Opinion / Columnist
Constitution should include Gukurahundi redress
31 Aug 2012 at 04:54hrs | Views
We have been asked as ZAPU what we think of the latest draft of the new constitution.
Having consulted our structures throughout the country, we have come up with observations based on the feedback from our members. I should say from the outset that there is a general view that the draft has covered a fair amount of ground towards answering many of the pressing needs and at the same time fallen short on critical expectations of the people of Zimbabwe. The shortfalls and their causes should be rectified in the next steps, particularly the mandatory Second All-Stakeholders Conference, as we move towards a referendum to decide the fate of the final draft.
1.Procedural handicap
The current draft was completed through the involvement of negotiators from the three parties to the Global Political Agreement (GPA), the same political parties that are partners in the Government of National Unity (GNU); these being ZANU-PF, MDC-T and MDC. This step of bargaining at the level "negotiators" from the exclusive club of the GNU partnership helped them come closer on key issues where their drafting teams needed higher levels that could make trade-offs and commit their parties to some degree.
The GPA actually does not in itself provide for a negotiated draft by an exclusive club of the signatories to that document. Instead the agreement (Article 6) mandated the signatories to draft a new constitution basing on the views of the citizenry gathered through the outreach process. Now, having subjected the drafting to trade-offs at the level of negotiators, the GNU partners still argue in two camps about endorsing or modifying the draft even before presenting their joint product to the generality of stakeholders. It will be recalled that the political spectrum alone has over 20 registered political parties, some of which have, with ZAPU, met under a forum known as the Common Issues Platform (CIP).
In addition to these overtly political organizations there are numerous civil society organizations (CSO) and interest groups with legitimate concern for production of a balanced and durable constitution that caters ofr the security and progress of all sectors of society. What was needed was for ZANU-PF and the two MDCs to honestly reflect in the current draft the views and spirit expressed in the COPAC outreach exercise; this to be followed by presentation of the outcome for debate prior to focused scrutiny at the Second All-Stakeholders Conference as a prelude to production of the final draft that will be subjected to a referendum.
ZANU-PF has been vociferous about the current draft they negotiated with the two MDCs, trying to wriggle even from the insufficient concessions they made on inclusion of key elements of the COPAC outreach report. On the other hand, the two MDCs have banded together to fight for retention of the current draft intact, fearing dilution of the limited or weak provisions that would nibble at the status-quo. Needless to say, these two positions preempted public debate and sought to polarize opinion on the basis of the draft rather than the faithful reflection of the COPAC outreach exercise. Nowhere is this miss-step more patent than on the issue of devolution, detailed in Chapter 14 but also reflected in other chapters.
2. Devolution accepted only as a word
ZANU-PF's opposition to devolution of power - with its implications for monopoly of the levers of power, access to resources and priority setting to achieve balanced development - has been consistent. ZANU-PF has instead stuck to variations of "decentralization", essentially emphasizing the control of the "centre" (i.e. Harare). In the outreach exercise the majority of Zimbabwe's provinces pronounced in favor of a devolved structure of government. I am happy that as ZAPU our position on this issue of devolution is consistent with the COPAC outreach outcome.
The draft negotiated by ZANU-PF and the two MDCs was heavily influenced by the former's intransigence and determination to emasculate proposals aimed at changing the structure and allocation of authority between the "unitary state" (in the first line of the draft) and its constituent provinces. The result of the negotiated references to "devolution" is the acceptance of the word but retention of the prevailing structure and much of the excessive control from the centre.
In particular, this draft retains the balkanization of the country into 10 provinces. ZAPU believes in a wholly devolved system of governance without prevarications such as "whenever appropriate" as stated in the current draft constitution (opening line in Chapter 14 on devolution of governmental powers and responsibilities). We have yet to get an explanation as to why the teams accepted the current numerous provinces when there were also arguments for reducing the burden of costs. For our part ZAPU has argued for 5 provinces (Manicaland, Mashonaland, Masvingo, Matebeleland, and Midlands) which largely correspond with cultural realities and eco-regions, and are viable economic units, among other things.
