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with Alex Magaisa: Zimbabwe's draft Constitution - the key
Violet Gonda, Voice of America
July 24, 2012
Zimbabwe's long-awaited draft
constitution is finally out, after four years of bickering between
government parties. The management committee, comprising negotiators
from the three political parties in the unity government, worked
through the night until they agreed on the final draft on July 17.
Each one had to append their signatures to the final copy to avoid
backtracking problems in the future.
law lecturer Dr. Alex Magaisa was an expert adviser for the MDC-T
to the Parliamentary Select Committee, or COPAC, which was responsible
for crafting the draft.
the Voice of America's Violet Gonda that the final draft has some
positive changes from the current Lancaster House Constitution.
However, the law expert says there are some clauses that were in
the first draft that appear to have disappeared in this last document
that was finalized by the management committee. The changes include
the disbanding of the Parliamentary Public Appointments Committee,
which was supposed to recommend or vet appointments made by the
He began by
talking about a proposal for an American-style election system with
presidential running mates.
This is something new in Zimbabwe. My understanding is that there
will be a President who will have not just one but two running mates.
The person who runs for the presidency will have to nominate two
running mates if he or she wins there will be a first Vice President
and a second Vice President. So there will be a clear hierarchy
of power. I think there will be criticism that there is no need
to have two running mates but I suspect the negotiators were looking
at it from the specific dynamics of Zimbabwean politics.
So what are the implications of having two running mates?
The issue of the two vice presidents is one that emerged in the
Unity Accord between Zanu PF and PF ZAPU but I think its fairly
well known that in Zimbabwean politics there is always the dynamic
of trying to balance the regional concerns, in particular between
the southern and northern regions so that you have two vice presidents.
am not in favor of it because it's a sheer waste of money,
I think it will be useful simply to have one Vice President and
deal with it that way but this is what we have. The implications
- you have a large presidium but at the same time I think
it also means that you are going to have a clear line of succession.
Persons who are running for presidency, whether in Zanu PF, the
MDCs or any other political party are going to be forced to nominate
who they favor to be their Vice President and this is what the system
is going to do. The constitution does not say the political party
chooses the running mate, it say the person nominates the persons
who are going to be running mates. So I think for all those people
who were arguing so hard about who is going to succeed who, in the
different political parties, the signal will be shown by who is
selected as a running mate in the elections. So that is important
the issue of succession in the event of the death or generally the
vacation of office by the President then the Vice President automatically
succeeds to become the new President - like in the Malawi
situation - so it becomes more certain, more clearer than
the present situation, which is mired in confusion.
What happens if the presidential candidate loses . . .
does this mean the running mates lose out on parliamentary seats?
That's correct. If you choose to be a running mate
you take the risk that if the President loses - in fact it's
both of you who are losing because you are being elected jointly.
So you have to take the risk that if you lose you don't have
political office. But I suspect that there maybe ways of dealing
with it because if you look at the way the parliament is going to
be structured there will be opportunities for persons to come, perhaps,
through the backdoor as non-constituency MPs - like persons
elected by proportional representation or through the provinces
themselves because there will be a provincial government as well.
What does this draft say about the composition of cabinet ministers
The President will appoint the ministers and deputies. Unfortunately
there is no cap on the numbers, which might have been expected.
I think this was an issue, which was discussed over some time, but
the final draft does not contain a cap on the numbers of ministers
and deputy ministers.
What do you make of that?
It does have its challenges. If you cap the number of ministers
and deputy ministers there is always the risk that you are tying
the hands of the government but also at the same time it means that
the concerns of those who felt the government should not be too
big would not have been addressed and people may raise questions
What was finally decided on the issue of dual citizenship and the
This was one of the very contentious issues from the very beginning
because there was controversy as to whether dual citizenship should
be allowed. There were a number of clauses that came up but I think
that in the end it was felt that it was not necessary to put in
clauses relating specifically to dual citizenship in the constitution
except for citizens by registration.
So what this
means essentially is that every person who is born in Zimbabwe is
a citizen by birth and a person who is born outside Zimbabwe to
a citizen by birth is a citizen by descent, and the constitution
is saying that all citizens are equal - whether by birth or
by descent are entitled to the same rights. So there is no discrimination.
Which effectively does away with the debate over dual citizenship.
The only point
at which the issue of dual citizenship is discussed is in relation
to citizen by registration and it is at that point that an act of
parliament may deal with the issue of whether or not the person
should be allowed to take dual citizenship.
But what it means is that for the bulk of Zimbabweans who are natural
citizens, to use that word, descent by birth - then there is no
issue as to whether or not they can hold dual citizenship. I think
that matter is now settled and I think it is a good conclusion to
what was a contentious issue.
