Opinion Piece: Failings of Draft Constitution


Commentator, Zimbabwe

30 September 2012

Zimbabwe’s draft Constitution will entrench failed ideology

By definition the Constitution comprises the principles with which the State is governed. The outreach programme – the questions and answers and the thematic committees - were largely manipulated and do not represent the peoples wishes. 

Zimbabwe’s current draft Constitution is an odious piece of legislation which entrenches an apartheid system.

While purporting to be non-discriminatory in its introduction, further examination of individual clauses exposes a blatantly racist and exclusive mandate. The minority white population is excluded from equal participation in the economy and is heavily discriminated against.

Indeed, should this sector of the population contest future discrimination based on race, the Constitutional Court or judiciary will in terms of this Constitution have no option but to rule against them.

Thirty-two years post independence, and with a hugely diminished white population, this minority group is still prejudiced in favour of “previously marginalised groups”.

The current Indigenisation Act, which in essence forbids a white human being from owning a majority share holding in a company, is shocking and is base apartheid.

The current US$500,000 threshold can, and in all probability will be reduced to US$1 at the stroke of a pen, as in the case of the mining sector.

The government’s attempt to soften this racist Act by referring in the controlled media to “foreign-owned companies”, is dishonest and misleading. The Draft Constitution supports this racist exclusion through its constant referral to “rectifying the injustices of the past”.

It is impossible to support such a repugnant document which is basically prejudiced, unreasonable and undemocratic.

There is an assertion that should the Movement for Democratic Change (MDC) win the election, then the Constitution would be amended. This is an intrinsically misleading and dishonest.

A Constitution cannot or should not simply be amended at the whims of the government of the day. This has been the problem with the current regime.

Indeed, should the MDC form a new government, the ZANU PF opposition, which in all likelihood would have a significant representation, will block all and any attempt to alter the Constitution – as will the judiciary, which is now almost totally compromised and perverted.

Should the judiciary be transformed to a non-political organ, it would still have the binding responsibility to protect the Constitution from arbitrary amendments.

Further to this, any such attempt to tamper with the Constitution would provide the military with a plausible excuse to take drastic measures “in defence of the Constitution”.

It follows that it is unlikely that the principals of the new Constitution will be altered in any significant manner over the short to medium term.

This draft legislation is largely retrogressive and backward thinking, referring constantly to the ideas of the liberation struggle and to previously disadvantaged groups.

Thirty-two years after independence, and due largely to mismanagement, corruption, unabated violence and State-sponsored racism, Zimbabwe is now a failed state.

The Draft Constitution continues this ideology and will severely hamper the necessary economic, social and political recovery.

In the modern world, such obnoxious and archaic thought processes as enunciated in this disgusting document are unthinkable. The Constitution of a country is the supreme law, binding and guiding all other statute or civil laws.

It directs the government of the day and should protect the citizens from unfair interference or discrimination. This draft does not achieve any of the above and only entrenches failed and racist ideas.

Zimbabwe’s recovery, both economic and social, is dependent on free and fair elections.  Thereafter, there must be no looking back, except to learn from one’s mistakes, so as to never make them again.

The Constitution, future legislation and the role of the government must be non-discriminatory and all-inclusive. It should enhance and protect the role of civil society.

Property and individual rights must similarly be protected, thereby producing an enabling environment for reconstruction and development. The norms of International law must be respected and adhered to.

This draft Constitution is not a “home grown” representation of the people’s wishes. It is an outdated, racist and non-productive document which will prevent national healing and reconciliation, and will certainly prevent the necessary reconstruction of a fractured economy and civil society.

A Constitution must protect the rights and property of ALL its citizens, without fear or favour. It is the supreme law of the land which governs, restricts, and enables the people of the country and the government of the day.

The current Constitution has been completely perverted by the State, supported by a largely compromised and subservient judiciary. The new Constitution will simply embed this failed ideology, thereby greatly restricting meaningful change and reconstruction.

If the principal parties cannot agree on the principles of an acceptable new Constitution, then a stale-mate must be declared. We cannot compromise on the principles of this all important document.

All efforts should now go towards electoral reforms which should ensure a genuinely free and fair election.

This Constitutional-making exercise, although part of the conditions of the Government of National Unity (GNU), has been exhausting and has been hijacked to fulfill political agendas.

It has been time-consuming and has served to detract from the real issues of ensuring that the upcoming elections truly represent the wishes of the electorate.

The draft Constitution will entrench failed ideology while restricting the necessary aforementioned political and social change. It will most certainly serve to haunt future generations to come.


Submitted by:

Commentator – Zimbabwe
Name withheld to protect author’s identity