Speaking at the burial of veteran nationalist Akim Ndlovu, Zanu PF leader Robert Mugabe quipped that the writing of Zimbabwe’s new constitution will not be a ‘mass party’. The aged leader has not hidden his liking for the Kariba Draft, negotiated in secrecy by the ruling political parties’ representatives: Welshman Ncube, Tendai Biti and Patrick Chinamasa. The draft was agreed on in 2007 – a year before the September 2008 Global Political Agreement (GPA) that led to the formation of the unity government.

Reasons for his preference are easy to read, and should provide enough cause for the pro-democracy movement to remain vigilant. The Kariba Draft retains a system of executive fundamentalism that has so undermined good governance, nurtured corruption and stifled democracy. The draft carves for the president unchecked and exclusive authority, placing him above all citizens and the law. He has unfettered powers to make all key appointments with the only requirement being that he consults bodies which he would have appointed himself – a classic treatise on how to consult oneself. These appointments range from ministers, permanent secretaries, judges, Reserve Bank governor, attorney general and ambassadors, to chairpersons of various commissions set out in the draft – including the Electoral Commission.

As if not having learnt anything from our immediate history, the draft gives the president exclusive powers over the military, including the power to declare war. No cabinet or parliamentary approval is required, until after sometime – by which the country would already be at war. Using existing provisions in the Lancaster House constitution, Mugabe sacrificed the lives of many of our soldiers in the DRC. This adventure in 1997 depleted over a billion dollars in unbudgeted resources – setting in motion the collapse of the economy.

The president also has powers to declare a State of Emergency and martial law without cabinet and parliament approval. We have had an experience of a State of Emergency and martial law before: 1964 until 1990. During this time, a number of atrocities were committed under the banner of preserving state security. Mugabe’s admitted ‘moment of madness’ saw an estimated 20 000 people being butchered in Matebeleland, and several hundreds disappeared across the country. Civil liberties were suspended – and political freedoms entertained to the extent to which they were either state sanctioned or aided the state.

In normal democracies, parliament is meant to provide checks on the executive in addition to its duty of ‘law making’. A president who violates the constitution or deliberately fails to defend it can be impeached. Yet in Zimbabwe, the drafters of Kariba sought a constitution that removes any parliamentary sanction against him. Instead, the president is handed a sledgehammer to smash parliament: Powers to dissolve parliament. This power can be exercised as he wishes – without need to consult or show reason.

Such powers are as enticing to politicians seeking to retain political power as they are to those seeking to acquire it. The same can’t be said for the country – the less power politicians have, the healthier the nation. The draft is a perfect tool for dictators and a monumental retard of democracy. This is the draft that in all likelihood will be presented to the people.

The other parties to the GPA have been trying to convince Zimbabweans and the world that this will not be case. But experience militates against their assurance. For a start, few Zimbabweans would have believed that the Movement for Democratic Change (MDC) would sign such a scandal as the ill-named Global Political Agreement (GPA). Any reading of the document proves that Zanu PF had an upper hand. Even after losing the 2008 elections, Mugabe walked away being both head of state and head of government. He chairs cabinet. Morgan Tsvangirai, the winner of the elections has had to live with being reminded by some ministers and security chiefs that they take order ‘only from the president’.

Issues remain unresolved. Mugabe refuses to swear in the MDC nominee for deputy in the agriculture ministry, Roy Bennet; Gideon Gono and Johannes Tomana remain in office; Mugabe’s appointees remain as permanent secretaries, giving Mugabe control of the administration of all ministries, and Mugabe refuses to convene the National Security Council. In the past months, we have witnessed the use of the courts to decimate the MDC lead in the House of Assembly. Seven MDC members of parliament have been conveniently convicted or are facing trial on charges that carry custodial sentences that disqualify them to from parliament.

In all these situations, the MDC has done little apart from releasing statements and ‘referring matters to SADC’. As the party waits for a response from SADC, Mugabe’s onslaught remains. It is not difficult to see where power lies in this government: The MDC look like the guests of a delinquent.

The GPA sets a number of areas of focus and deliverables. Most of these require nothing but goodwill to achieve. These include the unlocking of civil and political liberties; allowing the free movement of humanitarian aid; freeing the media and stopping political violence. Five months into the life of this transitional regime, we are yet to see any signs of these matters being addressed.

