Reflections on the GNU and the 2013 Constitution
Book Excerpt from: In Search of the Elusive Zimbabwean Dream, Volume III (Ideas & Solutions)
By Professor Arthur G.O. Mutambara
My biggest regret about our participation in the GNU is that we, coming from the opposition parties – MDC-T and MDC-M – into government, were naive and unstrategic.
We lacked the Machiavellian instinct and disposition.
We honestly but naively pursued the business of running the country, salvaging the economy and creating an enhanced socio-political dispensation.
As a collective political leadership, we should have taken time to apply our minds to the existential question:
“What next after the GNU?”
We did not address this matter.
This was suicidal.
On the other hand, our colleagues from ZANU-PF were not interested in saving or serving the country.
They took the GNU period as an opportunity to regroup and strategise, with the objective of offloading us from the government as soon as they could.
Their target was the next harmonised elections in 2013.
Pure and simple.
They paid lip service to the GPA and GNU. They tolerated the constitution-making process as long as it did not disadvantage them in any way.
Our ZANU-PF colleagues were not interested in any of the political, electoral, national healing, security sector and media reforms stipulated in the GPA.
This brings me to our second shortcoming.
We did not concentrate on these reforms or put them at the centre of our activities right from the beginning of the GNU.
While we knew that these changes were critical in ensuring that the next elections were free, fair and credible, leading to undisputed outcomes, we did not walk the talk.
It was a tragic lack of judgement.
We only started making uncreative noises and throwing shameless tantrums about the need for reforms towards the end of the GNU, which was to terminate on 29 June 2013.
It was too late.
Shame on us!
Even SADC and South Africa could not help us.
However, extenuating circumstances arose from how the GPA was drafted.
This led to poor enforceability and ineffective implementation of its provisions.
A fatal flaw of the GPA was the absence of an explicit and binding dispute resolution clause or provision.
Such a legal instrument or mechanism could have helped us settle some of our many disagreements (the persistent GPA outstanding issues) over the interpretation and implementation of the GPA.
Then, we could have made considerable progress on the reforms we needed before the 2013 polls.
Nevertheless, as the MDC parties, we were part of the GPA drafting.
Hence, we take responsibility for its inadequacies and deficiencies, which we should have attended to during the GPA negotiations and drafting.
This negligence constitutes a third failure on our part.
Guilty as charged.
Our fourth transgression is that some of us started enjoying the trappings of power due to the association with the ZANU- PF grandmasters of looting (our partners in the GNU).
Cases of corruption, primitive accumulation, ostentatious consumerism, conspicuous consumption and lavish lifestyles became commonplace among some former champions (MDC Ministers) of democracy, accountability, integrity, probity, anti-corruption, transparency and good governance.
What a shame!
Yes, the GNU was a great experience and an educational opportunity for those of us who were part of it.
It also gave the people of Zimbabwe a breathing space – some respite from the unimaginative misrule and ruinous misgovernance of ZANU-PF.
Yes, we stabilised the economy and improved our people’s lives.
We worked on fundamentals such as a shared national vision, a national brand, industrial policies and mining law reform.
Indeed, we delivered a New Constitution – the 2013 National Constitution.
In fact, we showed the country how an able and united leadership could change the fortunes of a nation.
We demonstrated the efficacy of an inclusive Team Zimbabwe approach.
Indeed, the GNU amply made the case for a three-way Team of Rivals.
However, when all is said and done, our GNU intervention was like a flash in the pan – an honourable but unsustainable, and hence largely insignificant exercise.
With hindsight, we could have achieved much more and impacted the Zimbabwean political narrative better.
My regrets articulated in the preceding discussion are the basis of my conclusion.
We could have done better had we been more vigilant, strategic, savvy and, yes, Machiavellian.
Reflections on the 2013 National Constitution
With respect to the Constitution of Zimbabwe adopted in 2013 – as I write this book in 2023, 10 years later – it is imperative that I do some soul-searching.
Is it a good constitution?
Was the NCA correct in their reservations about the charter?
What does that which has happened in the past six years – such as the amendment of the Constitution to expand the President’s appointing powers, the efforts to change the devolution provisions before they are even implemented, and many other contradictions – mean?
First of all, it is vital to observe that the 2013 National Constitution did not solve the matter of disputed elections in Zimbabwe.
The outcomes of our general elections were challenged in 2013 and 2018 [and, of course, 2023].
That’s a terrible indictment of the 2013 Constitution.
Also, as I reflect and write in 2023, aligning some Zimbabwean laws (Acts of Parliament) with the 2013 National Constitution is still a significant concern.
For example, there is a strong view that Section 22 of the Criminal Law (Codification and Reform) Act, under which 21 citizens, between January and August 2019, were charged with “subverting constitutional government”, is not aligned with the 2013 National Constitution.
Furthermore, on 15 August 2019, the Zimbabwe Republic Police (ZRP) issued a prohibition notice against the holding of the MDC Alliance’s demonstration the following day in central Harare, in terms of Section 26 (9) of the Public Order and Security Act (POSA), Chapter 11:17.