What about on the issue of voting - especially on the diaspora
The Bill of Rights provides for political rights. Now we did not
always have a clause dealing specifically with political rights
in our constitution. But we have had a number of decisions that
have been decided by the courts including the case made last year
- the Piroro case - which dealt with this issue of citizenship.
The point is our constitution now is recognising the fact that every
citizen is entitled to the right to vote. If you are in the diaspora
and you are a citizen then you are eligible to vote but of course
there may be challenges because what is happening is that the government
- through the Electoral
Act - may decide that residency should be one of the qualifications
for registration as a voter for example. And to the extent that
this should be allowed in the constitution I think that may pose
a serious risk to the ability of people in the diaspora to vote,
unless if they can successfully challenge this provision. Because
personally I think it is contradictory to the right that is provided
for under the Bill of Rights.
The other point
of course is that there is a provision in relation to the presidential
election that says the President and the Vice President shall be
directly elected by registered voters. Now instead of ending there
it says by registered voters throughout Zimbabwe. This would suggest
that you would have to be present in Zimbabwe, in the geographical
space of Zimbabwe, in order for you to vote. Which, if interpreted
in that restrictive manner it would mean that persons who are outside
the borders of Zimbabwe will not be able to vote in a presidential
I think that
will be a disaster and I think that the right should be interpreted
more broadly to say that every citizen who is eligible to vote should
be allowed to register and should be allowed to vote regardless
of their location.
Electoral reform has been one of the contentious issues over the
years. Does this draft adequately deal with the issue of reforms?
There is an entire chapter devoted to electoral systems and there
are a number of other provisions that deal with elections -
it's impossible to cover all of them within this short space
of time. However, the Zimbabwe Electoral Commission (ZEC) will have
the power to register voters, to compile the voters' roll
and so forth. There may be a slight concern which is that this power
is given in the alternative - in that it also says the ZEC may supervise
another authority to do so and I think that this must not be read
so as to give anyone beyond the ZEC the authority. The ZEC should
take up the power and authority to register voters and to maintain
the voters' roll because as we know the registrar general's
office has not been able to maintain a proper and credible voters'
roll over the years. So I think that this is an important thing
that the ZEC should really take and exercise their authority over.
There are also
other issues including the dabbling into politics by the security
services sector. I think the constitution does a very good job in
trying to reign in the security forces from engaging in politics.
There are a number of extensive provisions, which require political
accountability of the security forces, which require the political
neutrality of the security forces.
I can appreciate
that people will say we want more but I think this is a step in
the right direction in promoting a culture of political neutrality
for those who are not supposed to be involved in politics.
How does the constitution deal with that exactly?
There are quite a number of provisions, which deal with the issue
of political accountability for the security forces. For example
the requirement for political neutrality - the requirement that
they be apolitical and so forth. There may be concerns by other
observers, perhaps when they say the appointments of commanders
of the security forces should not have been left solely to the President
and that there should have been more parliamentary control and oversight
over that - I would agree with them but I think what is important
is that provisions by themselves are not the solution. What is more
important is the change in the culture of the country, the culture
of the security services sector. You don't need to have the
bulk of the constitution that you have if peoples simply behaved
themselves and did the right things.
This leads us to the issue of presidential powers because one of
the key issues has been the issue of separation of powers between
the President, parliament and the judiciary. Do you think this constitution
does enough to enhance that sense?
We haven't had the opportunity to go into great detail to
assess this so my comments are generally preliminary on this point.
My understanding is that there was a serious attempt to try and
curb the powers of the President at least to make the presidency
accountable to other institutions including parliament and so forth.
There may be other points of concern where, perhaps, people might
argue that the President's powers have not been curbed and
there is need to do a little bit more on that. But as I said, in
any democracy it is not so much what the constitution gives it is
more about the manner in which the character of the people who are
governing matters - because even if you were to give them
less powers they could easily ignore those constitutional provisions
and do as they please.
What I am happy
about is that you do see instances where there is a desire to constitutionally
provide for a limitation of presidential powers.
Can you give us some examples because I understand that in the first
draft, for example, if the President wanted to deploy troops he
would have been required to seek parliamentary approval or notify
parliament but that this is not the issue in this final draft.
