A Feminist’s views on the draft Constitution
"During elections we women face a lot of violence. When we hear of elections in this area we are not happy, we are sad because we know what they bring. Many of us get beaten up and raped. Our homes are destroyed and our husbands are maimed beyond healing. This is why we were very active in the Constitution making process. We thank the Women’s Coalition of Zimbabwe for bringing us information on the constitution making process in good time before the government started gathering our views. We still feel that there must be a clause in the constitution that speaks specifically about election violence and party violence to cushion women… As women we need to include it in the Constitution that violence should be condemned and all responsible be imprisoned. We want stiffer penalties for all perpetrators. Election rules must be in the constitution, and we must be active to ensure that. We must be able to take part in all constitution meetings, and in the referendum too as part of our peace building. We also take part in educating other women about the constitution and the DVA."
While most quotas, including women and representatives of the 3 political parties in the Zimbabwe Government of National Unity (GNU) agree that Zimbabweans should vote “Yes” in the March 16 referendum, they do not reach consensus on why the draft Constitution (the draft) should be endorsed. The other quotas that advocates for a “No” vote also differ on the “why” factor, and present their views on why the draft is a misfit remain divergent. The varied view points, while healthy for a democratic debate, may on the other hand signify a nation divided along the lines of different group interests as opposed to one that can strategically coalesce efforts to push for a common good in times when they are facing a decisive historical watershed.
For the MDC-T spokesman and COPAC co-chairperson, Douglas Mwonzora, the strength of the draft lies in that "it limits the president to a maximum of two terms in office, while the current constitution allows the Head of State to stand for election as many times as he or she likes" . The MDC wing of Professor Welshman Ncube believes that the strengthening of local government, described as ‘devolution’ in Chapter 14 of the draft charter is “an incremental gain” for many Zimbabweans, as confirmed by Qhubani Moyo, their Director of Research and Policy Coordination, while ZANU-PF representative Deputy Director of Information and Publicity Psychology Maziwisa contends Zimbabweans should vote for the draft because it retains strong executive powers for the presidency .
COPAC, continues to urge Zimbabwean society to vote for the draft, and has invited civil society organizations to work with it in its campaign for appositive endorsement of the drafting the forthcoming referendum.
When the draft was presented to Zimbabweans first time, Traditional chiefs became very disgruntled and sought an audience with President Robert Mugabe to discuss their concerns which centred on the administration of land. They were mostly unhappy with Clause 15.3, which clips traditional leaders’ authority over any land, except communal land. But the same chiefs surprised people during a debate in the Senate in a change of heart statement that they would all be campaigning for a “yes” vote when the draft constitution goes to a referendum. According to Chief Ngungumbane, deputy leader of the chiefs’ council, the drafting of the new constitution was a job well done and although the chiefs had initially protested against it as it curtailed their traditional powers, they were now fully behind it as they have realised that it ‘captured the views of the people.’
Former finance minister and leader of Mavambo Kusile Dawn, Simba Makoni, still says his party is undecided on the draft constitution, and has rightly argued that whether the document is good or bad, if it becomes law, those in authority should adhere to all its provisions.
On the other hand, some analysts have strongly condemned the draft, describing it as ‘ a tragic testimony of political expedience in the guise of law making’, whose expedience can have negative effects on the populace, especially on women who are already vulnerable in the current equation of power. Bev Clarke argues against an Executive authority created by clause 5 of the draft, which she says has potential to:
weaken state institutions through appointments….. [and].. a danger of perpetuating the denial syndrome by political leadership thus aggravating political, economic and social distress. Unilateral Executive power enhances dictatorial tendencies. It is tragic that the COPAC draft has given a green light to one man rule thus nullifying the belief in check and balances. The draft is silent on the retirement age of Executive authority. Very little attention has been given to the voting and electoral system which in the modern day Zimbabwe is the source of hope for political transition, and does not ensure stable political, democratic development and up-liftmen of the legacy of civil rule supremacy.
MDC 99 president Job Sikhala has strongly urged citizens to reject the draft, arguing that if adopted, it would unnecessarily increase the size and power of the government. The National Constitutional Assembly also takes a tug of war for a no vote, and is totally opposed to the way the draft was finalized by the nation's political chiefs and not by the grassroots – and rightly so, because Article VI of the Global Political Agreement (GPA) of 15th September, 2008, which focuses on the constitution making process states that it is a fundamental right and duty of Zimbabwean people to make a constitution by themselves and for themselves, in an inclusive and democratic manner. In seeking to further and lay emphasis on the NCA’s argument, my opinion is also that the GPA clause calls for the need for a participatory process, to the meticulous detail, and at all stages of constitution making, and the decision by the Principals to have the draft finalised by an elite few is a major deviation from the ideal.
