@DavidColtart’s views regarding the Constitutional Referendum 16 March 2013

Posted on 16/03/2013

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David ColtartI have been asked by many people regarding my views on the proposed new draft Constitution and how I think people should vote.

At the outset I need to acknowledge that I have had major concerns about both the process in drafting, and the content of, the new constitution. Without going into detail the process was undermined because it was politicized and that situation was compounded by the fact that key civic organisations boycotted the process for reasons I understood but nevertheless regretted. In short that resulted in Zanu PF’s views having a disproportionate influence on the final content of the document.

Mainly because of this flawed process the final document is itself flawed in 3 critical areas.

Firstly it is flawed because the proposed constitution does not adequately cater for the fact that man cannot be trusted with power. One thing the American founding fathers understood well is that if men are given unfettered or excessive power they have a natural tendency to abuse it, and to counter this they built in all sorts of checks and balances. Sadly although this document is an improvement on what we have at present (for example Executive powers in appointing judges, declaring states of emergency and appointing Provincial Governors have either been greatly reduced or removed altogether) it still gives far too much power to the executive.

Secondly the new constitutional order is going to be very expensive for a country which is already unable to adequately fund basic social services. The new Parliament will be far too large and expensive and whilst the devolution clauses are wonderful the number of provinces and size of provincial governments are going to make the attainment of this goal very expensive.

Thirdly the clauses on land are blatantly racist and what is more will inhibit investment in future. At the very least I had hoped that a line would be drawn on land seizures so that one could say that the historical injustice had been dealt with and the country could move forward. Sadly that did not happen and it is clear that white people under this constitution can never have security in their ownership of agricultural land in future because the new Constitution allows any agricultural land to be taken from them in future simply because they are white. Such a racist clause has no place in any democratic constitution in my view and will also deter foreign investors from investing in Zimbabwe’s agricultural sector in future.

So given these concerns does it follow that overall the new Constitution is bad and should be rejected? Overall my view is that despite these obvious and serious flaws the new constitution is a marked improvement on the current constitution.

I do not have the time or space this evening to detail all the positive aspects so I will have to give a few examples. The citizenship clauses are greatly improved and people born in Zimbabwe, one of whose parents was a citizen at the time of birth, will be allowed dual citizenship. Likewise those who were born in Zimbabwe to parents from the region will have an absolute right to citizenship. For the first time there are clauses which specifically protect the rights of children and the vulnerable. For the first time there will be devolution of power to provinces. The Bill of Rights will be greatly enhanced with important clauses in for the rights of detained people. There are also a myriad of other important changes which will enhance the rights of people and lessen the power of the state and the executive in particular.

And even if one analyzes my three areas of concern those need to be put in context. The fact is that the powers of the President have been reduced, albeit not as much as I would have hoped. The President can no longer, for example, appoint Judges and Heads of Commissions almost at will – Parliament will play a major role in those appointments. If the President declares a State of emergency that emergency will end within 14 days unless he can get 2 thirds of Parliament to agree. Having lived through and practiced law during the State of Emergency we had in the 1980s I know how important that clause is alone. And there are other clause which reduce executive power and spread it amongst other arms of government.

And whilst my concern about the size and expense of government is valid one has to put that in the context of how much it would have cost our Nation had we not gone through this process and the country had collapsed. I know as Minister of Education that had the country continued the trajectory it was on in 2008 our entire education system would have failed completely, and I stress both government and private. Government schools had stopped functioning almost totally and private schools were barely hanging on when the inclusive government took office. And that applies to almost every sector. This constitution is the product of a non violent attempt to resolve our problems peacefully and to stop that slide into total anarchy and collapse – the price of that was compromise. I believe that the financial cost of that compromise is far less than it would have been had Zimbabwe become another Liberia or Somalia, ie a failed state. In other words we must accept that this is a cost worth paying. And we must also remember that some of the size of the new Parliament has been brought about by a laudable objective, namely to ensure that we bring women into governance. Aside from respecting women’s rights I believe this measure may result in better chances for peaceful resolution of conflict in future in Zimbabwe with the amount of testosterone being diluted in the corridors of power!

And then regarding the land clause the fact is that the objectionable clause is virtually identical to the one in the existing constitution, i.e. it is no worse than what we already have. Furthermore, and in any event, I believe that the land issue and the rights of the dispossessed will ultimately not be resolved through constitutional clauses but as a result of economic necessity. In particular the necessity to ensure that we use all our nation’s skills to grow as much food as possible will ultimately force a rethink on land policy. This will not happen overnight, so is little consolation to those who have lost so much and to those who need to be fed, but ultimately I believe that sanity will have to prevail. Sadly there is still too much bitterness and poison in our body politic for this matter to have been satisfactorily addressed in the new Constitution at this moment in time. So as bad as these clauses are they should not in my view be allowed to derail the entire process.

At the end of the day for all the obvious flaws in both the process and content the draft offered to the Zimbabwean electorate is an improvement on what we have. In the absence of any viable non violent alternative I hope that despite these flaws the Zimbabwean public will vote yes tomorrow.

I am aware that there are some people who I respect from a variety of backgrounds who are urging a no vote. Whilst I understand the nature and gravity of their concerns and objections they must ask themselves what a no vote will result in. In my view it will play into the hands of hardliners who ironically did all they could to derail the process because they fear the positive effect of the good features in this new constitution. A no vote will result in Zimbabwe retaining its present constitution with all its objectionable clauses, including the identical land provisions which are so racist. But that will also mean that there will be no devolution of power, no dual citizen rights, no rights regarding children and in general the retention of the current deficient Bill of Rights. It will also mean that the President can declare a State of Emergency without Parliament being able to do much about it, and to exercise power in a wide range of matters as is the case now. A no vote will also plunge Zimbabwe into another period of uncertainty and possible political conflict. It will mean that our experiment in ending our penchant for settling our political differences using violence has failed.

One may ask what the “Yes” is for – it is in essence a yes to breaking the cycle of violence which has afflicted our nation for so long – a yes to taking an important step forward towards our ultimate goal of turning Zimbabwe into a vibrant democracy. No sane person would ever argue that this is the end of the road. In many respects it is simply the end of the beginning.

Accordingly my prayer is that all Zimbabweans will turn out tomorrow and vote “Yes”.

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