Draft constitution demands sober minds

the president as the chief executive officer of America as the first diplomatic and the first defender of the constitution who observes the theory of straight jacket.
They regarded the office of the president as the supreme office of the land borne out of the people’s power through a democratic electoral process. The American constitution was written with a clear view that the president will always serve the national interests of the people of America.
The same scenario happens to occur in all station states that have a president going through the process of democratic elections, getting his/her authority to rule from the majority people of America. Thus congress has no powers to limit the “executive” powers of the president whose mandate is not given by congress but is given by the people who elect him to run the country as a chief executive officer.
The Copac draft constitution is flawed in many ways. The first point where these so-called learned friends erred is where they gave themselves the power to negotiate. The reason given that the questions that were asked during the outreach process made it difficult to come up with an answer that satisfied every political party is nonsensical to say the least. All parties to the GPA agreed that they wanted a people driven constitution.
They were all after the will of the people. In a democracy the point with the highest score demonstrates what the majority of people want and it’s the highest score which is regarded as the highest score.
Thus the idea of going on an outreach programme was aimed at getting the majority views and not to get satisfying answers that would please either Zanu-PF or the MDC formations. Thus it is utter rubbish for any legal pundits to interpret the outcome of the outreach of constitution making process to mean a process of hunting for political satisfying facts that pleases any political party. The constitution must be a document that must survive the test of time regardless of what individual political parties think.
It is instructive therefore that Copac members did not understand the objective of the outreach programme. It therefore follows that these so-called learned friends did not do what they were asked to do. This is clearly captured in Cde Paul Mangwana’s press statements reported by the Herald of 24 July 2012. In the press statement Mangwana said “the constitution making process had captured the people’s views”.
However, he contradicts himself by saying “The system was thorough and we were not able to capture all of the people’s views but we are able to explain why.”
The explanation was childish and could least be expected from a constitutional lawyer. The explanation was naïve and took people of Zimbabwe to be that dull as not to know what they want included in the constitution. The explanation was silly, treacherous and devilish to say the least.
In Shona, we say “avhunduka chati kwatara anechaakaturika”. The said devil aligned critics of the draft constitution unraveled and unpacked the weakness of the draft constitution. It was only prudent for Copac to offer reasonable and sound responses to the observations made.
However, what we saw was a personalised attack on those who critiqued the draft constitution, but no convincing answers were proffered. The other flaw of the draft constitution in my humble view is that of establishing a constitutional court. The constitutional court itself is of no legal consequences. However it is the mind set with which the lawyers of human rights have in regard to human rights that some people have a problem with.
In South Africa, for example governance issues that must be run by the state have been hijacked by the constitutional court. The normal judicial structure has been sidelined.
The proponents of the constitutional court seem to be the lawyers of human rights. However, while there is nothing wrong in prosecuting cases related to human rights, the worry is on interpretation of what constitutes the human rights and whose rights do the lawyers of human rights represent. These questions and other fears come from the fact that the lawyers of human rights seem to support rights of certain classes of human beings as evidenced by the protection of Ian Kay and Roy Bennett by the lawyers of human rights as reported in The Patriot.
These human rights lawyers are reported to be threatening people who are unveiling the atrocities that were committed by Rhodesians during the liberation war. These lawyers who claim to be lawyers of human rights are believed to have been always concerned mostly with rights of the whites and the opposition.
They care less about the right of Africans who support Zanu-PF. If one reads the Legal Monitor which is the lead propaganda media for them, one hardly sees any cases that relate to violation of human rights of Zimbabweans who supports Zanu-PF. If anything the legal monitor only deals with rights issues that affect the former white commercial farmers and that affect the MDC formations.
With that kind of mind set exhibited by lawyers of human rights, demonstrating a partial, polarised and politicised legal approach to human rights, many people doubt whether the constitutional court would be impartial. I swear, mark my words, it is going to be a court that is going to be overwhelmed by political insensitivity that will be cancerous and catastrophic.
It is my humble observation that this court will eventually be a threat to national cohesion, peace and security.
My other observation of the cancerous and treacherous draft constitution is the establishment of an independent committee that specifically deals with the human rights issues emanating from security institutions only. In my humble observation this section is highly frivolous in that it’s selective and vindictive in nature.
It is also aimed at weakening the functions of security institutions, thereby threatening the peace and security of the country. Constitutionalism is not about putting legal instruments that only target certain sections and institutions of a nation. It boggles the mind why these issues were removed from the office of the ombudsman. The office of the ombudsman is not clearly moonlighted on how it will be composed and functioned.
In many countries where the president is an executive president, the appointment of those who become functionaries in the discharge of duty is appointed by the president. In the same vein the president can transfer or retire certain individuals from one department to another. This process, the transfer or retirement of a public official, is not a constitutional matter but an administrative and management process.
A good contemporary example was when the American General Petreus was transferred from the American army to head the CIA. It is thus mischievous for Copac to tell an elected president on how he shall run the country. The leadership and management style of an executive is never prescribed for him/her.
It would be overzealous to prescribe the leadership and management style of an executive.
At corporate level, the chief executive officer’s style of leadership and management is not prescribed by the board of directors.
The board of directors only prescribe the responsibilities of the chief executive officer. In the same vein the constitution cannot prescribe the leadership and management style of any public officer.
For a president the authority to rule is given by the electorate that then have the authority of removing him/her if he/she does not perform. The removal is done by way of not voting for him/her for a second term.
Thus in my view all the critiques leveled against the draft constitution were meant to point out errors of commission or omission which must be corrected.
The critiques are basically aimed at moonlighting issues that are constitutional in nature separating them from those that are of leadership and management in nature. Therefore Copac must remain cool and offer reasonable responses rather than getting involved in name calling and becoming emotive. The constitution as a supreme law should be drafted to withstand the test of time and in our case must contain ethos of our liberation that then become the bedrock of our future.