The proposed control and allocation of resources between central(ised) government and the provinces negates the principle of equitable sharing of revenue and the idea that people should get tangible benefit from the exploitation of resources in their vicinity. There is a small concession (under the part relating to the Consolidated Revenue Fund, in 17.5) where the ubiquitous Act of Parliament (i.e. National Parliament) can permit raising, retention and expenditure of revenue independently of central(ised) government "in order to meet the authority's expenses".
This restricted access to resources by the provinces should be looked at in the broader and meaner provision for only a paltry subvention from central government, where it is conceded that "no less than 5% of the national revenue raised in any financial year must be allocated to the provinces and local authorities as their share in that year" (Chapter 17, Part 1, 17.4). The huge share of resources that is left to central(ised) government is consistent with the current unitary octopus that would continue to be present through its many bureaucratic legs in the new, nominally devolved system. Such a system will continue to promote patronage and retain some areas as producers of raw materials whose resources become inputs to favored regions specializing in value addition and commercialization, continuing to be magnates for concentration of related investment and even de-industrialization of others.
Another area of concern in the new draft is the provision of indirect election of governors, instead of direct elections that would represent a clear choice of the voters. In the current draft the party or combination of parties with a majority of elected members in provincial elections picks and forwards two names for the President to choose from and appoint one of the names as governor. This discretion given to the President reduces accountability by making appointees feel beholden to the Head of State rather than to the electorate; and the method is amenable to manipulation against most popular choices from provinces.
3. Human rights protection and accounting for past atrocities
The enumeration and elaboration of human rights and freedoms in this draft is a step in the right direction. However, some of our members have cautioned against the limitation of fundamental human rights and freedoms, particularly the window providing for repressive legislation "during public emergency" (Part 5, 4.44). This is understandable in the light of similar loopholes used by the Smith regime for over fifteen years until our independence in 1980, and subsequently the adoption and use of similar culture to sanction detention without trial and draconian measures to keep so-called "public order and security". Such loopholes have in the past enabled the excessive use of force as a crisis management tool, and even provided a screen for genocidal behavior.
Above observations on limitation of rights and freedoms should be read alongside concerns on the scope and powers of the Zimbabwe Human Rights Commission and of the National Peace and Reconciliation Commission (Chapter 12, Part 3 and Part 6, respectively). It has been suggested that international practice is for such commissions not to work retroactively. In our situation this would mean that we have a new fundamental law that leaves no requirement for accounting by living perpetrators of gross violations of human rights; not even expectation of redress for victims who still live with the effects of those violations.
I have personally expressed the need for a public official apology, at the very least, to the survivors of the "Gukurahundi" massacre of over 20,000 civilians of Matebeleland and the Midlands provinces in the early 1980s. This should be followed by concrete and transparent measures to redress the impacts of that repression on survivors and the immediate families of slain victims. We do not need smokescreens and toothless mechanisms like the current Organ on National Healing and Reconciliation, some of whose members have made valiant but futile efforts to give it substance, Our position is that while the Human Rights Commission's job is to prevent future violations and to promote observance of human rights, there should be room for closure on old wounds and trauma of unexpected repression when we should have been enjoying our newly-earned freedom from colonial rule.
A line should be drawn under unfinished business such as the effects of "Gukurahundi". Some officials have referred to this episode as "water under the bridge", without even a thought as to where such water will collect beyond the bridge.
4. The jury is out on the new constitution
There are several positive formulations in the current draft. Actually, from a ZAPU point of view this draft has captured many issues covered in the manifesto under which Dr. Joshua Nkomo campaigned in 1980, such as the land question and livelihoods of Zimbabweans. Other areas in which we note positives are the provisions for proportional representation, possibility of dual citizenship, neutrality and professionalism of the civil service, guaranteeing free and fair elections, promotion and increased protection of human rights and freedoms. These areas need strengthening through the inputs of stakeholders in the next round. There is no question of us accepting attempts to weaken the current draft, and ZAPU will follow keenly and contribute to the debates as we approach the Second All-Stakeholders Conference. We shall take a stand on the referendum YES or NO vote depending on the degree to which critical issues receive due attention and consensus.
