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Amendments make Constitution national
By Caesar Zvayi
THE Irish Writer, Seamus MacNamus (1869-1960) could not have put it any better, when he said that,"There are three things to beware of: the hoof of a horse, the horn of a bull and the smile of an Englishman."
It is a fact that the British do not have a national Constitution, even though they managed to draft Constitutions for the 50-odd former British colonies.
It is a fact that they did not voluntarily give up the colonies, which is why they formed a new neo-colonial club, the British Commonwealth to keep a watchful eye on the independent nations.
One would not be amiss to say that the British led by Lord Carrington were probably up to no good when they drafted the Zimbabwean Constitution at the Lancaster House Constitutional conference.
The fact that the conference, which opened on September 10 1979 had to span 47 plenary sessions before its conclusion on December 15 the same year, shows that diametrically opposed views could not be easily reconciled.
History has it that the Patriotic Front Leadership, led by President Robert Mugabe and the late Vice-President, Dr Joshua Nkomo only gave in when the leaders of the Frontline States indicated that their economies were no longer in a position to sustain the war effort where peace was an option.
Thus, it is also true that our national Constitution is not the best document that we could have, as it was not our product, but a cease-fire document.
This is why it has undergone 17 Amendments over the past five years to bring it in line with our national aspirations.
Even the much celebrated American Constitution has been Amended a record 27 times, some may argue that the 27 Amendments have occurred over a period of 229 years, but it should be borne in mind that the Americans wrote their own Constitution.
In addition to the 27 Amendments, six other proposed Amendments to the US Constitution were not ratified after they failed to garner the support of three-fourths of the US States.
This is the reason why the passage of the Constitution of Zimbabwe Amendment (No. 17) Bill is a cause for celebration as it is a culmination of our national resolve to close the loopholes the British introduced at the Lancaster House conference.
These are the loopholes that white farmers wanted to perpetually exploit after they campaigned against the Constitutional Commission’’s Draft Constitution during the February 2000 Referendum for its tacit land reform clauses outlined under Section 57.
Subsection 1 of the 2000 draft, clearly says that in the assessment of any compensation that may be payable when agricultural land is acquired for resettlement in accordance with a programme of land reform, it should always be borne in mind that the people of Zimbabwe were unjustly dispossessed, took up arms to reclaim the land, that Britain reneged on its promise and that the people of Zimbabwe are entitled to their land.
Hence in Subsection 2, the only compensation was to be for improvements done on the farms.
The recently passed Amendment No. 7 Bill, which sailed through the House last week, by a margin of 103 affirmative (Zanu-PF) votes to 29 opposing (MDC and Professor Jonathan Moyo) is a logical conclusion to the Third Chimurenga.
This Bill that has again been attacked by right wing forces at home and abroad amends the national Constitution in three principal respects.
Firstly, a new provision will confirm the acquisition of land for resettlement purposes pursuant to the land reform programme that began in the year 2000, and provides for the acquisition in the future of agricultural land for resettlement and other purposes.
This is covered by the insertion of a new section, 16B that deals with "Agricultural land acquired for resettlement and other purposes."
This Amendment will enable the government to deal with legal bottlenecks that arose in the implementation of the land reform programme as former white commercial farmers were delaying the process by appealing to the courts.
Under the Bill, Zimbabwean courts would be barred from hearing appeals on land acquisition with aggrieved persons restricted to seeking recourse in the courts only for the purpose of determining any questions related to compensation for improvements on the acquired farms.
Various analysts said that Section 16B is important in that no one, whether black or white will own land, as all land will now be State land.
Anyone who wants to use land will do so as a tenant on a 99-year lease, which is the same system used in various European countries including Britain where all land is vested in the Queen, who holds it in trust for all Britons.
Secondly, as pointed out in the preamble to the Bill, parliament will be reconstituted as a bicameral House consisting of a House of Assembly of 150 members (120 elected on a constituency basis, 10 Provincial Governors, 8 Chiefs elected in accordance with the Electoral Law to represent the eight non-metropolitan provinces and ten persons appointed by the President)
There will also be a Senate of 66 members (made up of five Senators elected in each of the ten provinces, plus the President and Deputy president of the Council of Chiefs, eight Chiefs elected by the Council of Chiefs to represent the eight non-metropolitan provinces, and six Senators appointed by the President)
The re-introduction of the Senate, which was abolished by the passage of the Constitution of Zimbabwe Amendment (No. 6) Bill in the House of Assembly on August 21 1987, brings with it many advantages.
This is because the Upper Chamber will be a deliberative house made up of experienced eminent persons who will temper the democratic aggressiveness of the Lower House.
The Senate will also have the capacity to formally represent diverse constituencies (regional, class, ethnic groups, etc.) and hinder the passage of flawed legislation. It provides a system of checks and balances as one chamber can check upon the other and there is also enhanced oversight of the executive branch.
As the Minister of Justice, Legal and Parliamentary Affairs, Cde Patrick Chinamasa pointed out, the Senate will introduce the principle of equality as each province has been allocated five seats regardless of geographical size or number of registered voters, as this will enable the capturing of voices that may not be directly captured by the Lower House.
"The Lower House will obviously be dominated by the populous provinces, by rendering provincial representation equal, the idea is to try to achieve a balance. So any voices that are not captured through elections in the Lower House, I am sure that, because of this principle of equality they will be included and accommodated," he added.
Thirdly, Amendment No. 17 Bill will recognise the electoral reforms instituted by the Government after the adoption of the Southern African Development Community (Sadc) guidelines and principles on the conduct of democratic elections.
The Zimbabwe Electoral Commission (ZEC) is duly recognised under Section 17, and will be substituted for Section 61 and in so doing abolish the Electoral Supervisory Commission, mentioned therein.
It is generally believed that the abolition of the ZEC would put to rest the concerns of some opposition and so-called civil society groups that questioned the legitimacy and composition of the Electoral Supervisory Commission.
It is thus surprising that the MDC, which all along complained that there was duplication of roles between the ZEC and the ESC, actually voted against the Amendment Bill.
It seems, however, that this was just a carryover mentality of the way they rejected the 2000 draft for its radical land reform clauses.
Whatever concerns may be raised by various opponents of the Amendments, it is quite clear that most of the concerns are hypocritical.
Britain that has been at the forefront of demonising the Bill actually necessitated it, firstly by foisting a defective Constitution on us at Lancaster House, and secondly by reneging on its colonial obligations to support the land reform progra- mme.
The so-called civil society groups, also conveniently forget that they needlessly opposed the 2000 Draft Constitution, simply because they wanted to protect white privileges.
It is actually providential that the Amendment also provides for the curtailment of the movement of such shameless sell-outs, who enjoy all the benefits accruing from citizenship at home, but forget that they have obligations as citizens once they are in European capitals.
It is however, pleasing to note that, the similar radical clauses are enshrined in the Amendment that now awaits certification, it has been a long struggle, and it was high time it reached its logical conclusion.
An analysis of the Constitutional amendments outlined in the table, will show that all seventeen changes were done to consolidate our independence, sovereignty and empowerment, thus even if it means amending every single clause in the current constitution to make it more Zimbabwean, no amount of sponsored noise should detract the legislature.
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