Address to the International Conference on the Making of a New Constitution for Zimbabwe
Date: 25 Nov 1999
Speaker: Secretary-General Chief Emeka Anyaoku
I say so not only because the process of constructing a new constitution for any country, much less one as important as Zimbabwe, is an extremely arduous and delicate task, but also because Zimbabwe has a special place in the history of the modern Commonwealth.
The Unilateral Declaration of Independence by the Smith regime, on 11 November 1965, precipitated the first meeting of Commonwealth Heads of Government outside London - in Lagos, Nigeria, in January 1966. In the course of that meeting, Heads of Government reinforced their determination to support effective international sanctions against the Smith regime.
The Commonwealth went on to play a key role in supporting the transformation of Zimbabwe into a non-racial democracy.
It was in Harare that the Commonwealth in 1991 established its guiding principles through the adoption by Heads of Government of what became known as the Harare Commonwealth Declaration.
The Harare Declaration outlined the fundamental political values of the Commonwealth principally as:
democracy and democratic institutions which reflect national circumstances, the rule of law and the independence of the Judiciary, just and honest government; fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief.
Let me say from the very beginning that it is not for me, or any other outsider for that matter, to tell Zimbabweans what should be in their constitution. There is a well-founded suspicion in Zimbabwe, and in Africa as a whole, of anything smacking of superior wisdom from outside.
Like much else in African history, such an attitude goes back to the days of slavery when the horrors of the slave trade were presented in Europe and America as positive deliverance of its victims from the scourge of ignorance, superstition and squalor.
When colonialism succeeded slavery, that too, in its turn was presented as a duty of Christianity and civilisation towards a race still in the infancy of mankind and without the blessing of the art of good government and of spiritual progress.
No other continent has suffered so much from the solicitude and pontification of others. On this occasion, however, there is no cause for concern. It is the people of Zimbabwe and their government that have decided of their own volition to embark on this process of constitutional reform. And what better time to reflect on the achievements and shortcomings of the past and to chart a new course for the future than at the end of a millennium and the beginning of a new one?
Those of us from outside have come to Harare as friends of Zimbabwe, invited by the Commission not to preach about the merits of democracy to Zimbabweans but, as the Chairman indicated in his letter of invitation, to exchange ideas and experiences and to provide comments and a critique of the Draft Constitution for Zimbabwe.
Of the many definitions of a constitution which I have come across, the one I find the most apt is Thomas Paine's in his work "Rights of Man" in 1752. Paine wrote and I quote:
A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right... A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.
A constitution is, therefore, essentially about a people deciding how they are governed. It is not about the government or anyone else telling the people how they ought to be governed.
In this regard, it is vital that the constitution comes from below and not from above. In practice, this means consulting the people in drafting as well as in approving of the constitution. I am greatly encouraged to learn that the Constitutional Commission has toured the length and breath of Zimbabwe, sounding out the opinion of ordinary people and consulting widely with civil society organisations. Everything must be done to encourage every Zimbabwean to be part of this process of determining the fundamental law of the land.
The question before the people of Zimbabwe is how the constitution of the country can be made to underpin and safeguard multi-party democracy and protect the national interests of all Zimbabweans.
The Harare Commonwealth Declaration refers to democratic processes and institutions 'which reflect national circumstance'. This qualification is a recognition of the different historical experiences, and diverse cultural and religious identities within the Commonwealth. Constitutions and institutions must therefore be tailored to these varying histories and identities.
It is up to the people of Zimbabwe to decide for themselves, for example, whether an executive presidency or cabinet government is more suitable to their national circumstance; which particular kind of electoral system to adopt; and whether they want a centralised or decentralised administration.
Nonetheless, 'respect for national circumstances', does not mean that there is a less demanding path to democracy for Zimbabweans or indeed for Africans; nor that undemocratic forms of government are tolerable provided they can conform to the outward appearance of democracy, such as the holding of stage-managed elections.
There are certain essential attributes which are common to all democracies regardless of national circumstances. Democracy and democratic processes and institutions in this context mean the holding of elections at regular intervals under conditions which guarantee the free expression of will by the people in the choice of their representatives.
The two most important of these conditions are free speech and freedom of association. Free speech means the right of the population and groups within it to criticise the performance of the government and to espouse alternative policies by various means, including through the press, without fear of retribution. Freedom of association includes among other things, the right to form pressure groups and political parties to pursue the interests of their members, including through peaceful assembly and demonstrations. These and other fundamental freedoms must be protected by the constitution if democracy is to flourish.
Secondly, it is fundamental to every democracy that human rights are promoted and protected by law. Indeed, the recent passion for democracy throughout Africa is based partly on the belief that a democratic system of government offers the best possible safeguard for human rights.
Zimbabwe is a signatory of the Universal Declaration of Human Rights and the African Charter of Human Rights and Fundamental Freedoms, both of which provide a comprehensive list of the kind of fundamental rights the people of Zimbabwe may wish to be specifically spelt out in their constitution. May I just add one thing as far as fundamental human rights are concerned: that is, there is little value in having rights which are not enforceable. It is essential in this regard that the constitution provides a mechanism to make fundamental human rights and freedoms judicially enforceable.
