Alex Magaisa

Alex Magaisa is a senior lecturer at the Kent Law School. Prior to joining KLS, he worked for the Jersey Financial Services Commission, the financial services regulator in Jersey. His research interests lie mainly in financial services regulation, law of corporate groups and the effects of IP Laws on developing countries. Alex takes a keen interest on legal and political issues pertaining to Zimbabwe and Africa generally.

The politics of constitution-making in Zimbabwe

Draft from Kariba

THE waters of Lake Kariba are both beautiful and treacherous.

For much of the year, the land on which it rests is enveloped in a heavy coat of heat. The sun is the faithful messenger of both a glorious sunrise and a beautiful sunset.

You sail on the boat and if you are lucky, you might catch some big fish. Yet you also maintain a watchful eye, for the waters house big beasts and reptiles, which do not take easily to intruders.

It is a perfect background for reflection. You marvel at this symbol of progress in a bygone era but you also think about the lives that were violently transformed when the man-made barrier at Kariba gorge caused the mighty Zambezi to bulge and form this expansive mass of water.

It is here, unbeknown to the locals, that a group of politicians gathered to solve their differences. They failed. But they agreed on an important document – a Draft Constitution of Zimbabwe. They called it the Kariba Draft.

It is this Kariba Draft, we hear, that will form the basis of the Parliament-led constitution-making process in Zimbabwe.

Civil Society Protest

Civil Society, led by the National Constitutional Assembly (NCA), is up in arms. At the heart of their protest is that the proposed process is driven by political elites and fails, therefore, to satisfy what they refer to as a ‘people-driven constitution-making process’.

Civil Society is right to raise concern on this matter and for good reason: it is that Zimbabweans must avoid repeating past errors of taking a political compromise between feuding adversaries as the founding covenant of their nation.

A Constitution should ideally outlive present-day politics; indeed, it should outlive political actors of the day. It is an enduring covenant between the governors and the governed – not just the present but also future generations. It is an embodiment of the nation’s values, ideals and aspirations of a nation.

However, if this is to be achieved, the Zimbabwean public ought to be more vigilant. It is this spirit of vigilance that causes this hand to express these reflections on this matter.

Elites and the Constitution

First, at the centre of emerging contest between Civil Society and the Inclusive Government is that the process must not be controlled by elites but instead, must be ‘people-driven’. But this rhetoric appears to me to conceal more than it reveals.

The bottom-line is that despite the rhetoric, it is in fact the elites who invariably drive the Constitution-making process. There are two kinds of elites seeking control of the process – political elites and civil society elites

Colleagues in Civil Society will contest this characterisation, because no one who purports to be working with the so-called ‘grassroots’ wants to be associated with elitism – a dirty word, it seems.

To be sure, the main drivers of the constitutional reform process, which in substance emerged more forcefully in the late 1990s, were a group of civil society elites who gathered to form the NCA when they saw the problem of monopolisation of Constitutional power by the political elites.

Yet when you listen to politicians, they also lay claim to the status of being the true representatives of the ‘grassroots’ by virtue of election to Parliament. Indeed, reading through the recently announced STERP economic revival plan, the government makes several references to phrases such as ‘people-driven’, people-centred’ etc, signalling their belief that what they are doing is for and by the people.

To my mind, the Zimbabwean public needs to understand that they are dealing with elites on either side of the coin and the battle could become the proverbial fight between elephants, whilst the grass suffers. The important thing is to give substance to this rhetoric and for the public to be wary of all actors.

Refuse Political Compromise

Second, Zimbabwe must eschew the practice and belief that the Constitution is some kind of political pact between the existing political parties. A quick perusal of the current version of the Constitution in the aftermath of Constitutional Amendment No. 19 demonstrates why this is dangerous.

The Constitution has become so mutilated it even states office–bearers by name (“There shall be a prime minister, which office shall be occupied by Morgan Tsvangirai”). In other words, strictly speaking, to remove them from office would require another Constitutional amendment.

Indeed, one of the main shortcomings of the Lancaster House Constitution adopted at independence in 1980 was that it was a political deal which sought to accommodate political actors of the time. The compromises which even maintained racial divide by creating a White Roll and a Common Roll in elections were divisive, not conducive to common nation-building and unsustainable in the long run.

This is partly the reason why the Kariba Draft, created in the context of negotiations between the feuding Zanu PF and the MDCs, does not provide the right platform for constitution-making.

Scrutiny of the Written Word

Third, a major but understated pitfall in the Constitution-making process is that at the end of the day a written Constitution bears the hand of the experts, both political and civil society elites. People are often told that they will ‘write’ their own Constitution – they must distinguish this rhetoric from the reality that the actual writing will be done by experts – the elites.

To my mind, Civil Society ought to go beyond this veil of ‘people writing their own constitution’ by having practical measures on monitoring those who do the actual drafting. It requires careful scrutiny because just one word can change the whole meaning of a provision.

Civil Society’s role would be to ensure that each part and each provision is scrutinised to ensure it reflects the agreed resolutions. If not, the public has to know so that when they exercise their rights at the Referendum, they make informed decisions.

Referendum and Politics

Fourth, since the ultimate form of control that the people have over the new Constitution is the Referendum, there is need to make sure a distinction is drawn between political elections and the Constitution. Civil Society elites’ great challenge is that they will have to compete against the combined political elite.

Whilst Civil Society is right to claim victory over the ‘No’ vote in the 2000 Referendum, there is also a credible argument that the vote was also a political rejection not just of the Constitution but the then Zanu PF-led government and its kind of politics.

At the time, Civil Society had on its side the fledgling but powerful political clout and pull provided by the MDC. Civil Society has lost this powerful political constituency to the Inclusive Government. The risk has to be that notwithstanding legitimate concerns of Civil Society elites about the Constitution, voters may be influenced more by political allegiance to the parties in government.

If it comes to that, the Civil Society elite may find it hard to out-compete the political elite over the new Constitution. For their part, the people of Zimbabwe need to make this distinction clear and regard the constitution-making process as sacrosanct and beyond party politics.

Protecting the Constitution

Finally, it is important to ensure that the Constitution is protected once adopted. In other words, focus should not simply be about the constitution-making process but also in relation to its life. If we have learned anything over the last 29 years, it is that a Constitution that provides an easy path for amendment is always at the mercy of those who wield political power.

Surely, if a referendum is necessary for the adoption of the new Constitution, it follows that any changes to it must be authorised by the people. Where Parliament can amend the Constitution with ease, there is virtually nothing to stop politicians from conceding to the demands of the people simply to get a new Constitution adopted through a Referendum but then immediately change it to the Kariba Draft or other versions that suit their political interests.

An added benefit of making sure that the Constitution is amended with the approval of the people who made it is that our courts of law will become accustomed to interpret it not simply as the will of Parliament but to regard it is a sacrosanct document that houses the will of a nation.

The courts will be confident that they can interpret the Constitution without the spectre of their decisions being reversed by government-concocted Constitutional reforms as has happened in the past.

What we got from the shores of Kariba may well be a good document. But as beautiful and treacherous those waters are, it is understandable that Civil Society views it with caution. Zimbabwe does not need another compromise to meet the interests of present-day political actors.

The content of the Constitution is as good as the process of making it. Active participation of the people ensures that the Constitution grows in the national consciousness.

Civil Society is right to be wary, but it needs to go beyond the amorphous rhetoric and attend to the practical aspects of constitution-making to ensure that what emerges is a truly founding document that is securely safeguarded for generations to come.

Alex Magaisa is based at, Kent Law School, the University of Kent and can be contacted at wamagaisa@yahoo.co.uk