Maravi

(TALKZIMBABWE) Kariba Draft still relevant

Kariba Draft still relevant
Opinion by Itayi Garande
Tue, 11 Aug 2009 01:53:00 +0000

THE South African constitution-making experience is viewed as a remarkable and exemplary process of constitution-making, signaling not only the formal transition from apartheid to constitutional democracy, but also the peaceful end to what was a very violent struggle for a new form of governance.

Zimbabwe can indeed learn from that process without compromising its independence or alienating masses from the constitution-making process.

A reference document like the Kariba Draft, could be adopted as a basis for that process. Afterall it was drafted by the parties that represent nearly 100% of the electorate.

Zimbabwe could indeed draw from the South African experience.

Through a constitutional assembly, the major opposing sides came together in South Africa to draft their new constitution, hammering out differences that all hoped would usher in a brighter future. Wide public consultation took place, enhancing the document’s legitimacy.

Many people were shocked on September 6, 1996, when South Africa’s Constitutional Court rejected a proposed draft of the constitution.

The court had been charged with certifying that the draft constitution was in conformity with thirty-four “constitutional principles” that had been laid out in South Africa’s 1994 Interim Constitution. This certification provided a check on the political process of drafting the constitution, to assure that it met with the original basic principles that the opposing sides had agreed to before beginning constitutional negotiations.

After the Constitutional Court identified the draft’s deficiencies, the constitutional assembly reconvened and amended their original draft.

This amended version was later certified by the Court, and came into force on February 7, 1997.

South Africa’s use of constitutional principles is the most robust example of how “immutable principles” can be used as a check on democracy in general, and the politics of drafting a constitution in particular.

Zimbabwe could use such immutable principles; but that is not to say the Kariba Draft is abandoned. The Kariba Draft is a robust document that could help inform the whole process in Zimbabwe.

The National Constitutional Assembly (NCA) knows very well that the process of drafting a constitution should involve representatives of the people. Consultation has to be carried out at the grassroots level, but a reference document is an important piece in that process; otherwise the whole process will be mired in confusion.

As a constitutional lawyer, NCA's Dr Lovemore Madhuku knows very well that constitutional principles (immutable principles) are not thwarted by mere reference to the Kariba Draft. In fact, that document serves as a check on the political process that is imposed by the same political and non-political actors that will then be bound by it.

The Kariba Draft is simply a document that gives rise to a constitution-making (or amending) process. Any other document could have served the same purpose, e.g. a political agreement like the Global Political Agreement, an interim constitution, or otherwise.

It is important to note that some constitutions that are hailed as the best in the world were formulated in not so democratic ways; although this is not an argument against involvement of the electorate in that process.

When the United States drafted its constitution in 1789, the process that created that Constitution was clearly a very elite-driven enterprise, focusing far more on stability than on such principles as human rights, or even participatory democracy.

It is debatable whether the United States would have produced the same outcome, had the process been different.

Madhuku's new constitutionalism argument, which is based on the premise that for a constitution to be legitimate, it must have the support of the people has some utility, but it does not mean that the Kariba Draft will thwartle that process.

Madhuku borrows from the idea that in order to achieve legitimacy, the new constitution should embrace the ideas of democracy, ensuring that the populace is involved with the process of drafting the constitution. But that is exactly what the Kariba Draft is all about. Representatives were elected; they came up with a "draft constitution", not a definitive constitution. That is what is now being amended. It is a mere reference document.

All the principles of new constitutionalism that the NCA, ZCTU and other civic society groups are fighting for are embraced in the current process; which commenced with public education.

The Eritrean experience where illiteracy was high could be used as an example. People were educated on the constitution-making process using a draft constitution.

The education and consultation role was done by some form of a constitutional commission, which called for proposed constitutional changes to the original draft, like the Kariba Draft, to be submitted to them. All the material collected was then combined, in the form of a “working document,” and presented to another body charged with creating the constitution - a constitutional assembly.

Constitutional principles (or immutable principles), in the case of Zimbabwe could then be employed to guarantee the legitimacy of the final draft.

The Court could be involved at the final stage like what happened in South Africa. The Court could demand that it be given the final say as to the constitutionality of
all statutes (judicial review).

It would also require that the fundamental rights need to be more “entrenched” in the constitution so that the judiciary could defend these rights from legislative or executive attack. In this sense, the Court will be making sure it would have a future role in the balance, and separation, of powers.

So the debate on the new Zimbabwean constitution should not be reduced to mere political posturing. If the various stakeholders are serious about the process of drafting a "people-driven" constitution; the debate has to shift from focussing on the efficacy of, or the inadequcy of, the Kariba Draft; but on the manner in which people will be involved in the re-writing of the constitution and how immutable principles are employed, and defended, during that process.

The processes of engaging the public, and the constitutional principles in particular, were quite successful in South Africa.

The final transition to democracy saw a peaceful exchange of power, which involved all of the major political parties.

Stakeholders were also pleased with the end-result.

Constitutional principles effected the process, as is reflected by the fact that the Constitutional Court actually rejected the first draft—the enforcement mechanism proved effective, reflecting the validity of the process.

Thus, this example of constitutional principles should definitely be heralded as a success, even though caveats were noted and Zimbabwe should emulate that process; not merely dwell on debates around the use of the Kariba Draft.

___________________________
Itayi Garande
itayig@hotmail.com

Labels: KARIBA DRAFT CONSTITUTION

posted by MrK @ 11:15 PM