the supreme laws of the land.
Promulgated on the 22nd of May 2013 after three years of uneasy, contested but ultimately successful efforts by a Constitution Select Committee (COPAC), whose members were drawn from all the major political parties, this Constitution embodies the true spirit of a consensus settlement. COPAC had three co-chairpersons, one from each signatory-party to the Global Political Agreement (GPA) and most of the committees had three people in each position, as each political party tried to safeguard its interests. It was nothing short of a miracle that a document was produced from such a diversity of partners who had different values and interests. The COPAC constitution has far more credibility than the Lancaster House Constitution, which was a heavy compromise between the leaders of the guerrilla movement and the retreating colonial masters.
However, a true test of any constitution is its effective implementation for the benefit of the majority of citizens. Implementation of the COPAC constitution lies heavily in the hands of ZANU PF who—with 197 out of 270 seats and 37 out of 80 seats in the House of Assembly and Senate respectively—now boast of a two thirds majority in Parliament. The Constitution was designed to come into life in two stages—with some provisions such as those relating to citizenship, bill of rights, elections, etc, coming into force immediately upon promulgation and others, such as those setting up constitutional commissions, and devolution of government powers only progressively so. The Constitutional Court, for instance will not be fully constituted before at least seven years meaning that currently ZANU PF dominated Supreme Court retains jurisdiction over these matters.
While provisions relating to elections, the President, Parliament and the Zimbabwe Election Commission (ZEC) were given effect just before the elections, the implementation of other provisions such as the bill of rights and many other deffered provisions now seem to be the least of ZANU PF’s priorities, as conservative elements within the Party are instead advocating for amendments to this Constitution. Jabulani Sibanda of the Zimbabwe National Liberation War Veterans Association, for instance, argues that ZANU PF has a duty and a responsibility to amend the new Constitution to reflect genuine values of the nation. These, in his view, include the negation of gay rights, which they consider un-African, and the promotion of the values of the liberation struggle: pan-Africanism as well as independence from neo-colonialism. Others, such as Bishop Trevor Manhanga, argue that the Constitution was only a compromise document which ZANU PF would never have agreed to had it not been for the COPAC process. Accordingly, the party was now free to use its new majority in Parliament to amend it as it sees fit.
To some legal analysts, this development comes as no surprise. Mr Munyaradzi Gwisai, a law lecturer at the University of Zimbabwe and a member of the International Socialist Organisation, argues that ZANU PF only engaged in the constitution making process for political expediency since they needed the document to hold national elections. In an attempt to allay public concerns on the issue, the outgoing Minister of Legal and Parliamentary Affairs, Hon Patrick Chinamasa, announced that “any changes to the new constitution will be done in close consultation with the people who are the owners of the new constitution”. He tried to assure citizens that ZANU PF had no plans to use its two thirds majority in parliament to amend the new constitution. Yet, the reality, according to Hon Jessie Majome of MDC-T, is that ZANU PF will stop at nothing to undo ‘undesirable’ sections of the Constitution which they reluctantly agreed to during the COPAC process. These include, for instance, the devolution of power, the establishment of a national prosecuting authority, the National Peace and Reconciliation Commission, as well as the provision barring the Army from participating in politics. This perception of the Constitution as something to be tailored to suit ZANU PF's interests rather than a binding national framework, explains the cavalier attitude of the government towards the implementation process, which, according to Dr Gwisai, has no earmarked budget yet.
Others, such as Dr Cephas Zinhumwe, the Executive Director of the National Association of Non-Governmental Organisations (NANGO), relying on a recent announcement by the Government that more than 200 laws in the country need to be realigned with the new constitution, argue that there is political will to implement the Constitution and that the only obstacle has been the Government’s focus since the election on a more urgent challenge — stabilising the economy. Assuming this is right, there are still reasons to doubt the scope of the Government’s will in ensuring full implementation, especially as the few lame attempts thus far attempted have even been contrary to the Constitution. Such is the case with the newly constituted 10-member Judicial Services Commission which comprises only 2 women, contrary to section 17 of the new Constitution which commits the government to gender balance in appointments to all government institutions.
Delays in setting up the institutions of accountability and other administrative measures as provided by the sections 194 and 195 of the Constitution has only reinforced the culture of corruption and impunity in the public service. For instance, it was recently discovered that the director of a cash-strapped parastatal, the Public Services Medical Aid Society, was getting a basic salary of US$230 000.00 per month. Likewise, the Executive Director of Zimbabwe Televisions was also getting a basic salary of US$48 000.00 and huge allowances even as the institution was going almost bankrupt. As the constitutionally mandated administrative measures necessary to deal with such situations are non-existent, the individuals concerned remain insulated from prosecution.
The Government may have announced plans to align all laws to the new constitution but with apparent no sense of urgency on its part to do so, it is incumbent on political forces, civil society, and the public, to bring pressure on the government to do so. The MDC-T, according to Hon. Majome, has moved a motion in the National Assembly and the Senate to push that the constitution be made a reality for citizens. However, as both Mr Gwisai and Dr. Zinhumwe argue, there is still need for greater mobilization, both on the political and civic society front, not only to hold the Government accountable to its promises on implementation, but also to prevent any constitutional reversals.
So much has happened since the promulgation of the new constitution, such as the elections and ZANU PF’s resounding bounce back. What is certain, however, is that the constitutional debate has lost steam and most Zimbabweans seem resigned as ZANU PF silently prepares its assault on the Constitution. Yet, as they wake up to the everyday struggle for survival, they must remember that a new Constitution is not an end in itself but rather, a means to the realization of the promise that it offers.
 Netsai Mushonga is a gender, peace building and human rights consultant