Yes, it's slightly complicated. The easiest thing would have
to simply have a provision, which says whenever there is a deployment
of troops you require parliamentary approval but unfortunately the
draft does not deal with it in that way. It says that when the President
wishes to deploy troops outside Zimbabwe then he would require to
notify and getting approval of parliament within a particular period
But then there
is also deployment of troops within Zimbabwe and in that circumstance
there is no requirement for parliament approval. All that is required
is for the President to promptly inform parliament that this is
what he or she has done and the place in which those persons have
been deployed. So you can think of it in instance like Operation
Murambatsvina - soldiers have been deployed in Harare's high-density
areas or in the 1980s in Matabeleland - what is famously known
as Gukurahundi where the Fifth Brigade was deployed to the southern
would want there to be a check on the power of the President to
ensure that there is parliamentary approval in as much as you want
parliamentary approval for deployment outside the country. I am
not sure why there is a distinction has been made there but I think
the idea situation would have been to require parliamentary approval
in both situations.
Is this a toning down of what the President is required to do?
Well I am sure they have got their reasons for the way in which
they have structured this and it will be useful perhaps to listen
to why they have made a distinction between deployment within the
country and deployment outside the country.
How does it deal with the issue of appointment of senior people
This is obviously a very critical issue because the appointment
of senior government officials impacts on the independence of those
institutions and this includes judges, independent commissions like
the Zimbabwe Electoral Commission, the Human Rights Commission,
the appointments of ambassadors or permanent secretaries. Originally
the way in which this was going to be dealt with was, there was
created a particular board called Parliamentary Public Appointments
Committee - and I am sure those who have read the initial
draft will understand or appreciate what I am talking about here.
this is no longer the case. The Parliamentary Public Appointments
Committee is no longer in the final draft. What you have is a different
appointment mechanism for different offices, which in some ways
is useful because not all offices are the same. So for example the
appointment of judges will be done by the President in consultation
with the Judicial Services Commission and the Judicial Services
Commission will go through hopefully a rigorous public interview
process before recommending names to the President for appointment.
I am reasonably satisfied by the manner in which the appointment
of judges is going to be done - I think it's similar
to the way South Africa does it and as long as the Judicial Services
Commission will be independent then I think it's a fair method.
What about the appointment of ambassadors?
There may be a few concerns there because I think originally the
idea was to subject the appointment of ambassadors and permanent
secretaries to parliamentary approval but I just observed that the
final draft does not seem to have the same provision for requiring
parliamentary approval. Again I think the negotiators at the management
committee level probably had some very good reasons for coming to
this conclusion so it's not easy for us to pre-judge before
they give us information as to why they have decided to say that
parliamentary approval is not necessary for those particular offices.
But there is
also commissions such as the Electoral Commission, the Human Rights
Commission, the Gender Commission - the Parliamentary Public
Appointments Committee would have conducted the interview processes
or the approval processes but because it's no longer there
this role is going to be taken up by the Committee on Standing Rules
and Orders, which is an important committee of parliament. So essentially
parliament is still going to be involved in the appointment process
but through the Committee on Standing Rules and Orders. And to be
fair this is the same process that is being used currently by virtue
of constitutional amendment
no. 19. So all the commissions that we have currently like the
Zimbabwe Media Commission and so forth were appointed in accordance
with the procedure that is now being recommended for in the draft
Gonda: So this Committee on Standing Rules and
Orders can work?
I would like to think that it can. I think it has worked in the
last three years. I don't think that there has been a serious
dispute over its ability to conduct the interviews. What it is going
to do is essentially what the Parliamentary Public Appointments
Committee was going to do. Like I said we have not studied the differences
in much detail yet we may come to different conclusions but it will
seem to me that the principle is the same - that you want the President
to appoint persons from persons who have been chosen by another
the Committee on Standing Rules and Orders is recommending. The
only concern is for the chairpersons of the different commissions
- I think the President appoints in consultation with the
Judicial Service Commission or in consultation with the Committee
on Standing Rules and Orders. The trouble with that is that there
is a difference between appointing after consultation or in consultation
and appointing on the advice of. For me it would have been much
better if appointments were on the advice of because on the advice
of means the President cannot ignore the advice. He or she has to
follow the advice - whereas if he appoints after in consultation
with he can listen to all that the person has to say and can decide
to ignore it - so essentially makes a nonsense of the whole process.
I understand that this constitution has a clause on presidential
Yes this is not unusual. Every other constitution in the world will
have a clause on presidential immunity, which means that you don't
what the President to be subjected to personal litigation during
the tenure of office. This does not mean that the President exercise
of powers that are conferred by the law cannot be challenged - they
can be still challenged. The immunity relates to his personal issues
while he is in office. So civil and criminal cases cannot be brought
against him or her during that time.
There is also
an addition I have noticed - a clause which says the person
who was President can prove good faith as a defense for his actions.
