The Zimbabwe Standard (Harare)
November 21, 1999
By Itayi Viriri
Harare - Several international constitutional experts who attended the international constitutional conference last week have expressed their suspicion that a draft constitution already exists, rendering their presentations a waste of time.
Speaking to The Standard yesterday, Professor Andre Thomashausen, the director of the Institute of Foreign and Comparative Law at Unisa, said there was a general impression among the experts present that a constitution had already been written and that the conference was just an attempt to lend legitimacy to the whole constitution making process. Thomashausen said: "We never actually got to see the actual draft presentation,
and strangely enough, we were never asked what we could contribute and were instead, given tasks, some of which were outside our jurisdiction." Questions were also raised over why the results of the outreach programme had not been fully publicised, giving the whole exercise the air of transparency it needed.
"The other impression we got from some of the commissioners, was that President Mugabe would accept the draft, implying that it had probably been proven to be suitable to the needs of the executive, which in turn, supports our suspicions a draft constitution already exists," he said. The apparent lack of more public information and education on issues regarding the referendum also raised eyebrows among the experts.
A national referendum is due to be held once President Mugabe has approved the draft
constitution. Willy Mutunga from the Kenyan based Citizens Coalition for Constitutional Change, believed the whole legitimacy of the constitution- making process would be found wanting if the referendum's objectives were not clearly explained to the public.
Sharing the same opinion, Thomashausen, who is a professor of law, said: "Who decides on the referendum questions and what would be its mandate, and how will the people take part in the referendum if they are not well versed in its mechanisms?" Several commissioners regretted that the National Constitutional Assembly (NCA) was not part of the process. "The commissioners were of the opinion that since the NCA had also put
in a lot of time and resources, it was likely that they had something positive to share with the commission," said Thomashausen.
He also expressed earlier misgivings that the one week given to drafting the constitution was far too short: "Namibia actually needed about six months to put together a draft constitution and, as a matter of fact, I am very surprised that one of the members of the team that drafted that constitution was not invited to this conference." He was referring to Justice Chaskalson, the Judge President of the Constitutional Court in South Africa,
who is regarded as one of the leading experts on constitution making on the continent.
Thomashausen, however, commended the outreach programme, which he said was unique in that it set the basis for a truly genuine and home-grown
"The problem in Africa has been that most of the constitutions are just blueprints of western constitutions and as such usually ignored the real needs of the people." Many observers say they believed the wording of the outreach reports rather curious and easily subject to manipulation and misinterpretation. For example, there already has been much debate on whether the executive presidency should be retained, or whether a ceremonial presidency with a prime minister was what the people wanted.
"It seems the people want a much weakened presidency and all 10 provinces seem to agree on that, and at least six favour proportional representation," Thomashausen said. It was noted that whilst the people of Zimbabwe had willingly participated in the process, many were sceptical as to whether some of their more radical suggestions and recommendations would be accommodated in the final draft.
Some experts wondered why they had even bothered to come at all, since foreigners were warned not to meddle with Zimbabwe's affairs, according to The Herald's interpretation of the speech delivered by Commonwealth secretay- general, Chief Emeka Anyaoku on Thursday. Said Thomashausen: "Why did you invite us here if you think we are meddlers in the affairs of your country.
It is rather curious that the paper chose only a tiny segment of Chief Anyaoku's speech and ignored instead, the wider and more important message on what a good constitution encompassed."