Clearly, POSA is not in sync with the 2013 National Constitution.
Several such laws need synchronisation with the national governance charter.
POSA’s successor law – Maintenance of Peace and Order Act (MOPA) – enacted in 2019, is equally an affront to Zimbabwe’s 2013 National Constitution.
MOPA is just as pernicious as POSA
Same difference.
In some cases, the provisions of the Constitution are not self-evident.
There are always disputes that end up with lawyers proffering conflicting interpretations.
A people-driven constitution’s provisions should be explicit, easily understood, and interpreted by ordinary people.
An elitist document with impenetrable provisions is of limited efficacy.
During the constitution-making process, I had personally pushed for the establishment of a new constitutional commission – the Zimbabwe Civic Education Commission – whose primary function was to create awareness and educate the citizenry about the National Constitution.
This could have helped immensely in terms of enhancing ordinary people’s grasp of the contents of the country’s governing charter.
However, somehow, the proposal fell through the cracks.
There is another instructive aspect of the 2013 National Constitution that deserves commentary – the issue of protection from deprivation of private property.
As young Marxist-Leninist revolutionaries in the late 1980s (1987 to 1990) at the University of Zimbabwe (UZ), Section 16 of the Lancaster House Constitution (Zimbabwe’s founding charter) was our key target.
This provision sought to protect institutions and individuals from the “deprivation of private property.”
As radical student leaders, we were totally and palpably incensed by this section.
We used to eloquently declare:
“Section 16 of the Constitution of Zimbabwe must be abolished.
It is an affront and an obstacle to our socialist revolution, driven by the workers, peasants and organic intellectuals.
The provision protects the capitalist system characterised by unbridled exploitation of our people by the local bourgeoisie and international capital.
We seek to seize and smash this moribund and parasitic system and replace it with an egalitarian socialist society.”
That is how we used to flow at the peak of our radicalism.
Indeed, we were fiery hell-raisers in pursuit of the revolution.
Well, fast forward to the making of the 2013 National Constitution.
We have all sold out!
The former revolutionaries in ZANU-PF and the MDC parties are not concerned about social revolution.
We unashamedly adopt Section 71 in the new charter, which is more conservative than the old Section 16.
Yes, Section 72 (a) of the 2013 National Constitution allows for the appropriation of private property, but this is strictly limited to agricultural land.
There we have it.
The local bourgeoisie and international capital are quite safe under the new constitutional order.
This is why the Western governments and their donor agents gladly and enthusiastically supported our COPAC process.
The only civil society group that challenged Section 71 and defended the case for social revolution is the International Socialist Organisation (ISO), whose key leader is the inimitable and indefatigable Munyaradzi Gwisai (Former UZ SRC Secretary General 1989-1990, when I was the President).
However, Gwisai was miserably alone on this mission impossible.
The inclusion of Sections 71 and 72 is one of the critical reasons that ISO, which fully participated in the constitution-making process, decided to join the NCA and campaign for a “No Vote” against the 2013 National Constitution.
Of particular contention is paragraph 3(a) of Section 72, which states that:
“When agricultural land is compulsorily acquired for a public purpose, no compensation is payable in respect of its acquisition, except for improvements effected on it before its acquisition.”
This clause provides for compensation for the former colonisers under the guise of so-called improvements.
Indeed, the revolutionaries have sold their souls for a few pieces of silver.
As radical student leaders at the UZ in the late 1980s, we would never have accepted this treachery.
Not a chance!
Our position was that there should be no compensation for colonisers.
Period.
Not even for improvements!
Several clauses from the rejected 2000 Draft National Constitution find their way into the 2013 National Constitution.
Specifically, the land clause is virtually the same, and the contentious part of compensation being paid by the former colonial power is retained.
However, unlike the 2000 National Referendum vicious fight, in 2013, there is no longer a massive conflict over the matter.
This is despite Western powers and big business seeming to have accepted that the land reform programme is irreversible.
However, the quid pro quo is that ZANU-PF conceded in section 71 not to extend indigenisation and economic empowerment to other property forms such as mining, manufacturing, and finance.
So, in a way, the 2013 National Constitution marked the end of ZANU-PF’s radical economic nationalism.
We registered some improvements in the 2013 charter over the amended Lancaster House document.
There is a significant advancement in women and gender empowerment through such provisions as Section 3 on founding values of gender equality; maternity employee rights and equal pay for equal work (Section 65); prohibition of gender discrimination whether on the grounds of tradition, custom, pregnancy or marital status; and equality of women and men in all endeavours and spheres of life including economic, social and political.
Gender-affirmative action is recognised through Sections 56, 80, 17, and 24 and women’s Proportional Representation seats.
All these were tremendous advances on the Lancaster Constitution that did not even recognise gender discrimination and, in fact, allowed it based on custom and tradition.
There are significant gains in terms of labour and socio-economic rights.
