DEMOCRATISATION AND CONSTITUTIONALISM THROUGH CONSTITUTION-MAKING PROCESS IN ZIMBABWE

The cries and aspirations of Zimbabweans at this juncture is to see the country becoming more and more democratic, that is, one in which the sovereign power resides in and exercised by the whole body of free citizens directly or indirectly through a system of representation. In order to achieve this, there has to be a conducive legal and institutional framework, that allows, ensures and guarantees that there is true representation, regular free and fair elections, freedom of expression both before and after, freedom of the people to participate in the governing process, rule of law, respect for human security and human rights, transparency of government, accountability, separation of powers and political tolerance. These essential elements have to be provided for and the Constitution is the rightful place to have these properly entrenched. Therefore, a democratic Constitution is the one that truly enshrines these principles and the extent and content of that particular Constitution should emanate from the people themselves.

We leave in an era of Constitution-making. It must be underscored that writing a Constitution is part of the many peace processes as history from other jurisdictions at varying historical episodes clearly demonstrates. New nations and radically new regimes that seek democratic credentials make writing a Constitution a priority. It is, therefore, generally agreed nowadays that the process of making a Constitution is as important as the final document itself. Put differently, it can be said that any Constitution is as good or as bad as the process through which it is made. The Zimbabwean High Court Judge, Ben Hlatswayo succinctly summarized the point thus, “modern ideas on Constitution making place emphasis on popular participation and widespread consultation in order to produce a Constitution that will endure and which the people feel is truly their own” The idea of political leaders bringing a Constitution to the people has been thrown into the dustbin of history. Thus the days of leaders evoking the image of the biblical Moses coming down from the mountain with the Ten Commandments carved in the stone for the benefit of the children of Israel is long gone! Today, people do not want Constitutions privately negotiated by “people’s leaders” and imposed on the rest of society. People want to participate actively in the making of their own supreme law. As part of entrenching peace democracy and human security the Zimbabwean government, therefore, needs to take this issue seriously as the Constitution making process is a basis for a consensus in nation building.

It must be noted that genuine public participation requires social inclusion, personal security and freedom of speech and assembly. A strong civil society, civic education and good channels of communication between all levels of society facilitate this process. Only considerable commitment of time and resources will make genuine public participation possible. The Constitution of new constitutionalism is a conversation conducted by all concerned, open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable. Indeed, it is in such an environment of conversational constitutionalism that the issue of a right to participate in making a Constitution arose.

A democratic Constitution is no longer simply one that establishes democratic governance! It is also a Constitution that is made in a democratic process. There is thus a moral claim to participation according to the norms of democracy. A claim of necessity for participation is based on the belief that without the general sense of “ownership” that comes from sharing authorship, today’s public will not understand, respect, support and live within the constraints of constitutional government. In other words, participatory Constitution making has become a criterion of a legitimate process and therefore the norms of democratic procedure, transparency and accountability that are applied to daily political decision making are now also demanded for constitutional deliberation.

A right to public participation in Constitution making creates a stronger ground on which to stand. Major international human rights instruments and national Constitutions do grant a general right to democratic participation, although one that is lacking legal teeth and effective enforcement. The right to participate in Constitution making might logically be derived from the general meaning of “democratic participation” in the UN Declaration on Human Rights of 1948 in Article 21 and especially Article 25 of the International Covenant on Civil and Political Rights. Article 25 establishes a right to participate in public affairs, to vote and to have access to public service. Regional and transnational declarations such as the African Charter on Human and Peoples Rights (1981, Article 13.1), the Asian Charter (1998, Article 5.2) and the Inter-American Democratic Charter (2001) all declare a general right to political participation. This therefore underscores the point that it is now universally accepted that a democratic Constitution-making process is critical to the strength, acceptability and legitimacy of the final product.

As Zimbabwe has just embarked on journey of negotiating and promulgating the supreme law of the land it is imperative that the inclusive government take cognizant of the right of the people to decide what they really want. The SADC Guidelines on Constitutionalism and Constitution Making of 2005 encapsulates the point that the process must be people driven. It is the duty of the incumbent government to facilitate the process without seeking to control and dominate the exercise. The composition and functioning of the Constitution making bodies should aim at maximum inclusivity and the broadest informed participation.