A third cornerstone of democracy is the rule of law and the independence of the judiciary. The law must apply equally to everyone, including the government and its agents. And, while a clear separation of powers between the legislative and executive branches of government is not necessarily a pre-requisite for democracy, it is almost universally accepted that the independence and impartiality of the judiciary is fundamental to every democracy. The judiciary are not only the guarantors of the sanctity of the constitution, they also serve as an important bulwark against the abuse of power by the other branches of government. A democratic constitution must therefore provide specific measures to guarantee their independence and impartiality. Such measures could include providing judges and other judicial officers with security of tenure and making it difficult for judges in good conduct to be removed from office or for the terms and conditions of their service to be altered to their disadvantage.
This brings me to the issue of accountability. The concept of those who govern being accountable to the people is at the heart of every democracy. Without accountability, there is really no democracy. It is society's insurance policy against those who form the government at any given time. Corruption and lack of accountability in public life have been used by nearly all coup makers in Africa and around the world to justify the overthrow of elected governments even though the ensuing military regime may turn out to be more corrupt and less accountable. The separation of powers between the three branches of government, and especially the independence of the judiciary are all classic mechanisms to hold governments to account between elections. However, the constitution may need to provide additional measures to ensure just and honest government.
Some African countries have created specific anti-corruption agencies, while others have strengthened the powers of national audit offices to scrutinise all public expenditure and to report directly to parliament and to the people. Throughout the machinery of government, transparency must be the order of the day.
Beyond the essential ingredients of a democracy which I have outlined in very broad terms, a democratic constitution should be seen as a liberating document which not only limits the powers of the state and its institutions but guarantees the kinds of liberties and freedoms that will make the pursuit of happiness and self-fulfilment a reality for the people. I have in mind especially the issue of women's rights and equal opportunity for all citizens irrespective of gender, race, religion or ethnic background. Equal opportunity for all is a mark of true liberation. It ensures that the benefits of economic development accrue to the many and not to the few and that all citizens have a chance to live up to their potential and to achieve self-fulfilment.
Democracy is more than just a form of government and a set of formal mechanisms. It needs to be embedded in a truly democratic and civil culture.
Indigenous civil society organisations in the form of religious and communal associations, professional groups, women's organisations, trades unions, student groups and other non-governmental organisations have a vital role to play in this. They serve as a check on the power of the state and also provide opportunities for self-fulfilment that are truly independent of state patronage.
Without independent social and economic institutions, personal ambition is likely to be concentrated on capturing the state itself, thus making it difficult for those who have won power to surrender it. The constitution must ensure that the institutions of civil society do not survive on sufferance but as of right, so that civil society can exist alongside, and under, the protection of the state, rather than in opposition to it. On the issue of measures in response to the specific 'national circumstances' I would like to offer you a number of observations.
No government in the world is likely to surrender power willingly; but in democratic societies governments accept the verdict of the polls and the timetable for periodic elections provided for in the constitution or electoral law. They do so partly because they share with the opposition parties an overarching national loyalty, above and beyond their political differences and conflicts of interest, but also because accepting electoral defeat does not condemn them permanently to the political wilderness or exclusion from all means of self-fulfilment because of a 'winner takes all' policy. The question then is how this degree of mutual trust between political rivals, and between electorate and government, can be established in African conditions.
Part of the solution lies in the development of a new democratic ethos among the major political players. Parties that have won elections must be allowed to rule but they must not rule in such a way as to appear to be gathering for themselves all power and influence within the state, thereby denying the rights of the opposition parties. Similarly, in discharging their duty of opposing the government and holding it to account, the opposition parties must remain loyal to the institutions and interests of the country and must not seek to couple constitutionalism with a readiness to exploit unconstitutional means to gain power. In particular, they must not be so determined to win power as to become collaborators or agents of external groups whose aspirations may be subversive of the true national interests of the countries concerned.
But there are a number of institutional and technical arrangements that could also help in bridging the gap between government and opposition. Mention has already been made of the importance of ensuring that the laws pertaining to the conduct of elections are truly independent of the government of the day and provide for a level playing field for all the political competitors. Experience within the Commonwealth suggests that an independent electoral commission with the requisite financial and operational autonomy helps considerably in enhancing public confidence in the electoral process
There may be merit in the state providing the main opposition leaders, especially those in parliament, with adequate financial and administrative support to carry out their functions effectively. It may also help if the leader of the largest opposition party in parliament were to be given a status by state protocol commensurate to that position. These measures together could provide an incentive for political leaders to accept the function of a loyal opposition.
Thirdly, ways need to be found to preserve the dignity in retirement of those who have served their country in the highest office. Where a Head of Government retires or is not eligible to run for office again, the state should as a matter of right provide that person with a pension commensurate with his or her former status and, where appropriate, with security protection.
The cultural, ethnic and religious diversity of African countries should not necessarily militate against the survival and progress of democracy. It is the deliberate exploitation of this diversity by individuals and political groups seeking or exercising power that has very often proved to be a threat to democracy.
What I call constructive pluralism goes beyond mere passive toleration of difference to the establishment of policies, practices and programmes by the government aimed at promoting peaceful co-existence and understanding between different groups and communities within the state. This may mean considering a more decentralised structure for the state; giving local communities more say in the running of their own affairs through strong elected local government; and giving consideration to adopting an electoral system that ensures more proportional representation designed to favour a more inclusive parliament.
As I drove into Harare yesterday, I could not help but remember that thousands of people fought and died in this country against minority rule and racial oppression and in support of democracy, freedom and human dignity.
I hope, therefore, that in embarking on this process of creating a new democratic constitution you will take account of the lessons of the last twenty years and be guided by the need to do justice to the high ideals of all those living and dead who fought for the liberation of this country. I wish you all well in your deliberations.
25 November 1999
delicious
digg
reddit
facebook
stumbleupon
News feeds