The summary of the whole argument is that while those who canvass for a ‘Yes Vote’ insist that the COPAC draft is not a compromise document but a consensus document for all Zimbabweans who seek to promote national cohesion and stability, pitted against this stance is the logic that the Draft Constitution needs to be rejected to pave way for a fresh process on the basis that the process and content has not met expectations. For the benefit of readers who are not aware of the recently ended Constitutional journey, a short reference to it would be of benefit:
The long and tedious journey to the current draft Constitution
Despite the different viewpoints presented above, the narrative of the Zimbabwe constitution making process is a complex story of how people for the first time chose to rise above the narrow political differences for a common cause; and the draft itself a milestone achievement borne out of hard circumstances of 3 disagreeing political parties, coupled with acrimony.
An overview of the constitutional processes in Zimbabwe begins with the failed attempt to have Constitutional reviews at Geneva in October to December of 1976, followed by the second attempt in Tanzania and Zambia under the Anglo-American proposal that also failed in 1977-78. This saw the blacks going for a war of liberation to press for democracy and majority rule through the one ‘man’ one vote secret ballot system, which gave birth to the October – December 1979 Lancaster House Constitution. Attempts to change the Constitution after Independence dismally failed in the 90s, despite the huge efforts by the women’s movement and civil society.
The three and a half year just ended constitution making journey began with the 1st All Stakeholders’ Conference that set out 17 thematic areas for the constitution in 2009. This was followed by an outreach to gather people’s views countrywide. A total of 4 900 meetings in 1980 wards were held throughout the country, in which over a million people participated. Sex disaggregated data on people’s participation to the constitution process was however not presented. The next stage was that of drafting the people’s views into the constitution and 3 drafters were selected from the three political parties. Technical experts were also drawn from the three political parties to help the drafters document constitutional issues out of the people’s views, guided by the principle of preponderance on popular views. Drafting instructions, as well as a document of gap filing were developed to help document the constitutional issues. Negotiators of the GPA also helped to breakdown the deadlocks in the process, for example there were 218 issues the drafting team was not agreeing on at first, and the negotiators helped break this impasse. This stage was closely followed by a series of other meetings to consult the people on issue by issue of what had been drafted into the Constitution document
The 2nd All Stakeholders Conference held in October allowed the select committee to give report to the conference on the constitution process; to allow the participants to interrogate the draft and to allow delegates to make inputs into the draft, not for political spurring but for providing ways through which the Constitution can be strengthened. The draft presented 5 sets of data: views from the outreach; views from institutional submission; views from the diaspora, views from the children and views from people living with disabilities, the other depressing factor being that women were not classified as special category. The draft was finally left with the … for finalisation before presentation to the principals for approval.
To conclude this argument, while it is true that the draft was an outcome of wide outreaches and consultations with the various sectors of the populace, it is also true that its finalisation ended with a few elite who hold special ‘personalised group interests’ over the constitution, which do not tally with the desires of the rest of Zimbabweans. It is also true that the views of minority groups like the gays and lesbians were, in the words of one LGBTIQ activist who refused to be named, ‘…quickly dismissed and never given a chance to be heard.’
However, notwithstanding the above facts, Zimbabweans should pause to weigh the positives against the odds, and the gains against the losses, bearing in mind always that constitution making can never be a once off event, but a continuum on a scale. The fact that there are many good clauses in the envisaged new Constitution of Zimbabwe cannot be denied. The draft has a more comprehensive Bill of Rights on the African continent when compared to those of other states like Malawian, Ghana and Benin. For the first time in the history of the country the parties have agreed on devolution of power in the constitution, as well as term limits for the president and Commanders-in-Chief, heads of com-missions and the clerk of Parliament among others. It is also important is that all the security institutions are mentioned in the draft; first ever attempt to de-mystifies what security is all about.