Now I am not particular sure what this means except to say that
perhaps the suggestion is that if the President did something during
his tenure of office and he is being challenged after he or she
has left office, he could argue that yes he or she did it but he
was acting in good faith. And that could be a defense for him.
an unusual provision. I have not seen it in other constitutions
as yet and it is rather odd, in my opinion, because I don't
think good faith is a defense to criminal offenses such as murder,
genocide, corruption and so forth. There may be situations in civil
litigation where you might argue that you were acting in good faith
but I am a little bit surprised that the good faith defense seems
to have been put in the constitution at this point.
Or could it be that the politicians are trying to protect themselves?
I suppose the cynical would say that I think but there might be
a very good reason for putting in a defense of good faith, but like
I said it's an issue that would be debated over the coming
few weeks - whether or not you want to state that particular defense
in the constitution or it's something you can leave to the
Moving on Devolution what did they agree on?
This is probably one of the better aspects of this constitution
in terms of the way that it's been structured. I know that
it will not please everybody. People had different dreams and desires
in regards to the model of devolution that they wanted but I will
tell u some of the positive aspects that I think are in this particular
constitution. The structure of the provincial government itself
- in the first place it is important to appreciate that Zimbabweans
have got to this stage where they have gone beyond decentralisation
and accepted devolution as a principle of government. I think it's
a huge achievement for the people of Zimbabwe and those who have
been advocating for this type of government. It will give more power
to the local authorities, to the provincial government to deal with
issues as they uniquely see them in their own regions.
In terms of
the structure - this is where there are arguments. There is going
to be 10 provinces - eight of them, which are going to be in accordance
with the provinces we have currently but two of them will be metropolitan
provinces, Harare and Bulawayo. For the other eight there will be
provincial governors. The way they are going to be appointed is
an interesting one because it tries to accommodate two extremes.
One extreme is where the governor is directly elected by the people
in the province, and the other extreme is where the governor is
appointed by the President - as is the current case.
I think there
has been a compromise that has been struck here, which is that the
President will appoint the governor but he can only appoint from
two persons who would have been put forward by the political party
with the highest political representative in the province. So essentially
this is the people's choice insofar as they represent the
political party with the highest number of votes or MPs in that
particular province. But this is only tempered by the fact the President
would then have to appoint from those two persons. So is it a sensible
compromise? I think it is a compromise that was going to best achieved
in the circumstances where there were those two extreme positions.
Then the mayors
of Harare and Bulawayo, I understand, will be the chairpersons of
those metropolitan councils because there won't be provincial
councils. Now the people who are going to constitute the provincial
councils will include the MPs for those provinces, they will also
include ten persons who are elected by proportional representation
in that province - based on the votes to the National Assembly.
So it's going to be a mixture of senators and MPs from that
province and persons who are elected by proportional representation.
And they will have powers generally to deal with socio-economic
issues, development and so forth within the particular provinces.
But what I really
liked most about this is that the councilors, the mayors, the provincial
governors and so forth have been protected in a way that we have
never seen before in regards to local and provincial government.
If you recall the Minster for Local Government has had extensive
powers, which have been used extensively over the past few years
to remove councilors or mayors who are not necessary in agreement
with the Mister of Local Government. One of the key concerns was
to remove this facility because it causes abuse of power. Now the
councilors and all the mayors and so forth will be protected in
terms of their tenure of office - just like all the MPs are protected
in terms of their tenure, which I think is an important improvement
from the current situation where they have been perennially at risk
from the Minster of Local Government.
Some people were worried that the country is too small for this
separation of powers and that it would led to the division of regions
on tribal grounds. How can you respond to this?
I think people are entitled to have those fears and concerns but
I'm afraid this is a horse that has already bolted -
it's gone. The issues of devolution - whether or not to have
it - should have been discussed a long time ago and people had an
opportunity to discuss this issues and essentially the country agreed
that there is need for devolution. At least that is the overwhelming
view that came up and now the major political parties have come
to an agreement on it.
I think that
the principles that have been put in place in the constitution including
principles of non-discrimination, principles that subordinate provincial
governments to the national government, principles that ensure the
integrity of government - the unity, the sovereignty of the country
as a whole, I think they are important to ensure that you don't
have those challenges that people fear. But I accept that people
talk about the smallness of the country but unfortunately what people
have never bothered to consider is also that regardless of the smallness
of the country we have had very unequal disparities in development
in that small country, which really is not about the size of the
country it's about the quality and nature of the government
in the country.
And what does the constitution say about the truth and reconciliation?
