My thoughts on the new constitution

A new constitution for Zimbabwe is compulsory. The current constitution has been an issue for Zimbabwe's entire history because it has many faults and the people who were tasked with upholding it bizarrely chose to enforce the negative. It is safe, therefore, to say the problem here is to do with both the constitution (as the key structure on which Zimbabwe is founded) and constitutionalism (as the duty to uphold the provisions of the constitution). I will first present my thinking on the constitution itself, then try to develop arguments that can assist us in mainstreaming constitutionalism in the constitution making process and beyond. There are certain areas which have generated a lot of controversies and polemics. Interestingly, I find this rather healthy since the only place you should find a consensus is a cemetery not among live, rational human beings with their heads screwed in place. Then there are certain areas which generate less controversy. I will try to highlight the areas I feel strongly about:

1. Human rights and their protection: There are many obvious violations of human rights in Zimbabwe's entire history. What we should think about as a people is to develop and mainstream mechanisms of protecting the rights and freedoms of people (not just of citizens) within the boundaries of Zimbabwe. I feel we should try to borrow heavily from the universal declaration on human rights, in particular but not limited to: (a) the right to life, since it is probably the only right without which no other rights can be exercised; (b) the right to hold and transmit an opinion using the media of own choice as long as such a right does not infringe on the rights of others; (c) freedom of movement and assembly without those rights being arbitrarily withdrawn for political expediency; (d) freedom from torture and any other degrading or inhuman treatment (staggeringly Zimbabwe is neither a signatory nor a ratifier of the United Nations Convention Against Torture!); (e) the right to hold multiple citizenships, ref (c) above; (f) freedom of thought and expression, similar to (b) above; (g) no discrimination against a person on the basis or religion, ethnic grouping, gender, political or sexual orientation; (h) right to hold private property and protection from arbitrary seizure of private property; (i) freedom from arbitrary arrest. These and other rights should be specifically stated in an appropriate article or in a bill of rights. Some of these rights are expanded below.
2. The death sentence: There has been a lot of debate worldwide about capital punishment. I am personally opposed to it in as far as it has no rehabilitative value, no deterrent value, is purely punitive and vindictive, is irreversible in the event of error, and does not offer restitution to the wronged. In addition, I think a convicted individual still has a right to life. Further, who will be doing the killing of the convict and what should be society's attitude towards such killers? I feel the new constitution must specifically get rid of the death sentence.
3. The right to sexual orientation: This issue has created very interesting polemics worldwide and has been a very intensely debated issue in Zimbabwe leading to the break up the Anglican church, the Zimbabwe International Book Fair hullabaloo in the 90s and the sacking of a few individuals from the ZBC. Zimbabwe's first president was gay! Maybe, if Zimbabwean society was tolerant of gays he would not have ended up being convicted of rape later on. The constitution should allow for the right to a sexual orientation and the right to exercise that right. When I first entered this debate, I used to think that gay people chose to be gay. Now, after reading many scientific articles detailing the basis of sexual orientation and giving examples from the animal world (meaning Mr Mugabe's infamous 'worse than dogs and pigs' speech has no basis), I think if there are those that chose to be gay they are in the minority. In any case there is nothing wrong with choosing to be gay.
4. The structure of the government, powers and separation of power: I think one of Mr Mugabe's enduring gifts to Zimbabwe is a demonstration of what happens when an individual vested with untrammelled power abuses that power. There are so many staggering examples that I will not waste time describing or discussing them except a few pertinent issues: (a) There should be genuine separation of power as opposed to situation where the legislature is a rubber stamp of the executive. Parliament currently does not have adequate oversight on the executive in most areas and has zero control of other areas. For example, the country's intelligence services are not accountable to anyone except the president, that is why the culture of human rights abuses and impunity are entrenched in Zimbabwe's political landscape. (b) The judiciary should be truly free from interference. There are many judges who have been harassed, jailed or subjected to inhuman treatment as a result of their judgements. Judges should be immune to such harassment but should also be subjected to a review process to ensure the highest standards. (c) The executive should have limited powers, especially, the oft abused power of pardon where all sorts of thugs from Gukurahundi to the present have been pardoned so that they live to commit another atrocity. In actual fact, I feel the president or some equivalent authority should exercise the power of clemency, amnesty or pardon in consultation with parliament and give adequate reasons for the action to the judiciary. (d) The structure of the cabinet should be revised to reduce the number of people in executive authority. In addition, we should set a limit to the number of ministries and departments in the same way we define constitutional commissions.
5. Professionalism in the armed forces: Zimbabwe's recent history has a lot of examples of generals and commissioners wanting to interfere in the democratic process or trying to protect Gono or some other such despicable conduct. The constitution should specifically keep the generals in the barracks by inserting an article somewhere that imposes a gag order on all people in uniform in as far as which political party or person they prefer. They should neither endorse nor oppose a political entity but should stick to their duty to serve the country under whoever is the leader at a particular time. I think parliament should be given authority to demand the removal of such an individual. While we know that you can not be appointed to such a high rank (even attorney general for that matter) if you are not sympathetic to the party in power, you should not be allowed to say it in public because the office you hold should not be partisan and should not be viewed aspartisan. In addition, there should be safeguards and systems in place to prevent or punish human rights violations by people in uniform in a transparent manner which will improve public trust. Another pertinent point here is to specifically define who has powers of arrest. If a suspect is supposedly 'arrested' by a person in uniform or a member of the president's office, the attorney general should be specifically prohibited from prosecuting that person; may be that way we will not have abductions disguised as arrests.
6. A federal Zimbabwe versus a unitary Zimbabwe: I recently read an article concerning this topic, so some of the ideas here are not necessarily mine. We have seen what a unitary Zimbabwe does and has done. I think we borrow some of the strengths of the federal system and implement them here. South Africa, though not a completely federal state, provides a very interesting example. I think we can copy that system and implement it here. The main drawback, however, may be the costs associated with implementing the project. These costs can be offset by (a) reducing the number of provinces as suggested, (b) replacing the appointed governor with an elected governor or premier, (c) abolishing the provincial administrator's post which in any case was a quasi-permanent secretaryship to the governor and (d) limiting the sizes of the provincial executives and legislative assemblies. Whether this will achieve the noble goal of more focused and equitable development is another story. 
   
7. The electoral system and the means to administer it: Zimbabwe has experienced two electoral administrative systems and I do not think anyone in Zimbabwe trusts the two. This could be a result of the failings of the incumbents; Tobaiwa Mudede, then George Chiweshe, or weaknesses in the system itself. Creating a quasi-federal system will obviously call for a modification of the electoral system. I also feel that we need to revisit the first-by-the post system and replace it with some other system. The composition of the electoral commission, voter registration, the method of voting, counting and verifying the ballots and procedures for announcement should be revamped to reduce inefficiencies and opportunities for abuse. We should also modernise it to allow computerised voting and to allow Zimbabweans outside the country to vote.

The constitution must have inbuilt safeguards to enforce adherence to its stipulations. While I may not elaborate on those, it is incumbent upon every Zimbabwean to ensure that the provisions of the new constitution are respected. The current constitution has a few positives but unfortunately we have no committed ourselves to adequately implement these.