Having consulted our structures throughout the country, we have come up with observations based on the feedback from our members. I should say from the outset that there is a general view that the draft has covered a fair amount of ground towards answering many of the pressing needs and at the same time fallen short on critical expectations of the people of Zimbabwe. The shortfalls and their causes should be rectified in the next steps, particularly the mandatory Second All-Stakeholders Conference, as we move towards a referendum to decide the fate of the final draft.
1.Procedural handicap
The current draft was completed through the involvement of negotiators from the three parties to the Global Political Agreement (GPA), the same political parties that are partners in the Government of National Unity (GNU); these being ZANU-PF, MDC-T and MDC. This step of bargaining at the level "negotiators" from the exclusive club of the GNU partnership helped them come closer on key issues where their drafting teams needed higher levels that could make trade-offs and commit their parties to some degree.
The GPA actually does not in itself provide for a negotiated draft by an exclusive club of the signatories to that document. Instead the agreement (Article 6) mandated the signatories to draft a new constitution basing on the views of the citizenry gathered through the outreach process. Now, having subjected the drafting to trade-offs at the level of negotiators, the GNU partners still argue in two camps about endorsing or modifying the draft even before presenting their joint product to the generality of stakeholders. It will be recalled that the political spectrum alone has over 20 registered political parties, some of which have, with ZAPU, met under a forum known as the Common Issues Platform (CIP).
In addition to these overtly political organizations there are numerous civil society organizations (CSO) and interest groups with legitimate concern for production of a balanced and durable constitution that caters ofr the security and progress of all sectors of society. What was needed was for ZANU-PF and the two MDCs to honestly reflect in the current draft the views and spirit expressed in the COPAC outreach exercise; this to be followed by presentation of the outcome for debate prior to focused scrutiny at the Second All-Stakeholders Conference as a prelude to production of the final draft that will be subjected to a referendum.
ZANU-PF has been vociferous about the current draft they negotiated with the two MDCs, trying to wriggle even from the insufficient concessions they made on inclusion of key elements of the COPAC outreach report. On the other hand, the two MDCs have banded together to fight for retention of the current draft intact, fearing dilution of the limited or weak provisions that would nibble at the status-quo. Needless to say, these two positions preempted public debate and sought to polarize opinion on the basis of the draft rather than the faithful reflection of the COPAC outreach exercise. Nowhere is this miss-step more patent than on the issue of devolution, detailed in Chapter 14 but also reflected in other chapters.
2. Devolution accepted only as a word
ZANU-PF's opposition to devolution of power - with its implications for monopoly of the levers of power, access to resources and priority setting to achieve balanced development - has been consistent. ZANU-PF has instead stuck to variations of "decentralization", essentially emphasizing the control of the "centre" (i.e. Harare). In the outreach exercise the majority of Zimbabwe's provinces pronounced in favor of a devolved structure of government. I am happy that as ZAPU our position on this issue of devolution is consistent with the COPAC outreach outcome.
The draft negotiated by ZANU-PF and the two MDCs was heavily influenced by the former's intransigence and determination to emasculate proposals aimed at changing the structure and allocation of authority between the "unitary state" (in the first line of the draft) and its constituent provinces. The result of the negotiated references to "devolution" is the acceptance of the word but retention of the prevailing structure and much of the excessive control from the centre.
The proposed control and allocation of resources between central(ised) government and the provinces negates the principle of equitable sharing of revenue and the idea that people should get tangible benefit from the exploitation of resources in their vicinity. There is a small concession (under the part relating to the Consolidated Revenue Fund, in 17.5) where the ubiquitous Act of Parliament (i.e. National Parliament) can permit raising, retention and expenditure of revenue independently of central(ised) government "in order to meet the authority's expenses".