Public participation in the whole exercise must be facilitated by concerted efforts at raising public awareness (just as what obtains in pre-election times), encouraging and assisting the public to have its views registered and fully engaging the public in an open and free atmosphere and also taking into account the needs of other special interests groups like children and those with disabilities. Experts can assist by ensuring that the views of the public are faithfully reflected during the whole process while jealously guarding against real temptation of imposing their own views under the guise of “technical input”.

It must not be underplayed that the task of writing a Constitution is a mammoth, arduous and complex task. But it is a necessary and important process in achieving the dreams of Uhuru. This is a golden and classic opportunity for the Zimbabwean society, both local and Diaspora, to assert their democratic right as part of peace building and democratization. Any attempts by the politicians of the day to hijack the process must be jealously guarded against.

Innocent Mawire is a Human Rights Lawyer and writes for Peace and Justice Support Forum. He also co-authors International Law Observer (www.internationallawobserver.eu). He can be contacted at i_mawire@yahoo.com

Building True, Durable and Sustainable Peace in Zimbabwe.

The challenge confronting Zimbabwe today since the signing of the Global Political Agreement that gave birth to the inclusive government and the political transitional discourse obtaining in the country today is how to extricate the nation from a past that continues to weigh down and haunt the entire population. Many organisations and individuals in this country have made a call that to leave the past alone is the best possible panacea and the only way to avoid a delicate process of transition or to avoid a reversion to the horrendous past that was characterised by extensive repression and gross violations of human rights and humanitarian law.

As the political transition is unfolding in the country after a decade period of violence, our society is now confronted with a moribund legacy of abuse, which requires concerted efforts of all the stakeholders to map the best way to democratise the country and build sustainable peace. Questions are being raised with regards how best our nation can be healed. It is our view that society has to come together and deliberate on these issues. In order to promote justice, peace and reconciliation, government officials and non-governmental advocates alike should consider both judicial and non-judicial responses to violations of international human rights law and international humanitarian law that occurred during the preceding years. Such responses, inter alia, include prosecuting individual perpetrators, offering reparations to victims of state sponsored violence, establishing truth seeking initiatives about past abuses, reforming institutions like the police and the courts and also lustration, that is, removing perpetrators from positions of power.

It cannot be assailed that transitional justice is an essential ingredient for any society emerging from an abusive and repressive past tainted with a horrific and brutal human rights record to a democratic country imbued with principles that guarantee human rights respect. Surely victims and survivors need to know the truth as a means of bringing closure to their suffering.

The Oxford-based historian, Timothy Garton Ash, once reminded us that while victims are cursed by a good memory, perpetrators are blessed by an ability to forget. Thus the failure by the government to acknowledge the horrendous human rights violations it visited upon the Ndebele ethnic group in the early 1980s has to date increased the tensions and rift in our society. To date, many people in Matebeleland and Midlands provinces still lament that the then ZANU PF government has never done justice to them. Justice demands that perpetrators be brought to account for their heinous misdeeds in order to bring a measure of closure on the past and to be a kind deterrent that is needed to avoid the repeat of such sad chapters in the history of our country. Prosecution of those who violate people’s rights with impunity is a minimum ingredient for the rule of law and an essential requirement for the protection of human rights.

It is important that our country has, at this juncture, been given the opportunity to lay a firm and durable foundation for building sustainable peace and a culture of human rights respect. The transitional period has paved the way for the Constitution-making process- the much-venerated issue anticipated by the wide section of the society since independence from the colonial yoke. It must be underlined that the Constitution to be born out of this process must provide a historic bridge between the past of a deeply divided society, characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all Zimbabweans regardless of political affiliation. South Africa is a classic example of a country that used a similar golden opportunity to instigate a smooth transition from the apartheid regime to a constitutional democracy that is obtaining today in that country. As a logical corollary, the lessons learnt from South Africa must also guide and inform us in our Constitution-making process but also taking into account our own national values and ethos.

The pursuit of national unity, the well being of all Zimbabweans and durable peace requires reconciliation amongst the people and reconstruction of society, which hitherto, has been damaged by the repressive and oppressive environment in the preceding years. Bust such reconciliation can only be attained, not by sweeping the past atrocious history under the carpet as mere aberration but by pursuing various profound processes of transitional justice mechanisms.

Undeniably, the adoption of a people driven constitution (the content of which must be agreed upon by all citizens) lays the secure foundation for all the people of Zimbabwe to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles and a legacy of hatred, fear, guilt and revenge. These challenges should now be addressed on the basis that there is need for understanding but not for vengeance, a need for reparation and not for retaliation, a need for ubuntu and not for tyrannical victimisation.