As a feminist writer, my analysis will never preclude an inquiry of the historical realities of Zimbabweans, especially women. While I agree that adopting a constitution that leaves out the rights and demands of other sectors of society is not the best, I also think that continuing to be guided by a constitution that sanctioned our oppression and exclusion since 1890 is worse, especially for women. The Lancaster House constitution is responsible for perpetuating the current negative masculinities and hetero-normative ideals that characterise our rulers, and unless we do away with it as a first step towards redressing existing wrongs, our society may continue to be plagued by the same problems for ever. Comparing the draft with the Lancaster House Constitution, there are huge commitments to depart from the former by making provisions for non-discrimination on the basis of gender, customary and religious practices, among others. As already noted, making a constitution is a process rather than once off, and having a first attempt that is not perfect but close to reality is better than clinging to the legacy of the colonial oppressors. The quest for a perfect document should not stand in the way for the common good. This draft will give Zimbabweans something to fall back on and the basis for strategizing for a new future and for better constitutional amendments. Debates should not end at just voting yes but should be extended to well informed and all inclusive strategies of ensuring constitutionalism post adoption of the draft.
Some political party supporters have argued that Zimbabweans should cast a ‘Yes’ vote to honour President Robert Mugabe who made historic compromises to allow this process to move forward. In dismissing this misogynistic way of viewing reality, I opine that Zimbabwe should cast ‘Yes’ votes not to honour anyone, but to make it possible for some basic changes to occur in the governance of Zimbabwe; to put in place a better starting point and set the scene for women and other quotas of society to continuously engage with the state as a site of struggle for betterment of the country through seeking further amendments to the constitution; until our rights as women from different interest groups are realised. According to Coordinator of the Women’s Coalition of Zimbabwe, Netsai Mushonga, 75 per cent of Zimbabwean women’s demands are taken up in the draft and for the first time in Zimbabwean history. One Zimbabwean rural woman testified thus:
This is why we [women] were very active in the Constitution making process. We thank the Women’s Coalition of Zimbabwe for bringing us information on the constitution making process in good time before the government started gathering our views.
For the first time Zimbabwean rural women have satisfaction that they made meaningful input into the draft; knowing what it is they were asking for, and throwing such gains away would be undoing women’s efforts for nation building.
Whilst the LGBTIQs feel overly left out of processes that led to the current draft, they may want to take solace in the fact that in a difficult space like Zimbabwe; coming together to establish a common goal is key strategy and a pre-requisite to achieving specific group rights in the future. The history of South Africa may also serve to prove that simply having a right inscribed in the constitution without dealing with underlying causal factors may not necessarily bring instant peace. The South African Constitution enshrines the rights of gays and lesbians, as well as rights to proper housing for all, yet ONLY BLACK lesbian women continue to die from homophobic attacks, and thousands of BLACK South Africans remain homeless in their own country. Issues of patriarchy and power which result in the imperialistic hetero-normative nostalgias and negative masculinities passed on to our African leaders by former colonisers; issues of traditional and religious fundamentalisms; and issues of class and ethnicity have to be dealt with step by step and strategically to ensure complete gains for women, and to make this possible, a better starting point like adoption of the current Zimbabwean draft is key. As a feminist, any debate on the draft constitution cannot preclude a gender analysis and below I attempt to do a quick gender audit of the draft to show how it provides for the protection of the rights of women and children. The draft spells the following key issues concerning women’s rights:
Gender Equality: Clause 3(1) (F) gender equality is recognised as one of the founding values and principles of the draft constitution, and questions the legality of laws or practices that undermine the value of gender equality.
Equality & Non-Discrimination: Clause 4.7 provides for equality and non-discrimination and recognises in specific terms the equality between men and women. Clause 4.7(2) states that: “Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The clause extends beyond just recognising equality of rights equality of opportunities. This will set good precedent on the development of effective equal opportunities legislation. The clause also prohibits discrimination on the grounds of religious belief, custom, culture, sex, gender, marital status, thus nullifying Section 23 of the current constitution that provides latitude for discriminatory traditional laws and customs. The equality and non-discrimination clause also recognises the need for affirmative action measures to redress disadvantages of the past. The National Objective on Education under Clause 2.17 which states that:
“In particular, the State must take measures to ensure that girls are afforded the same opportunities as boys to obtain education at all levels”.
It must also be read together with Clause 2.3 on the National Objective of Development and Empowerment which reads as follows:
“All State and governmental institutions and agencies at every level must endeavour to facilitate rapid and equitable development, and in particular must take measures to—
(e) rectify imbalances resulting from past practices and policies”.