This restricted access to resources by the provinces should be looked at in the broader and meaner provision for only a paltry subvention from central government, where it is conceded that "no less than 5% of the national revenue raised in any financial year must be allocated to the provinces and local authorities as their share in that year" (Chapter 17, Part 1, 17.4). The huge share of resources that is left to central(ised) government is consistent with the current unitary octopus that would continue to be present through its many bureaucratic legs in the new, nominally devolved system. Such a system will continue to promote patronage and retain some areas as producers of raw materials whose resources become inputs to favored regions specializing in value addition and commercialization, continuing to be magnates for concentration of related investment and even de-industrialization of others.
Another area of concern in the new draft is the provision of indirect election of governors, instead of direct elections that would represent a clear choice of the voters. In the current draft the party or combination of parties with a majority of elected members in provincial elections picks and forwards two names for the President to choose from and appoint one of the names as governor. This discretion given to the President reduces accountability by making appointees feel beholden to the Head of State rather than to the electorate; and the method is amenable to manipulation against most popular choices from provinces.
3. Human rights protection and accounting for past atrocities
The enumeration and elaboration of human rights and freedoms in this draft is a step in the right direction. However, some of our members have cautioned against the limitation of fundamental human rights and freedoms, particularly the window providing for repressive legislation "during public emergency" (Part 5, 4.44). This is understandable in the light of similar loopholes used by the Smith regime for over fifteen years until our independence in 1980, and subsequently the adoption and use of similar culture to sanction detention without trial and draconian measures to keep so-called "public order and security". Such loopholes have in the past enabled the excessive use of force as a crisis management tool, and even provided a screen for genocidal behavior.
Above observations on limitation of rights and freedoms should be read alongside concerns on the scope and powers of the Zimbabwe Human Rights Commission and of the National Peace and Reconciliation Commission (Chapter 12, Part 3 and Part 6, respectively). It has been suggested that international practice is for such commissions not to work retroactively. In our situation this would mean that we have a new fundamental law that leaves no requirement for accounting by living perpetrators of gross violations of human rights; not even expectation of redress for victims who still live with the effects of those violations.
I have personally expressed the need for a public official apology, at the very least, to the survivors of the "Gukurahundi" massacre of over 20,000 civilians of Matebeleland and the Midlands provinces in the early 1980s. This should be followed by concrete and transparent measures to redress the impacts of that repression on survivors and the immediate families of slain victims. We do not need smokescreens and toothless mechanisms like the current Organ on National Healing and Reconciliation, some of whose members have made valiant but futile efforts to give it substance, Our position is that while the Human Rights Commission's job is to prevent future violations and to promote observance of human rights, there should be room for closure on old wounds and trauma of unexpected repression when we should have been enjoying our newly-earned freedom from colonial rule.
A line should be drawn under unfinished business such as the effects of "Gukurahundi". Some officials have referred to this episode as "water under the bridge", without even a thought as to where such water will collect beyond the bridge.
4. The jury is out on the new constitution
There are several positive formulations in the current draft. Actually, from a ZAPU point of view this draft has captured many issues covered in the manifesto under which Dr. Joshua Nkomo campaigned in 1980, such as the land question and livelihoods of Zimbabweans. Other areas in which we note positives are the provisions for proportional representation, possibility of dual citizenship, neutrality and professionalism of the civil service, guaranteeing free and fair elections, promotion and increased protection of human rights and freedoms. These areas need strengthening through the inputs of stakeholders in the next round. There is no question of us accepting attempts to weaken the current draft, and ZAPU will follow keenly and contribute to the debates as we approach the Second All-Stakeholders Conference. We shall take a stand on the referendum YES or NO vote depending on the degree to which critical issues receive due attention and consensus.
Source - ZAPU President
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