Chaotic and Muddled Constitution-Making in Zimbabwe
How do we understand the process of legal and political redefinition that is taking place in Zimbabwe?
How do we understand the process of legal and political redefinition
that is taking place in Zimbabwe? For many democrats, the events
unfolding in Zimbabwe constitute both a challenge and an opportunity to
better comprehend a yet to be categorized political development. Both
the scholarly and activist communities have notoriously failed to
predict the survival of such a rogue regime. The one thing we can
certainly do is perhaps understand better the emergence of the new
‘imposed’ political order. Like with all arranged marriages, the
architects always need to play a constant surveillance role to ensure
that the marriage hangs in there, even if it is by a flimsy thread. The
main task is thus to elaborate a set of analytical constructs and
hypotheses that can exude some sense of order on what has been an
endless and constantly mutating unintelligible echo and anger.
Zimbabwe takes us back to what John Elster observed in the
constitution making process decades ago. From the late eighteenth
century, there have been waves of constitution-making just like there
have been waves of democratisation- and yet Zimbabwe remains in a very
fragile situation. Its history has gone the full circle of political
evolution –capitalism, a peasant led revolution, socialist flirtations,
some controlled market stage, back to some ‘organized chaos’ and finally
is on the road to what we can just call normalcy. What is clear is that
the simultaneous transitions to democracy and the market economy never
stopped.
With regard to legitimate constitution-making, Zimbabwe will only get
it right when we all understand the mechanisms by which constitutions
come into being. An analysis of the motivations of the main parties
involved lies at the core of the process and Elster was quite right when
he pointed out that interest, reason (understood as impartial concern
for the common good) and passion, all have a powerful influence on the
constitution making process.
To Elster, interest-group pluralism is obviously an important force
as well as the concern for the common good. This makes it essential to
guard against popular movements based on zealous feelings of settling of
old scores, resentment, or in this case, questioning previous
allocative decisions. Constitution making has a retrospective element as
well as a futuristic component and the way in which Zimbabwe will deal
with its past will probably turn out to be a key decisive factor in its
ability to move forward.
There are key elements that are unavoidable in the
constitution-making process such as arguing and bargaining and these are
yet to become a part of Zimbabwe’s political culture. This alone is a
formidable task considering that there are two generations that have
been socialized into a culture of settling disputes violently. An
adopted ala carte constitution that would incorporate elements from the
various existing models will not work effectively in the country given
its various strands of fragmented ideologies. Whereas such precedents
can serve as pivotal points for resolving conflicts, many model and
replicas are likely to be influential with respect to the establishment
of the "machinery of government" - the relation between president,
government, parliament, and the courts and this is where the crux of the
matter is for Zimbabwe. An unwarranted fear of the content is
determining the process. It appears that it is difficult to agree on
the adoption of a large number of positive rights that reflect the
concern for a secure, guaranteed decent life that is an enduring legacy
of democracy such as the right to freedom (in all its dimensions),
health, education and security.
What is happening in Zimbabwe forces us to ask: is it the kind of
bargaining model where constant and real threats of withdrawal are ever
present and will it evolve into some rational debate where deliberative
democracy can be nurtured? Last week Zimbabwe`s human rights lawyers
were considering pulling out of participation in drafting a new
constitution because they were incensed that 40 percent of the delegates
were politicians while civil right activists and other non-governmental
organizations made up a small minority of the 4,000 delegates. Violent
disruptions have occurred in this process and the blame game continues.
Whatever happens next, the influence of the more recent past experiences
and events cannot be underestimated. And in the absence of trust,
progress will be painful and quite slow.
"Quasi-constitutional issues" in particular will be important in
Zimbabwe’s unfolding political dispensation. The role of the central
bank, the state media and other institutions and companies immediately
spring to the fore. Will there be a hands-off policy with respect to
these institutions, or will they remain as policy tools? In short: Will
the new polity be infused by the "spirit of constitutionalism" in which
basic political institutions will be underpinned by a solid foundation
for policy rather than systems that can be manipulated? For the case of
Zimbabwe is indeed unique and the task thus becomes that of tackling
existing constitution making theories with actual experiences, and more
importantly, spawning new theories since the long accepted wisdom seems
inadequate.
Zimbabwe faces problems that may appear to be insurmountable. It faces
the task of rebuilding a new civil society that understands civic duty
and its voluntary nature, it must replace the atomized former dominant
ruling party; create a new political system hinged on democracy,
constitutionalism and human rights; and a new economic system, based on
respect for private property. Many of its citizens are also traumatised
by years of violence in every form. This is a task that requires a deep
understanding of social and political transformation. This is in
concurrence with Habermas’s assertion that “..we are not merely heirs to
a long established practice of constitution making.., the
constitutional question does not provide the key to the main problem we
have to solve.”
Dr Annie Barbara Chikwanha, AHSI-ISS, Addis Ababa Office
