Zimbabwe’s Draft constitution: The Key Changes.

alex magaisa

Zimbabwe’s  long-awaited draft constitution  is finally out, after four years of bickering  between the coalition  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.Kent University 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.

Magaisa tells the Voice of America’s Violet Gonda that the final  draft has some positive changes from the current Lancaster House  Constitution.

He began by talking about a  proposal for an American-style election system with presidential running mates.

MAGAISA: 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.

GONDA: So  what are the implications of having two running mates?

MAGAISA: 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.

Personally  I 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 for Zimbabwe.

But finally 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.

GONDA: What  happens if the presidential candidate loses … does this mean the running mates  lose out on parliamentary seats?

MAGAISA: 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.

GONDA: What does this draft say about the composition of cabinet ministers and  deputies.

MAGAISA: 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.

GONDA: What do you make of that?

MAGAISA: 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 about that.

GONDA: What was finally decided on the issue of dual citizenship and  the diaspora vote?

MAGAISA: 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 allowedto 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.

GONDA: What about on the issue of voting – especially on the diaspora vote?

MAGAISA: 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 election.

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.

GONDA: Electoral reform  has been one of the contentious  issues over the years. Does this draft adequately  deal with the issue  of reforms?

MAGAISA: 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.

GONDA: How does the constitution deal with that exactly?

MAGAISA: 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.

GONDA: 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?

MAGAISA: 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.

GONDA: 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.

MAGAISE: 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  of time.

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 regions.

Ideally you 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.

GONDA: Is this a  toning down of what the president is required to do?

MAGAISA: 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.

GONDA: How does it deal with  the issue of appointment of senior people and commissions?

MAGAISA: 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.

Unfortunately 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.

GONDA: What about the  appointment of ambassadors?

MAGAISA: 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 constitution.

GONDA: So this Committee  on Standing Rules and Orders can work?

MAGAISA: 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 body.

So essentially 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.

VIOLET: I understand that this constitution has a clause  on presidentialimmunity?

MAGAISA:  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.

Now it’s 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.

VIOLET: Or could it be that the politicians are trying  to protect themselves?

MAGAISA: 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  common law.

VIOLET: Moving on Devolution what did they agree on?

MAGAISA: 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.

VIOLET: 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?

MAGAISA: 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.

VIOLET: And what does the  constitution say about the truth and reconciliation?

MAGAISA: 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.

VIOLET: 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?

MAGAISA: 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 the state.

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.

VIOLET: What about on the issue of  the arrest of people?

MAGAISA: 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.

Another example 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  political activists.

VIOLET: How are the police and  intelligence services dealt with?

MAGAISA: 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 Commissioner General.

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 Commissioner  General.

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.

VIOLET: And the intelligence  services?

MAGAISA: 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.

VIOLET: I understand that the  clause on the death penalty is somewhat gender sensitive?

MAGAISA: 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 be  allowed.

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.

VIOLET: Why is it controversial?

MAGAISA: 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.

VIOLET:  What is your  understanding as to how they came up with that decision?

MAGAISA: 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.

GONDA: That  leads us to the issue of women’s rights. What is the constitution saying about  this?

MAGAISA: 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 is  concerned.

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 in Zimbabwe.

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.

GONDA: 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?

MAGAISA: 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.

GONDA: So  what does it actually say?

MAGAISA: 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.

Rather  controversially 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.

Rather  interestingly, 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.

GONDA: 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?

MAGAISA: 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.
GONDA: The  politicians have decided that instead of three official languages, Zimbabwe  will now have 16?

MAGAISA: 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 an issue.

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  record.

GONDA: 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?

MAGAISA: 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.

GONDA:  So bottom-line  does this draft constitution meet the minimum conditions to hold free and fair  elections?

MAGAISA: 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.

GONDA: 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?

MAGAISA: 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.

The Zimbabwe 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.

GONDA: The current  constitution was amended a record 19  times so how solid is this final draft so  that, if passed, it wont be  abused?

MAGAISA: 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.

GONDA: And a final word?

MAGAISA: 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.

source: http://www.newzimbabwe.com/news-8575-New+constitution+the+key+changes/news.aspx

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