Considering that the MDC is failing to win on these issues, it is difficult to imagine the party gathering enough strength and conviction to fight off the possible imposition of the Kariba Draft. Mugabe has since reminded everyone that they agreed to the Kariba Draft. On its part, the MDC has developed the narrative of ‘incremental change’. It reads naive.

Some elements in the party are of the thinking that the ‘constitution making process’ currently going on must not be challenged no matter how bad it is or how bad the content will be. The idea is that this unity regime concludes at the delivery of a constitution, with elections being held and a popular government being elected. This line of thought feeds on the hope that the MDC would win the election – and then as a new government, will create space and resources for a thoroughly people driven democratic constitution.

MDC MP for Nyanga Douglas Mwonzora, one of the chairpersons of parliament’s Select Committee has even gone further to suggest that opposing the process is tantamount to supporting Mugabe. Already many within the broader democracy movement have heeded to this scaremongering and are slavishly following the road to the butcher’s house.

Without the constitution hurdle being passed, there will be no elections we are told. So in theory we must all support the parliamentary process chicanery and the Kariba Draft it seeks to legitimise. This builds on the same defeatist theory that saw the people’s party being pushed into an unfair and anti-democratic deal with Zanu PF. Then, people’s hunger and suffering was used to capitulate and compromise democratic principles instead of being seen as the objective factors upon which the struggle for democracy would be fought and achieved.

This school of thought has been opposed by our democracy movement since its inception. The 2000 Chidyausiku Draft Constitution could have been accepted if it were for Mwonzora and his kind. The same reasons they raise now applied then. Even better. At least the Chidyausiku Commission managed to project a façade of popular consultation whilst masking Mugabe’s imposing hand. The same can not be said of the Select Committee cronies. In voting 'no' against Chidyausiku’s draft in the 2000 Constitutional Referendum, Zimbabweans were making it clear that undemocratic processes can never give birth to sustainable democratic outcomes. They won.

Worse, it is even hard to believe an MP touting the ‘elections after constitution’ carrot when members of parliament are scrambling for five year US$30 000 vehicle loans. Aside a few, parliament is the only source of livelihood for our MPs.

In opposing this, the democracy movement has long argued that constitution making is about qualifying our democracy, putting in place a template that will give it meaning. It is about defining the relations between citizens, managing their competing interests whilst promoting common interests. It is about establishing their relations with the state and apportioning the degrees of power to those privileged to run their public affairs. The latter part clearly calls for careful thought and the need for thorough restraining. To give those who have this power a free reign to decide the nature of power and how it should be used is a disaster. Our experiences with a constitution made for the moment has taught us the hard way. Being so, people have to be at the centre of this struggle. They have to write the constitution themselves – as citizens, not serfs.

The National Constitutional Assembly (NCA), Zimbabwe Congress of Trade Unions (ZCTU) and many in the MDC executive council have given guard to this truth. They have asked parliament to back off from leading the constitution making exercise and called for the establishment of an Independent Constitutional Commission. The commission should be established through an open and transparent process. Such a commission should not only be independent but also be seen to be independent. No group – whether political parties, the executive, parliament, NGOs etc should have more privileges than others in this process. All citizens irrespective of social, economic or political status should be equalised, and their opinions and views must be held with the same weight. This is the principle upon which a people driven constitution is made.

Parliament’s role should be to safeguard the independence of such a commission from the ‘obvious hand’ of the executive. The executive has a significant role in ensuring that the necessary resources are allocated, through parliament, to the commission. In participating in the processes of the commission, members of parliament and the executive would do so as any other citizen would.

The struggle for a new constitution should not be seen as an aside battle. It is the soul of the last decade’s fight for democracy and change. The moment we are in provides ample space to re-engage the masses of our people and reaffirm that the tragedies of 1979 at Lancaster will not be repeated. Such a call requires us to look at the transitional arrangement not as a seat of compromise, but a platform to advance the frontiers of the fight for freedom and the end of tyranny. So the next time Mugabe’s kind tell us that there will be no ‘mass party’, we should be able to shout back for generations to hear that writing a constitution is not dinner for three.

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* Tapera Kapuya writes in his personal capacity.
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