This invariably is a delicate process which essentially means that the Constitution as a supreme national document founded on the will and aspirations of Zimbabweans seeking to close a sad chapter and opening a new chapter in the history of our nation, must be imbued with the values, principles and aspirations that identify with Zimbabweans in accordance with international human rights norms. It is against this background then that Zimbabweans can enjoy durable peace established by the rule of law and supported by strong accountability systems.

Each and every one of us, individually and institutionally, has a responsibility therefore to establish processes for consensus building of our nation and to facilitate transitional justice and reconciliation in our nation that has been (and still is) extremely polarised and antagonised on political and ethnic lines to the detriment of international human rights norms and standards. In these we firmly believe that a prosperous and democratic Zimbabwe, where all people across the political divide and from different ethnic backgrounds can live peacefully and in harmony with each other, can be realised if the current transitional process is handled competently.

Innocent Mawire is the founding Director for the Peace and Justice Support Forum (Zimbabwe)

Zimbabwe: Engaging the Inclusive Government

This is the title of the report from the International Crisis Group detailing the positive signs emerging in the socio-economic and political set up in Zimbabwe since the signing of the Global Political Agreement. It is really encouraging to note that the international organisation has a positive attitude and hope for the new administration. The detailed report can be read here. Indeed what is now needed is for the international community to rally behind Zimbabwe and support it in all possible ways.

Sudanese President’s Indictment: Justice or Neo-Colonialism?

On the 4th of March 2009, after seven months of deliberation, the International Criminal Court charged President Omar Hassan al-Bashir of Sudan with war crimes and crimes against humanity in the violence that has engulfed the Darfur region in recent years. But he escaped the charge on genocide at least for now, as the ICC has made it clear that the charges could also be amended to include genocide if relevant evidence subsequently comes to light. This is remarkable because it is the fisrt time the court has sought the arrest of a sitting head of state since it opened in 2002. Reactions have been characterized by outrage, apprehension, and celebration. To his immediate supporters, this reeks of neocolonialism in which the insufferably haughty and hypocritical Western powers target Africa and seek to humiliate its leaders. Thousands of furious demonstrators took to the streets of Khartoum and attacked the ICC, Western countries, the UN, and chanted their support and love for their beleaguered president. Larger demonstrations are expected in the days to come.

Some concede that President al-Bashir may be culpable, but worry that this will destabilize the country and make the situation in Darfur worse. It might even re-stoke the older north-south conflict whose settlement under the the Comprehensive Peace Agreement adopted on December 31, 2004 is quite fragile. They prefer peace to justice. This purported trade off is the basis of some of the opposition to the court's action in the African Union and the Arab League. In the words of the Chairperson of the AU Executive Council in his address to the Council on January 29, 2009: "The greatest challenge facing the peace process in Darfur is the request made by the Chief Prosecutor of the ICC on the 14th June 2008, for the indictment of the President of the Republic of the Sudan, General Omar al Bashir. While in principle the African Union has no objection to bringing, perpetrators of human rights violations to justice, the reality remains that President al-Bashir remains a critical stakeholder in the search for peace in Darfur. Accepting the request for the issuance of a warrant to arrest [him] at this time will most likely derail the peace process in the Sudan." At the end of its recent summit held in Addis Ababa at the beginning of last month, the Assembly of the AU endorsed the call made months earlier by the AU's Peace and Security Council for the UN Security Council to "defer the process initiated by the ICC."

The need to defer justice in pursuit of peace also informs opinions and concerns among some relief agencies. In the words of Franklin Graham, president and chief executive of Samaritan's Purse and the Billy Graham Evangelistic Association, writing in The New York Times: "I want to see justice served, but my desire for peace in Sudan is stronger. Mr. Bashir, accused of genocide and crimes against humanity, is hardly an ideal peacemaker. But given all the warring factions in Sudan, there is no guarantee that his replacement would be better....Now, his arrest could threaten the south's elections and referendum, and hurl the country back into civil war. His removal could also spur retaliation by Bashir loyalists and other forces against civilians, United Nations peacekeepers or international aid workers."

