1.

Brief background to constitution-making in Zimbabwe Zimbabwe became independent on 18 April

1980. The constitution that came into force on that day was a product of negotiations between the
Norbert Kersting: Constitution in Transition: Academic Inputs for a new Constitution in Zimbabwe. 7
internal settlement government of Bishop Muzorewa and Ian Smith and the national liberation
movement led by Robert Mugabe and Joshua Nkomo. The negotiations were held in 1979 and chaired
by the British government. They were conducted at Lancaster House in London and accordingly the
Independence and chaired by the British government. They were conducted at Lancaster House in
London and accordingly the Independence Constitution is referred to as the 1979 Lancaster House
Constitution. This remains the current constitution but it has been amended 19 times. All the 19
amendments made to the Lancaster House Constitution have been piece-meal and have been effected
by Parliament. There has been no comprehensive reform of the Zimbabwean Constitution since 1980.
An attempt to overhaul the constitution was made in 1999-2000. In May 1999, the Robert Mugabe
government appointed a 400-member Constitutional Commission to review the Constitution. This
Commission was boycotted by a coalition of civil society organizations under the umbrella of the
National Constitutional Assembly (NCA), an NGO which had been formed in 1997. The NCA criticized the
Constitutional Commission as partisan and lacking independence. When the Constitutional Commission
presented its draft constitution to a referendum in February 2000, it was rejected. The Mugabe
government accepted the verdict and the draft constitution was shelved. All elections that followed the
referendum of 2000 have been violent. It is therefore not surprising that the period from the 2000
referendum to the 2008 elections was characterized by vigorous pressure for a new constitution.
Inevitably, in the GPA that created the inclusive government, the making of a new constitution took
centre stage. The GPA provides for the making of a new constitution in its article 6. The process is led by
a Parliamentary Select Committee with its membership 8 drawn from the three political parties who
signed the GPA and who are represented in Parliament. The Parliamentary Select Committee is required
to carry out consultations with the public and to involve civil society in the consultation process. It must
produce a draft constitution which will be discussed in Parliament before being referred to a
referendum. By the time of the Academic Conference in October 2009, the Parliamentary Select
Committee had convened its first Stakeholders Conference in July 2009 and was planning the second
Stakeholders Conference for mid February 2010. The first Stakeholders Conference had been disturbed
by opponents of the process on the first day but was able to decide on the 17 thematic committees that
were supposed to be formed and chaired by a Member of Parliament. At the time of the conference,
public consultations should have started already but the process had been delayed for several reasons.
One instructive feature about the proposed constitution making process in Zimbabwe is the availability
of complete constitutional drafts, reflecting various political persuasions in the country. It is critical that
the current process be undertaken with these drafts being given full consideration. There are four main
documents that fall into this category as follows: Current Lancaster House Constitution (1979) This is the
1979 document agreed at Lancaster House. It came into force on 18 April 1980. It has been amended 19
times. In 1980, it provided for a parliamentary executive system of government headed by a Prime
Minister. There was a bi-cameral legislature. The head of state was a non executive president. Some
provisions were entrenched, such as the protection of private property which was designed to protect
the minority white commercial farmers. 9 In 1987, this framework was changed with the introduction of
the executive presidency. Entrenched clauses expired in 1990 and in their place new provisions were put
for example such that diluted private ownership of land. Constitutional Commission Draft (2000) This is a
draft constitution which was rejected in the 2000 referendum. It retained the executive presidency but
with an executive Prime Minister appointed by the President. It introduced a two term limit for the
Presidency. The bill of rights was not expanded but weakened further any provisions protecting private
ownership of land. National Constitutional Assembly Draft (2001) The NCA was formed in 1997 as a civic
organization campaigning for the writing of a new constitution. As a result of its opposition to the
Constitutional Commission of 1999-2000, it initiated a parallel process of collecting the views of
Zimbabweans on a new constitution. It produced its draft in 2001. The NCA's main objection to the 2000
draft of the Constitutional Commission was that it retained an all powerful president who was not
different from the executive presidency introduced in 1987. The NCAdraft provides for a parliamentary
executive headed by a Prime Minister. It has a Bill of Rights covering both civil and political rights as well
as social and economic rights. Kariba Draft (2007) This is a draft constitution that was done by ZANU (PF)
and MDC before the 2008 elections. It was finalized and signed at Kariba on 30 September 2007. This is
the Draft which is “acknowledged” by the GPAbut there are varying interpretations as to the meaning of
that acknowledgement. The Kariba draft closely follows the 2000 Draft of the Constitutional
Commission. 10 2. Somegeneralaspectsaboutconsultationprocessesinconstitutionmaking The following
points are worth noting about consultation processes in constitution- making: Inclusiveness of civil
society: Civil society should be included to give the process broad support and legitimacy. Inclusiveness
of civil society: Civil society should be included to give the process broad support and legitimacy. Expert
committees: It is important to have a committee of experts to analyze inputs from the public and
convert them into constitutional principles. A committee of experts will also synthesize the existing
drafts. Culture of compromise: There must be a culture of compromise and the main players in the
constitution-making process must be ready for compromises. Aconstitution is not there merely to record
the views of the majority. It must reflect a wide variety of opinions and perspectives. De-politicization: It
is important that constitutional principles be divorced from narrow political party interests. Deadlock
breaking mechanisms: Deadlocks are inevitable in constitution making processes. In order to prevent
deadlocks, mechanisms and communication channels must be established and utilized. This requires
political will and commitment from the major stakeholders. Deadlock – breaking mechanisms usually
involve mediators and the spirit of reconciliation. Monitoring: Institutions for monitoring the outreach
process are required. The monitoring process must be alive to the existence of different views and
opinions and must strive to ensure that a broad range of views and opinions are taken into account. 11
12 Interim Constitutional and Sunset Clauses: This could be a strategy not to envisage a final
constitution, but to agree on an interim one, with the option of reconsidering certain aspects. It seems
to be much easier to agree on a constitution that leaves room for a revision at a later stage. 3. Summary
of workshop deliberations In the following only some main points of the discussion during the
conference are highlighted. It is important to note that this overview reflects the editor's perception and
might be selective. Following the overview, the papers presented by the authors at the conference are
printed in full and, thus, allow for a much deeper analysis of the issues. 3.1 Bill of Rights Most
constitutions utilize Bills of Rights to correct or prevent injustices and to bring a better life for all citizens.
The South African Bill of Rights is viewed as a model. It accommodates social and economic rights. The
South African Constitutional court has developed an admirable jurisprudence that has given meaning to
social and economic rights. Zimbabwe must consider following the South African model. In drafting the
Bill of Rights in the Zimbabwean constitution, the points to be considered should include: Civil and
political rights: There must be effective remedies of these rights. They should be fully justiciable. It is
advisable that there be no specific provision for or against the death penalty. Freedom of expression
must be at the heart of civil and political rights. Social and Economic rights: A constitution may include
socioeconomic rights such as labor relations, environmental rights, land reform, housing, healthcare,
food, water and social security. Locus Standi and Access to the courts: The bill of rights is meaningless if
aggrieved persons have no easy access to the courts to enforce their rights. It is important for the
constitution to provide Locus Standi to aggrieved persons so as to have easy access to the courts. In
addition to the Constitutional Court, the High Court must also have jurisdiction in Bill of Rights cases.