They have not called it the Truth and Reconciliation Commission
but essentially that's what it is. It's called the National
Peace and Reconciliation Commission. Essentially it's going
to be established - again the chairperson is going to be appointed
by the President in consultation with the Judicial Service Commission
but the other commissioners will be appointed from a list submitted
by the Committee on Standing Rules and Orders like all the other
commissions. It will have the duty or the power to ensure there
is national peace and reconciliation to deal with these issues.
There is not much detail on it. I think the mass of it will come
out in legislation but I think laying the constitutional foundation
has been an important step in the right direction on this issue.
Let's talk about the Attorney General's office and the
National Prosecution Authority. How is the issue of the administration
of justice handled in this constitution?
You know the issue of the Attorney General's office was one
of the critical issues under consideration and it has been during
the life of the GNU. What the draft constitution does is to separate
the two offices. There will be the Attorney General's office,
which will be restricted to legal advisory roles to the government.
It will be involved in civil matters as far as the government is
concerned. So the AG is like a lawyer to the government. He advises
the government, and then there will be a National Prosecuting Authority,
which will exclusively handle all criminal matters on behalf of
So there will
be a new office called the Office of the Prosecutor General who
will be responsible for prosecuting - with officers who will assist
him in that office. What we can see from the provision is that there
has been an enhancement of the independence of the National Prosecuting
Authority compared to the Attorney General's office the way
it is at the moment. The Prosecutor General will be appointed the
same way as judges are appointed - that is through the Judicial
Service Commission and any removal of the Prosecutor General will
have to follow the procedures that are used for judges. So the mechanisms
are robust and are designed to protect the independence of the office,
but what's important is that there are specific provisions,
which guarantee the political neutrality of the Prosecutor General.
I think this is absolutely important. And finally unlike the current
constitution where the Attorney General has an unlimited term of
office, the Prosecutor General will only have a maximum of two terms
in office - of six years each.
What about on the issue of the arrest of people?
One of the beautiful things, I have to say about the draft constitution,
is that it goes to great lengths to safeguard the rights to personal
liberty - but not only that but also the rights of persons who are
arrested or detained. So there is an entire provision, which deals
with issues relating to the rights of persons who have been arrested
or detained. So for example, whereas in the old constitution a person
could be arrested and the requirement was that he should be informed
of the reasons for the arrest as soon as is reasonably practicable.
Now this was very indeterminate because it could mean several days.
The draft constitution says the person must be informed at the time
of arrest - so this is very specific.
is that whereas under the current constitution a person who has
been detained is required to be brought to court without undue delay.
Now without undue delay could also mean any number of days. It is
very fixable, very vague. The draft constitution changes this and
says that the person must be brought before a court within 48 hours
after the arrest. And now when it comes to the issues of bail, the
constitution specifically deals with the issue requiring that a
competent court must deal with all issues of applications for bail.
Unless there are specific reasons requiring a person to be kept
in custody the person should be released on bail. So I think its
going to be very difficult to sustain the abuse or misuse of the
Section 122 of the Criminal Procedure and Evidence Act, which has
been used routinely unfortunately in the last few years mainly against
How are the police and intelligence services dealt with?
The police - there is a Commissioner General who is appointed by
the President and the Police Service Commission also appointed by
the President. It would have been better if these appointments were
subjected to greater scrutiny by a parliamentary body, which was
what was envisaged but I think this seems to have been kept within
the domain of the President, which might be problematic. But I think
what is important is that there is also reemphasis, just like the
defense forces, reemphasis on the political neutrality of the Police
There are also
provisions which require the Police Commissioner General to comply
for example with orders from other bodies like the Human Rights
Commission, the Anti Corruption Commission and the Gender Commission
in the investigation of offences. So this, I think, will help those
bodies in their ability to enforce their orders against the Police
But there is
also the issue of the terms of office - there will be a maximum
term of office. There will be two terms of five years each just
like the commanders in the defense forces. So I think these reforms
are going to be important in trying to reduce this habit of staying
in office for as many years as one is able to leave.
And the intelligence services?
For the first time, and I think this is the big improvement, is
that the intelligence services have been brought within the domain
of the constitution, which is different from the manner in which
the intelligence services are currently regulated and there is a
requirement that they should be established under a law, an order
or a directive. I think this is also absolutely fundamental - the
head of the intelligence services is also going too have a maximum
term limit. He or she can only serve for a maximum of ten years
that is two terms of five years each - just like the commanders
of the defense forces and the Commissioner General of the police.
I understand that the clause on the death penalty is somewhat gender
Yes. First of all I think the point we should celebrate is that
the death penalty is effectively going to be abolished accept where
parliament passes a law in regards to cases of aggravated murder.
Now unfortunately aggravated murder does not seem to have been defined.