Such vacillations cut no ice with human rights activists who welcomed the indictment of President al-Bashir last June and the issue of the arrest warrant on 4 March 2009. There have been television and newspaper pictures of demonstrators celebrating outside Sudanese embassies in various countries. For them peace and justice are inseparable, the perpetrators of impunity should not be absolved of their crimes by fears of more impunity from them. This merely serves to perpetuate the cycle of impunity by allowing the architects of war crimes and crimes against humanity to go scot-free. These sentiments are expressed with characteristic moral clarity by emeritus Archbishop Desmond Tutu, in an impassioned an op-ed essay entitled "Will Africa Let Sudan Off the Hook?", in which he argued that the issuance of the arrest warrant "presents a stark choice for African leaders - are they on the side of justice or on the side of injustice? Are they on the side of the victim or the oppressor? The choice is clear but the answer so far from many African leaders has been shameful. Because the victims in Sudan are African, African leaders should be the staunchest supporters of efforts to see perpetrators brought to account. Yet rather than stand by those who have suffered in Darfur, African leaders have so far rallied behind the man responsible for turning that corner of Africa into a graveyard."

He eloquently dismissed charges that the ICC and the indictment of President Bashir merely is nothing but legal cover for western imperialist machinations. "I regret that the charges against President al-Bashir are being used to stir up the sentiment that the justice system - and in particular, the international court - is biased against Africa. Justice is in the interest of victims, and the victims of these crimes are African. To imply that the prosecution is a plot by the West is demeaning to Africans and understates the commitment to justice we have seen across the continent. It's worth remembering that more than 20 African countries were among the founders of the International Criminal Court, and of the 108 nations that joined the court, 30 are in Africa." I wholeheartedly endorse the views of the venerable archbishop.

For human rights advocates and campaigners who have spent the last few years calling for the indictment of al-Bashir and his accomplices at the highest level of the Sudanese political establishment, the warnings about the possibility of a collapse of the peace process and a reversion to conflict in the south of the country are nothing but a red herring. These warnings are reminders of the old arguments that have been bandied about when nations have had to make choices between holding perpetrators of gross violations of human rights accountable and pursuing peace and national reconciliation at all costs. Such calls have been part of the debates about how to rebuild societies in post-conflict situations, from post-apartheid South Africa and East Timor to Liberia and Sierra Leone. Aspects of these arguments have been echoed in more recent times in both Kenya and Zimbabwe in the wake of the post-election violence in both countries and the soul-searching that has gone on about the underlying issue of decades-old violations of human rights, especially in the latter: should the imperative of securing peace and national reconciliation trump the need to punish impunity and bring justice to victims of egregious human rights violations? For many human rights campaigners, this is a false choice. Both can be achieved, if the right conditions and mechanisms are agreed and put in place. Peace without accountability for impunity would be a false and fragile peace.

Moreover, for supporters of the emerging international criminal justice system and human rights advocates alike, allowing al-Bashir to escape the ICC's indictment on the grounds of political expediency would set a bad precedent that his supporters in the AU and the Arab League may celebrate but the wider world may come to regret. Such a development would compromise the authority of the new international tribunal, weaken attempts at strengthening human rights protection around the globe, derogate from the global effort to punish impunity while giving succor and hope to downtrodden and vulnerable populations in places like Darfur and beyond. It would also give legitimacy to the false claim that the ICC is part of a Western-led neo-colonialist plot aimed at targeting and harassing African political leaders and their countries while leaving other alleged perpetrators of violations of human rights, genocide, war crimes and crimes against humanity untouched. Proponents of that claim conveniently fail to point out that three of the four cases currently pending before the court (Central African Republic, Democratic Republic of Congo and Uganda) were initiated at the request of the African governments themselves, and that the indictment of Bashir is not the outcome of a mindless personal campaign by the ICC prosecutor, as it is sometimes presented in the al-Bashir-friendly media, but a result of a request for investigation into the alleged violations in the Darfur region by the United Nation's Security Council.

The indictment of President Omar al-Bashir and the issuance of a warrant of arrest by the ICC marks an important milestone in the quest for justice for the people of Sudan as a whole, and not only the immediate victims of the violations in Darfur. To characterize this as evidence of neo-colonialism is to invoke a dubious, albeit popular, canard. Africa which has suffered more than most from human rights violations at the hands of outsiders and its own vicious leaders should be at the forefront of establishing a global culture that promotes and protects human rights, peace, and security. Playing such a role enables Africa to criticize others with integrity. I am sure many Africans would have wished an ICC existed in the days of slavery and colonialism to bring the perpetrators of those crimes to justice. I also think many look forward to bringing other contemporary perpetartors of war crimes, crimes against humanity, and genocide ensconced in some of the world's most powerful countries to justice by the ICC. They include the engineers of the devastating war in Iraq, provoked and waged under utterly false pretences, as well as those who orchestrate the recurrent vicious wars and humanitarian disasters in Palestine. We will be in a stronger position in the struggle to create a more humane world if we do not exonerate our own political criminals and serial human rights abusers. The causes for peace, security, and justice are indeed interrelated, indivisible, interdependent, and universal.

