The Conflict of Constitutionalism in Zimbabwe

Monday, July 06, 2009

By Rejoice Ngwenya, Harare, Zimbabwe

Robert Mugabe(L), Ian Smith(R)Virtually abandoned and discarded by a bankrupt government she has worked for almost thirty years, my sister Zanele Ngwenya, fifty five, languishes in a dilapidated hospital ward after a bone-crunching automobile accident.

To term the United Bulawayo Hospital [UBH] a ‘hospital’ is an overstatement. Almost thirty years under the clutches of a senseless, abusive dictatorship, Zimbabwe’s once fine medical system has turned into a hellhole. A ‘hospital’ with no blankets, no food, no drugs, blocked plumbing, and two solitary tungsten bulbs dangling from the cracked ceiling is a good setting for a horror movie.  

Ms Ngwenya is one of many women in the ward that looks after fractures, but due to an astronomical flight of doctors out of the country, she has to make do with a North Korean practitioner whose knowledge of English is limited to one word: ‘bones’. The early morning visiting hour slot greets you with an overwhelming stench of cheap medicine, human odour and stale food. Ironically, a few blocks down the road, a state-of-the-art health investment worth several millions of United States Dollars lies idle, almost ten years after its completion. Ekusileni Medical Centre was a brainchild of Zimbabwe political icon Joshua Mqabuko kaNyongolo Nkomo. Because President Robert Mugabe hated this man, the entire ZANU-PF system of governance condemned the project to oblivion.

July, another irony, is commemoration month of the death of Joshua Nkomo. State media is currently engrossed in an orgy of primitive egotistic hypocrisy, praising Nkomo as ‘Father Zimbabwe’ and yet, his party and properties either remain expropriated or like Ekusileni Medical Centre, lie idle.

While Ms Ngwenya is gasping for life at UBH, Prime Minister Morgan Tsvangirayi and President Robert Mugabe brandish swords at each other on issues a far cry from life-saving reality. Of course Zimbabweans want a new constitution – at least they can guarantee a quick exit of the forgettable ZANU-PF machinery of deceit, repression, corruption and violence. But Mugabe is not giving up without a fight. The agreement that brought about the Inclusive Government was succinct in that Zimbabweans have to debate and reach a consensus on a new constitution within eighteen months from September 2008.

Article 6 of this agreement created an all party Select Committee of Parliament to supervise constitutional debates in communities. But other members of civil society, particularly the National Constitutional Assembly [NCA], argue that a process driven by Parliamentarians is not only prone to partisan contamination, but also subverts the will of the people. Their definition of ‘popular’ excludes
politicians, who on the other hand claim they were themselves elected by ‘the people’.

The conflict of constitutionalism is not new in this Southern African country. Ian Douglas Smith, the last colonial ruler of Rhodesia, also had his brand of constitution that was rejected by the British who eventually brought him kicking and screaming to Lancaster House, London in 1979 where technically, Zimbabwe was born. Both Mugabe and his late revolutionary colleague, Joshua Nkomo, resented the British-brokered document that guaranteed property rights of the white minority for ten years.

By 2008, Mugabe had amended the Lancaster House constitution a record nineteen times, hence the ire of NCA and their constituents. In fact, 1999 was another battlefield because the NCA, at that time fronted by the then Secretary General for the Zimbabwe Congress of Trade Unions [ZCTU] Morgan Tsvangirayi, dismissed Chief Justice Chidyausiku’s Mugabe appointed Constitutional Commission as a
sham. Almost every protagonist ran a parallel process, so that by the time Mugabe’s propaganda hit man Professor Jonathan Moyo took his version of the Draft Constitution to a referendum, the NCA and Tsvangirayi had galvanised enough Zimbabweans to vote ‘No!’

Since then, the NCA, through its never-say-die chairperson Dr Lovemore Madhuku, has waged a campaign against using Mugabe’s amended constitution to drive the electoral process. His argument is that as long as Mugabe is afforded unlimited executive authority, he will, as he has, manipulate all electoral outcomes, even if he appointed what he terms an ‘independent’ electoral authority. Some neutral commentators have however put a damper on Madhuku’s crusade. At one time, the NCA was meant to have changed guard, but Madhuku is alleged to have ‘manipulated’ the organisation’s constitution to enable him to resume another term as chairman. Thus, the critics argue, the good doctor has lost the moral [high] ground to wage a democracy war against fellow constitution abuser Robert Mugabe!

The bulk of civil society is also divided. Recent stakeholder consultations have not produced hard and fast resolutions on desisting from participating in the government brokered process. Some argue that the Select Committee of Parliament co-chaired by lawyers Eric Matinenga of MDC and Paul Mangwana of ZANU-PF is ‘not representative enough’, since there are other [small] parties that did not make it to Parliament but have a following, like Dr Simba Makoni’s Mavambo Kusile Dawn [MKD]. However, others say that MDC and ZANU-PF are THE political parties that represent THE people, so their legitimacy is unquestionable. The second group urges its constituents to participate to ensure content reflects sectoral interests, while the last groups claim to be ‘observers’ to the process.

On July 3, both the NCA and ZCTU stayed out of another stakeholder ‘people’s convention’ running under the “Our Country Too” brand attended by two thousand civil society representatives. This group divided constitutionalism into eight thematic entities who took common resolutions on issues like enshrining fundamental liberties in the Bill of Rights, devolution of power and proportional
representation. Enshrining local governance in the national constitution and infusing powers of recall was said to be key in progressive constitutions.

The ‘people’s convention’ was resolute in trashing the GNU Kariba Draft, while arguing that if the Select Committee of Parliament so much as manipulates the process, they will campaign, like they did in February 1999, for a No Vote at the next constitutional referendum in 2010. Taken whichever way, until there is a system of governance that allows for democratically elected representation guaranteeing of individual liberties and good governance, the likes of Ms Ngwenya and her young brother Rejoice, will have to make do with dilapidated public health delivery system.

Rejoice Ngwenya is President of Coalitin for Liberal Market Solutions,a think tank, base din Harare and affiliated with