Draft Constitution Fails to Protect Rights

Biti lost the plot on draft constitution

September 28, 2012 in Letters

WITH all due respect to Finance Minister Tendai Biti, I wholly disagree with his interpretation of Chapter 16 of the draft constitution.  It appears that both he and Constitution Select Committee (Copac) co-chairperson Douglas Mwonzora have fallen into the trap of selective quotation and do not look at the practical effect of both Section 4.29 and Chapter 16 of the draft.

Biti waxes eloquent in saying “the land reform programme is now democratised that all Zimbabweans, irrespective of race, tribe or colour, can be beneficiaries of the same”.  He goes further saying that:  “The constitution now allows the restoration of a private property market in Zimbabwe that will transform current agricultural land from a dead into a live asset.”

He takes this from Section 16.2 (b) of the Copac Draft Constitution which states that: “subject to section 4.29, every citizen of Zimbabwe has a right to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of agricultural land regardless of his or her race or colour”. This is an excellent provision, if one chooses to ignore the first four words of it.

The provision as read with section 4.29, however, does not make any changes to the land reform programme as it exists today. Nothing in the present constitution or the various enabling acts prevents any person of any race or colour from purchasing, leasing, or even acquiring an offer letter for agricultural land –– although as everyone is aware, this has hardly ever happened in practice due to the racial discrimination still in place.

The reality is that this provision only applies to land that has not been acquired by the state and section 16.3 of the Copac draft reiterates that:

“(1) All agricultural land which
(a) was itemised in Schedule 7 to the former Constitution;  or
(b)   before the effective date, was identified in terms of section 16B(2)(a)(ii) or (iii) of the former Constitution;
continues to be vested in the State.”

Section 4.29 (2) of the Copac draft, allows for the continuing acquisition of land without compensation and with no right to challenge it in a court or raise the argument that it is discriminatory –– notwithstanding the fact that the officially stated purpose of land reform, that of correcting the racial imbalance in ownership of land, was met a number of years ago.

So the reality is that nothing has changed. Chapter 16 does not afford anyone new rights or even provide people with protection of their existing rights.  All it does is make a political statement which looks good on paper but has no practical positive effect.

In fact, it polarises Zimbabweans in terms of their race and background in that it affords “indigenous” farmers greater rights to compensation in terms of section 16.8 (1). As has been seen in our Indigenisation and Economic Empowerment Act [Chapter 14:33], an “indigenous” person is limited to:

“Any person who, before the 18th April, 1980, was disadvantaged by unfair discrimination on the grounds of his or her race, and any descendant of such person, and includes any company, association, syndicate or partnership of which indigenous Zimbabweans form the majority of the members or hold the controlling interest”.

This does not include people who are “white” –– although it may include people who were not born in Zimbabwe but who, if they were, would have been “disadvantaged”. So, for example, someone of Chinese descent may be considered “indigenous” despite not being born in Zimbabwe whereas a “white” Zimbabwean –– born in Zimbabwe –– would not be “indigenous”.

I can only agree with Biti in saying that “the Copac draft is not the best constitution Zimbabweans could have written”.

I have to go further than that and state that it is not the best constitution that those “who have spent all their life fighting for a new order in Zimbabwe” should support, let alone promote.

I cannot believe that sacrificing fundamental principles and allowing the continuation of theft and racial discrimination against international law, against the Sadc Treaty, against international judgments, and against every human rights convention ever signed will help in the feeding and rebuilding of Zimbabwe in any way.

For how long is the truth going to remain a casualty in this process?

Ben Freeth