Waiting for the Mugabe-Tsvangirai Dividend: The future of Government of National Unity in Zimbabwe.

Zimbabwe has been delirious with excitement and great expectations following the recent formation of a government of national unity between the major political parties-ZANU PF and the two MDC formations- after almost a decade of sharp antagonism. But the celebrations are now giving way to the hard realities of political normalcy. Many observers from within and without Zimbabwe wonder what the unity government will bring to Zimbabweans beyond the hope and pride, whether there will be any positive significant changes in the socio-economic and political conditions in the country.

For many Zimbabweans, the unity government is a milestone because it has forced Zimbabweans to graduate from mere political jargon, wounded pride, emotional shock and trauma into rationally confronting the details of the problems that were (and still are) bedeviling the country for the past decade and also what they actually did to each other in the aftermath of the 29 March 2008 harmonised elections running past the second elections of 27 June 2008.

While it is laudable that these conflicting political parties have finally agreed to form a unity government, the devil is in the details, in the implementation. The rhetoric is compromised by the weight of history and the inherent problems of the security sector, the persistent incongruence of MDC and ZANU PF interests. The Mugabe-Tsvangirai administration would go a long way in transforming the socio-economic and political environment in Zimbabwe if the following is agenda is adopted:

First the newly formed government needs to set up a Truth, Justice and Reconciliation Commission (TRC) to look into and investigate the various gross human rights violations, torture, rape and the murders that occurred during the past three decades and which intensified in the last ten years. The recent wave of violent conflicts that occurred in some parts of the country, in Bindura and Mutoko districts, notwithstanding the calls for forgiveness by the new unity government indicates that there are inherent and deep rooted problems that require the need to set up TRC to look into the issues and bring to book all the perpetrators of these crimes and where possible prosecutions to be initiated. These conflicts clearly indicate that if this transition process is not handled properly, the country can easily degenerate into conflict due to the lingering problems carried on into the new government and unresolved and these may set new sources for future conflicts.

Secondly, the overhaul of all government structures and systems has to be implemented as a priority. It cannot be assailed that ZANU PF has permeated all segments of government institutions to the extent that it is now difficult to draw a demarcation between government and ZANU PF. Consequently it becomes difficult for the newly formed government to work properly, effectively and efficiently outside party politics.

Thirdly, there is need to look into security sector reform of all public institutions. The Mugabe administration was, during the last decade, preoccupied with militarisation of government institutions. Recall that at one time the Attorney General’s Office was hit with a mass exodus of personnel after it emerged that the Mugabe government was filling all high offices with retired personnel much to the chagrin of many civilian officers. This is the position that is still obtaining in many government departments. This also has a negative impact on the functioning of the new unity government hence the need to revamp these institutions so that they become public service oriented. It must be noted that militarisation has been the bane of African politics in general and Zimbabwe in particular and development and policies predicated on more militarisation, whatever justification, are counterproductive.

Fourthly, the government must embark on educational programmes to educate security sectors, i.e., the police, army and intelligence personnel of their proper roles and functions in democratic regimes and especially on issues relating to human rights respect. This follows as a logical corollary from the banal and trite fact that a litany of the human rights atrocities in Zimbabwe especially in the last decade were instigated at the hands of the security forces.

Fifthly, the constitution making process ought to be put into motion as a matter of urgency. The debate on this subject has been on the wall for quite some time now and it is the aspiration of many Zimbabweans that for Zimbabwe to graduate into a full democracy, there is need for a constitution that guarantees the civil liberties and human rights of all Zimbabweans-some form of document that identifies with their aspirations and not the archaic, anachronistic, obsolete and transitional Lancaster House Transitional document. A home-grown Constitution is therefore a priority.

These are some of the issues that the new government should take cognisant of if it were to make a positive impact on the political landscape in Zimbabwe. However, this list is by no means exhaustive as there are so many important other areas that need to be addressed.