I think its important that there be some guidance and definitions
as to what constitutes aggravated murder. But I would suggest these
are situations where murder is so gruesome, where murder is premeditated,
where there is extreme use of violence, where the whole episode
is so repugnant and despicable. I think that would constitute aggravated
murder. It needs to be defined in the constitution so that it's
clear. It's only in those cases where the death penalty may
But even then
the court has discretion to pass a death sentence or not, which
I think is useful because the courts are minded not to use the death
penalty then I think it will effectively be abolished. There are
however specific people who are exempted from the imposition of
carrying out of the death penalty. It is persons who are under the
age of 21 years or who where under 21 years at the time of the offense
because they are considered to be youth, then a person who is over
70 years also is exempt from the death penalty, and third -
rather controversially I have to say, all women are exempt from
the imposition or carrying out of the death penalty.
Why is it controversial?
I think it's going to be a point of controversy between the
men and women because if you consider it one of the key issues that
has been raised over the course of the debate is the issue of gender
equality between men and women. Now here the constitution seems
to be taking a specific discriminatory approach in favor of women
as opposed to men. You can consider a situation where two people
- a man and woman - might commit aggravated murder. You are going
to have an absurd situation in which the man is going to be sent
to the gallows but the woman, who may have done equally the same
despicable act as the man, will be spared the gallows.
What is your understanding as to how they came up with that decision?
I have no idea. My understanding is that usually the clause is that
the death sentence cannot be imposed or carried out on a woman who
is pregnant. Now we understand the moral basis for this but what
I am not so sure about is the basis - moral or legal - of
the distinction between men and women in regard to the imposition
and carrying out of the death sentence generally. I think this is
a point where there will be a lot of discussion.
That leads us to the issue of women's rights. What is the
constitution saying about this?
I have to commend the women's lobby. I think all the women's
rights groups in Zimbabwe did a lot of fantastic work over the years
to raise the issue and to put the issues of women's rights
on the agenda because it's one of the issues, which I believe
is dealt with in a very beautiful way by the constitution.
From the first
section up to the end there is a recurrence of the emphasis on the
issue of gender equality; the objectives towards promoting women
and ensuring that affirmative action procedures are taken if required
in order to raise the status of women. For example the issue of
non-discrimination - one of the key problems under the current
constitution and under the old regime was that there was legalized
discrimination against women on the basis of customs traditions
and so forth under Section 23 of the old constitution.
But this is going to change because there is not going to be any
discrimination that will be allowed - whether it's in
relation to customs or tradition. Everything will have to conform
to the constitution and to the idea of gender equality and none
discrimination between men and women.
There are specific
rights given to women, for example the issue of guardianship. A
lot of women have had challenges in regards to issues of guardianship
of their children which the law has traditionally given to men at
the exclusion of the women and the constitution remedies this by
saying that women have the same rights of guardianship as men. I
think this is very important in so far as promoting gender equality
There are also
issues of protection of women in marriage - insofar as property
is concerned in regards to inheritance where there has been discrimination
against women and widows.
One of the key
things is that without political power women are always going to
be on the back foot - they are always going to be at a disadvantage.
So the constitution tries to deal with the issue of political power.
I am not sure that all women will be entirely satisfied because
the idea was that there should be 50-50 representation in parliament,
in cabinet, in everything else. But it is not quite like that but
you can see that there are positive steps that have been taken to
recognize that women should get more space in the political environment
So for example
in the election of the Senate, it will be done through a system
of proportional representation. The method that has been chosen
is a closed party list where the men and the women will alternate
on the list of every party. So that women will be at the top and
men second. But what will essentially be the case is that you will
have a situation, which allows better representation of women at
the Senate level.
At the National
Assembly level there is a specific provision for 60 seats, which
have been specially reserved for women. So parliament will have
270 seats and 60 of them will be specifically given to women who
will be chosen on the basis of a proportional representation system.
I think this will be important because it enables women to gain
space in parliament and hopefully over the future elections they
would have gained the knowledge, they will have become familiar
faces in politics that it will become normal for women to be voted
into politics and it's not going to be a big issue whether
or not a person is a woman or not. People have to get used to the
system that women can also hold political power.
But I just wanted
to emphasize that this special reservation of 60 seats is not going
to be there forever. It's only going to be there for the first
two parliaments after this constitution comes into force. So it
is a window, which has to be used by the women to gain space and
to be able to assert themselves to gain the mileage and to represent
the women in such a way that in future it will become normal to
vote a woman into power.
Since we are on the issue of rights - gay rights activists
have been pushing for recognition under the new constitution so
what is this proposed law saying on this controversial issue?
