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 email@example.com