Past practices and policies include cultural and other practices that have materially disadvantaged women and girls. This means that in empowerment programmes, such as land reform and indigenisation, women have a platform to claim special privileges to advance their position on the basis that past practices and policies have materially disadvantaged them on account of their gender. In addition, Clause 4.7(6) reads: “To promote the achievement of equality, reasonable legislative and other measures may be taken to protect or advance people or classes of people who have been disadvantaged by unfair discrimination, and—
(a) such measures must be taken to redress circumstances of genuine need;
(b) no such measure is to be regarded as unfair …”
Gender balance at all levels: The draft constitution recognises the importance of Gender Balance as a key national objective. Clause 2.7 states that
“The State must promote full gender balance in Zimbabwean society, and in particular—
(a) the State must promote the full participation of women in all spheres of Zimbabwean society on the basis of equality with men;
(b) the State must take reasonable measures, including legislative measures, to ensure that both genders are equally represented in all institutions and agencies of the State and government, in particular in Commissions and other bodies established by or under this Constitution; and
(c) State and governmental institutions and agencies at every level must take practical measures to ensure that women have access to resources, including land, on the basis of equality with men.
(d) The State must take positive measures to rectify past gender discrimination”.
Women’s participation in politics and decision making: Clause 7.9 (3) on the composition of the National Assembly provides that, “The Electoral Law, or some other Act of Parliament, must make provision to ensure that, so far as practicable, at least half the membership of the National Assembly consists of women”.
Inheritance and Divorce Laws: The National Objectives in the draft constitution (Clause 4.16 on Marriage) provides for the state to ensure that “in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses”, and Clause 4.32 (3) also states that “All laws, customs, traditions and cultural practices that infringe the rights of women are void to the extent of the infringement”. Clause 7.5 (4) on the composition of the Senate states that “The Electoral Law, or some other Act of Parliament, must make provision to ensure that, so far as practicable, at least half the total number of Senators referred to in [the provisions on composition] are women”.
Rights of Guardianship: The draft constitution specifically recognises women’s equal rights to guardianship of children under Clause 4.32 (2) which was formerly a preserve for fathers, ironically rendering women permanent minors. The recognition of equality of guardianship between father and mothers introduces a fundamental and positive change in the law of families.
Fully Paid Maternity Leave: The draft constitution in Clause 4.16 (6) gives constitutional recognition to the right to fully paid maternity leave for at least three months, giving women’s SRHR issues due importance and constitutional protection.
Equal pay for equal work: Clause 4.16 (5) recognises that women and men have a right to equal remuneration for similar work.
When I asked a market woman in Epworth to give me 3 reasons why she thinks women should vote YES in the referendum in a second she quickly said:
• I can go to the registrar general anytime now and get a birth certificate and passport for my child without seeking concern from a man who rejected my pregnancy.
• There will be more women now in parliament, I don’t know how it works but I heard that 60% provision will be made.
• If I decide to marry I can now do so without having to change my surname to my husband’s.
In conclusion, I believe that the current draft is a major milestone in the history of Constitution making in Zimbabwe. The current Constitution governing Zimbabwe is a product of a compromise agreement reached at the Lancaster House Conference in 1979 between the outgoing colonial government and the incoming nationalist government at the end of the war of liberation. Despite being amended a record 19 times, the document still has flaws that have held the lives of over 12 million people, 52% of which are women to ransom.
African feminisms have their own biases, and my biases would largely emanate from my positioning as a woman in a highly patriarchal, highly polarised and highly violent society, where the violence is mostly more pronounced against the powerlessness of women especially during elections. My biases also emanate from the need to jealously guard against safeguarding women’s gains, no matter how little, lest it becomes a permanent tendency for women’s few gains to be scorned, rejected and forgotten. I advocate for a yes vote, after which Zimbabwean women should come together as a strong movement and fight hard to transcend all differences to re-strategize for constitutional reviews and amendments for the inclusion of the outstanding rights. I also emphasise the need to strategize for Zimbabwean governors to respect constitutionalism – which in my limited understanding of the law is the tradition and culture of respecting the constitution mechanisms and system to develop a value system of respecting the constitution based on consistent civic education and social mobilization. There is need for setting up a commission for ensuring that mechanisms for ensuring practicality beyond the constitution are put in place.