I think that the gay rights lobby will be disappointed with the
draft constitution because I do not think that the draft provides
protection for gay rights. I think this is one issue that has been
dealt with in a way that has put to the fore in favor of the anti
gay rights lobby.
So what does it actually say?
As far as the Bill of Rights is concerned there is no positive clause,
which protects gay rights in Zimbabwe. The non-discrimination clause
- I will just give you a brief account - there was controversy
at the beginning. For example a no-discrimination clause will say
that no person may be discriminated on such grounds as race, sex,
age, disability and if it wanted to protect gay rights it would
have said sexual orientation. The constitution does not say that.
It has completely omitted the reference to sexual orientation as
a ground upon which discrimination is prohibited - which leaves
it in the open. You recall that at the beginning of this process
there was controversy over the issue of the word 'natural
difference' because natural difference had been used as one
of the grounds for non-discrimination, now the anti gay rights lobby
argued that this was a backdoor attempt to bring in the gay rights
into the constitution. That phrase was removed.
later on there was another phrase 'circumstances of birth',
which has been inserted into that clause as another ground for non-discrimination.
Now the anti gay rights lobby, again exhibiting the phobia over
the issue of gay rights, decided that this was another backdoor
attempt to bring in the issue of gay rights and that phrase was
removed. This is not withstanding the fact that phrase was brought
in by the women's lobby as a way of protecting children who
are normally referred to as illegitimate children - children
who are born out of wedlock. The idea was that the circumstances
of a child should not be a reason for discrimination, say in property
distribution at inheritance. So that was removed at the insistence
of the anti gay rights lobby because it was felt that it was another
way of bringing in the gay rights issue, which was not the case.
I noticed also that the phrase 'any other status' has
been removed from this clause. I will just explain what it means.
In a non-discrimination clause you say 'no person shall be
discriminated on grounds a, b, c, d . . . ' then you end by
saying 'or any other status'. Now I suspect that what
the anti-gay rights lobby argued here is that 'any other status'
is a phrase, which can also be used as another backdoor attempt
at bringing in gay rights into the constitution, and I noticed that
it has been removed, which is unfortunate because 'any other
status' is not just about gay rights. I think it refers to
'any other status', which may not be mentioned in the
list - in the non-discrimination clause. So that is a loss,
which I think, is based on the phobia over the issue of gay rights.
What do you mean by the anti-gay rights lobby? Wasn't this
decision made as a result of the general anti-gay rights sentiment
during the public outreach program?
Oh ya. Absolutely. The point is this is information that was derived
from the public, which generally seemed to suggest opposition to
the issue of gay rights in the constitution. That is how it was
interpreted but the difference is that anybody looking at the data
might say there was also information which came from other sources
which might have said otherwise and that is why the issue has been
controversial. I have to say that this issue was made into a controversial
issue because some people thought that there were those who were
supporting gay rights and others who are not supporting gay rights
but in reality I think there was convergence on the issue of how
to deal with this particular matter.
When I say the
anti-gay rights lobby I am just talking about the specific - you
know there has been the insistence over everything that has been
dealt with as if the constitution is about protection of gay rights,
which it is not. And I am just saying that lobby seemed to have
asserted itself. I can understand the phobia over the other issues
but frankly the point about the phrase 'any other status'
in a non-discrimination clause, you go and read any constitution,
any international human rights instrument, which refers to a list
of factors for non-discrimination - it will always end with
the phrase 'any other status'. And if they wanted to
specifically prohibit gay rights they could have done so without
necessarily removing the words 'any other status' because
they could cover anything else that we do not, at the present moment,
know as grounds for non-discrimination and that is why I am saying
it went a bit far.
But at the end
of the day the point that comes out of this draft constitution is
it does not protect gay rights. No.
The politicians have decided that instead of three official languages,
Zimbabwe will now have 16?
Absolutely. The policy on official languages was a heated issue
during the discussions because on the one hand you want to be able
to recognize people's culture and people's culture is
captured through their language. You want people to be able to self
determine to be able to express themselves better and I think to
take pride in their local languages and it's important that
Zimbabwe recognizes, like South Africa, that all the local languages
are official languages. What this constitution does is it lists
specific languages - now the only problem that I foresee is
that if someone or a group of people crop up from somewhere in Zimbabwe
who have not been known before or who have been perennially ignored
for many years come up and say we have our own language but it's
now not stated in the constitution then of course that might be
The other issue
of course is the practicality. It's one thing to have an official
language but it's an entirely different thing to have a language
of record. A language of record means, for example, if you go to
a court of law it is the language, which the records are kept. If
you are going to have multiple languages, as languages of record,
then you might have a very serious problem. Let's assume you
go to Chipinge and Ndau is used there as a language of record, but
someone else - perhaps the accused -does not speak Ndau and
only speaks Tonga, and someone else might want to get a record in
English - it means you have to prepare the record in three
languages and that is going to be a practical nightmare.
