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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.