Section 65, for the first time, constitutionalised labour rights such as those to fair labour practices, safety and fair wages, strikes, collective bargaining, and the right to organise (including for civil servants).
However, Section 200 severely restricts the political rights of civil servants from active political party participation.
As the MDC parties, this is an acute failure on our part as this provision potentially constrains a significant portion of our support base, such as teachers and nurses in rural areas.
The section should have been couched to restrict senior civil servants, not the rank and file.
Unlike the Lancaster House Constitution, the 2013 document recognises socio-economic rights like education, shelter, healthcare, the environment, children’s rights and gender parity.
However, the major limitation is that these rights are placed as non-justiciable provisions in Chapter 2 rather than in the Declaration of Rights in Chapter 4.
Furthermore, there are neither established enforcement mechanisms nor explicit funding provisions to make these rights a lived reality.
Although soon after adopting the 2013 National Constitution, we are overly enthused by the virtues and strengths of our product, time – the magician – has allowed for a more objective and detached assessment.
It is now 2023, and the starry-eyed appraisals have given way to soberer reflections.
It must be emphasised that the ring-fencing of private property, in a very conservative property clause – Section 71 – militates against any attempts to pursue a redistributive economic agenda.
As explained earlier, in the 2013 National Constitution, we abandon any pretence of commitment to social revolution.
We have clearly and unambiguously sold out.
The biggest weakness of the 2013 National Constitution is that it merely tinkers with and superficially curbs Zimbabwe’s imperial presidency, essentially retaining it intact.
The provision for a vote of no confidence and retention of decisive presidential power in appointments of key state positions, such as the judiciary and commissions, including the Zimbabwe Electoral Commission (ZEC), can illustrate this.
A sitting President who is a candidate in an upcoming presidential election has total and unfettered authority to appoint the referee of the polls - ZEC.
This cannot be right.
It is a distinct weakness of the 2013 Constitution – a structural flaw, indeed.
Clearly, the foundation and enabler of fraudulent and disputed elections in Zimbabwe lie squarely in the 2013 National Constitution.
As if the perverted and undesirable retention of an all-powerful presidency is not enough, in 2020, ZANU-PF seeks to further embellish and enhance these egregious powers through the Constitution of Zimbabwe Amendment (No. 2) Bill.
In fact, they embarked on that journey much earlier by enacting the Constitution of Zimbabwe Amendment (No. 1) Act, 2016.
The ZANU-PF mandarins are insatiable in their pursuit of an imperial presidency in Zimbabwe.
Another worrisome democratic deficit of the 2013 National Constitution is the retention of the first past the post electoral system.
The charter failed to introduce a fully-fledged Proportional Representation (PR) system as in South Africa.
The limited PR introduced for the Women’s Quota and the Senate [and later the Youth Quota] is highly inadequate.
That we failed to push for comprehensive PR successfully reflects incorrigible poor judgement on our part as the MDC parties, particularly the MDC-M – our party.
Being a small party (the smallest of the three GNU partners), the PR system should have been one of our critical non-negotiable demands.
Only through the PR system can small and medium-sized parties retain and defend a foothold in Parliament. We see this with the Economic Freedom Fighters (EFF), Democratic Alliance (DA) and other minor parties in South Africa.
For the entire democratic opposition in Zimbabwe, the PR system is the only guaranteed and surest way of stopping ZANU-PF from getting a two-thirds majority in Parliament.
Such a majority can be used to subvert the 2013 National Constitution, as we witnessed ZANU-PF brazenly doing with the two constitutional amendments discussed above.
One target of a ZANU-PF two-thirds majority is removing the term limits for the national presidency!
Emmerson Mnangagwa's eyes are set on that one.
Yes, as the MDC parties, we misfired and manifested contemptible dereliction of duty on PR.
A further major weakness of the 2013 National Constitution was the judiciary entrenchment provisions protecting the existing politically compromised bench of Chief Justice Godfrey Chidyausiku, thus making it both the Supreme Court and Constitutional Court for a specified period.
This entrenchment was a key enabler and sustaining pillar of the Harare regime.
Why?
Because it guaranteed that ZANU-PF would continue to enjoy the services of a captured judiciary to do its bidding for it.
This is of particular significance concerning the resolution of disputed electoral outcomes.
Once formally adopted, the constitutional arrangement is difficult to challenge or attack.
Why?
Because constitutionalism and the rule of law then demand adherence to it.
Indeed, the seeds of a captured judiciary were sown during the crafting of the 2013 National Constitution.
It turned out that ZANU-PF learnt well from the best – the Rhodesians and British – that a constitutionally protected inherited judiciary from the preceding state is vital in safeguarding the elites’ entrenched political and economic interests.
We, in the MDC parties, were outmanoeuvred on this one, as well.
(To be continued next week)
This is an excerpt from the book: In Search of the Elusive Zimbabwean Dream, Volume III (Ideas & Solutions)
By Professor Arthur G.O. Mutambara