So I think the
issue will have to be dealt with more specifically at the policy
level of legislation. I am all for recognizing Zimbabwe's
languages as official languages but I think we need to take a sensible
and practical approach in regards to the issue of the language of
Can you tell us what these 16 languages are because Ndau is among
the 16 and some would say is that not a dialect. If it is why isn't
Chimanyika for example also one of the official languages?
This is a controversial subject - whether one is a language or simply
a dialect. I remember there was a lot of controversy in the discussions.
I am not sure how they reached this final decision but I will just
read to you the languages that are there. Firstly there is Chewa,
Chibarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani,
Shona, sign language, Sotho, Tonga, Tswana, Venda and Xhosa. These
are the languages that are the official languages of Zimbabwe.
Now I can assure
you that there will be a lot of noise over, for example, Chimanyika
or Karanga with people arguing that like Ndau this is a language,
whereas others might say these are dialects. So I think we are going
to have serious controversy over these issues. My preference would
have to simply say the indigenous or local languages of Zimbabwe
are official languages in addition to English. For me that would
have worked because then you keep the list open. What we have here
is a list, which appears to be an exclusive list, and I think it
is going to annoy a lot of people and I suspect this is going to
change before the referendum.
So bottom-line does this draft constitution meet the minimum conditions
to hold free and fair elections?
This is a very difficult one. I think that the impediment to holding
free and fair elections is not just a matter of law it is also a
matter of culture, the political culture. The question that we should
be concerned with is whether Zimbabwe has advanced politically in
terms of their culture to hold free and fair elections. Will the
constitution assist in doing that? I think it will. I will not say
that it is the most perfect document that we have - you never
have a perfect constitution. There will be lots of criticisms over
a number of provisions in the constitution. There will be a lot
of comparisons with the previous draft. There will be a lot of comparisons
with the other constitutions across the region but I think we have
what we have and there is room to improve it if it has to be approved
before adoption - there are still processes to be taken through
and I think we have to be honest with ourselves. And if there are
things that are not good enough and need improvement they need to
be improved. But I think we have a basic starting point to discuss
this very important national document that should take us through
to the future.
So what will be your main criticism of this document? You talked
about room for improvement so what would you say is the main issue
that needs to be improved on?
From a very quick browse I think the issue of presidential powers
vis-à-vis parliament all needs some revisiting to ensure
that the checks and balances that the people demanded are put in
place - are enhanced. They are some but I think it will be useful
to do a little bit more in terms of looking at that particular aspect.
And of course there will be a lot of editorial challenges. There
are some sections, which may be all over the place, which are not
expressed perhaps in the best way possible. There may be some contradictions
here and there which we will pick up and I think those things will
need to be improved.
Electoral Commission should have all the powers to do with elections.
There should be no ifs or buts or alternatives. If it is there to
register voters and to maintain a voters roll it must have that
power. It can delegate it but it is not necessary for the constitution
to say that it could be done by someone else because I think it
opens up room to allow other bodies to deal with elections when
the ZEC should be moving towards a more consolidated system of running
elections. I am glad that ZEC is going to deal with delimitation,
which is better than what the original draft was doing but I think
that we need to have a more robust approach to the issue of running
elections and ZEC should be given the place that it deserves and
it should be the one to conduct all these processes without any
room for anyone else to interfere.
The current constitution was amended a record 19 times so how solid
is this final draft so that, if passed, it wont be abused?
There is this view that a constitution is for posterity but it is
also countered by the fact that we cannot decided what the future
is going to be like. Future generations should have the opportunity
to change what they think is right and we cannot put a cap on how
many amendments are going to be. It will depend on the time and
will depend on the political culture. However as far as we are concerned
this may be the final draft from COPAC but it is not the final document
that will necessarily be adopted at the referendum. People are now
going to have an opportunity to scrutinize this draft and to make
suggestions on how it can be improved and enhanced and I think people
must take this opportunity before the referendum to really engage
with the detail of the constitution and to make suggestions to make
it better so that we minimize any efforts at amendments in the aftermath
of passing it into law.
And a final word?
We have come very far as a nation. We have had a challenging three
years - stable but challenging. We have gone through a constitution
making process, which has not been perfect, which has had its hiccups,
but I think we are almost there - like a man who is waking
in a desert and the oasis is very close by. I don't think
we should die of thirst when the oasis is so close by. We must walk
and get to the oasis and see what happens.
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