Republic of Zimbabwe Vice-President Joice Mujuru congratulates President Robert Mugabe on his concluding speech at the ZANU-PF 12th National People's Conference held in Bulawayo in early December 2011. The party stands poised for the elections., a photo by Pan-African News Wire File Photos on Flickr.
African Focus:
New constitution: Empowerment versus regime change ‘roadmap’
Sunday, 15 January 2012 00:00
Dr Tafataona Mahoso
Zimbabwe Herald
Readers of this column will have, in the past week, seen two separate stories in the Press concerning the Parliamentary Constitution Select Committee (Copac) and its three-year-old claim that it is going to produce a new people-driven constitution.
One story appeared on Page 3 of The Financial Gazette for January 6 2012 and was attributed to the Copac spokesperson Honourable Jessie Majome. It was entitled "Constitution drafters moved to secret location" apparently in the Vumba Mountains in order to shield them from the public outcry over drafters' wild deviations from what people demanded during the Copac nationwide outreach.
The other story was attributed to the two Copac co-chairpersons - Hon Munyaradzi Paul Mangwana and Hon Douglas Mwonzora - and it appeared in several papers, including The Herald and The Chronicle on January 11 2012, that is five days after the one attributed to the spokesperson. It was ironically entitled "Drafters begin work on new constitution".
This was ironic not only because of the January 6 version but also because there have been several beginnings announced in the last three months or so. In fact, four chapters were already leaked to the public weeks before this yet another new beginning of the drafting process. The co-chairpersons were quoted as saying:
"The process is going on well. We have ironed out our differences . . . We have really tried to reconcile and we are now working with the drafters on the agreed issues and principles. The process is progressing well, but we cannot tell when exactly the draft constitution would be out because the process is very interactive."
If readers remember that this Copac process began in September 2009, it is easy to equate this latest announcement with similar announcements by major medical institutions who say: "The operation went very well, but the patient died long ago because of other causes. Nevertheless, we have to continue operating because the process (for the medical specialists) is complicated and interactive."
While Zimbabweans are not sick patients, they have been very patient. The Copac statement is a well-intended reassurance which triggers a million alarms. Fortunately a constitution is not a patient. It is a power map.
And the drama going on is not among the party representatives within Copac because these were reconciled and compromised long ago when they agreed to be funded by UNDP.
The real drama is between the people who want a people's popular empowerment map or, more precisely, an African empowerment map, and those foreign-sponsored elites and representatives of Anglo-Saxon capitalist interests here who want a regime change roadmap.
The Constitution as map of sovereignty and African empowerment has been drawn in bits and pieces and in stages since the First Chimurenga of Mbuya Nehanda and Sekuru Kaguvi. Its key draftsmen and draftswomen came from the African liberation movement.
Its custodian is the liberation movement and it is a relational map, drawn in response to real, present and prevailing conditions inside Zimbabwe, on the continent and around the world. In other words, the African liberation movement and its heirs want the new constitution to be a consolidated and highlighted map of African sovereignty and empowerment in the face of new global predators and the few African prodigal sons who seek to surrender and squander the African heritage with the predators. That is what is at stake.
The purpose of this consolidated and highlighted map of African sovereignty and empowerment is to enhance quick, effective and efficient decision making against the external predators and the local elite of prodigal sons who want to surrender the African heritage to those predators.
On the other hand, the purpose of the regime change roadmap is to reopen the middle passage which has been renamed roadmap. But there is no map in the roadmap.
Roadmap is a euphemism for a digitalised middle passage to neo-colonialism and neo-slavery.
A roadmap is designed for railroading those who do not know where they are going. But the map of popular African sovereignty and empowerment contains real soil, real rivers, real mountains and real gold, diamonds and platinum. It is a real arena, a real ground and pungwe for urgent decision-making in the face of threats. That is what imperialism and its agents do not want.
The conflict is therefore philosophical, moral and political: between those pursuing the consolidation of the map of popular African sovereignty and empowerment on one hand and those pursuing the regime change roadmap on the other hand.
The new constitution as a regime change roadmap is based on Roman Dutch Law and English Common Law which are linear systems based on the accumulation of negative precedents, all of which derive from failed relationships. Adversarial law is based on the selected cases of parties who have failed in their relationships and must therefore revert to the judiciary to rule for one or the other party.
As some scholars have observed in Pursuing Grounded Theory in Law:
"Reliance on trouble situations (which have been taken to court) to build up paradigms for the regulation of human behaviour means that workable and effective solutions that are devised by potential adversaries (who settle differences without resort to court) are overlooked."
In other words, linear law builds its corpus on precedents involving what are called "trouble-cases" while excluding "trouble-less cases", precisely because the trouble-less cases never reach the courts for litigation. Therefore they cannot set precedents.
Likewise, those pursuing the new constitution as a regime change roadmap base their approach on the worst sort of Afro-pessimism: the assumption that Africans are a congenital "trouble-case" who have failed the governance test.
Therefore the new constitution for Zimbabwe must achieve against the liberation movement what the external regime change forces have failed to achieve here since 1997.
The draft new constitution is meant to do from within what the so-called Sadc Tribunal, Afriforum, the so-called African Commission on Human and People's Rights (ACHPR) and the old Kimberley Process Certification Scheme (KPCS) have previously tried but failed to do: that is criminalise the African land reclamation movement and the Third Chimurenga in Zimbabwe and ban Zimbabwe's Marange diamonds from global markets as part of the global enforcement of illegal Anglo-Saxon sanctions against the country.
What these organisations failed to achieve externally will now be domesticated inside Zimbabwe's own supreme law based on the assumption that Zimbabweans in general and the liberation movement in particular are a trouble-case who failed the governance test.
Therefore the more hostile the drafters are to the ethos and legacy of the African liberation movement, the better the constitution they will draft.
The framework and climate for such an event had been carefully prepared for more than a decade following the collapse the former Soviet Union.
The attempt to universalise an Anglo-American system of human rights and good governance was intended to keep within the Western orbit, following the collapse of the Soviet Union, those countries which had been presumed to be in that Western orbit during the Cold War.
It was also intended to bring more countries into that orbit against future potential challengers. For the British, the Commonwealth was used as the mechanism for preventing countries such as Zimbabwe from declaring full sovereignty and autonomy in a multi-polar post-Cold War era.
To minimise the effects of decolonisation, Britain had maintained control over its former colonies through Lancaster House constitutions and "independent" judiciaries in the Anglo-Saxon tradition.
It sought to pre-empt revolutions in the former colonies by mobilising chief justices, senior judges and selected lawyers in all Commonwealth countries against political movements which might respond to the new multi-polar environment by designing new constitutions, by launching new political dispensations and by reclaiming their national resources and assets in violation of property laws once guaranteed in the Lancaster House constitutions.
The mechanism for this mobilisation of chief justices, senior judges and selected lawyers was a series of "Judicial Colloquia" called "Developing Human Rights Jurisprudence: The Domestic (National) Application of International Human Rights Norms".
The entire set of seven or more conferences was administered by the Commonwealth Secretariat. The most persistent and consistent donor was the US-based Ford Foundation; and five out of seven of the meetings included a US judge as a participant. Today, UNDP and USAID have taken the places of the Commonwealth and Ford Foundation. But the purpose is the same.
Going through the reports of these colloquia or seminars, it is clear that someone had a long-term strategy and objective which some of the participants did not necessarily suspect. For judges from so-called Third World Commonwealth nations, the incentives for attending the seminars were almost irresistible: donations of library books; promises of access to digital equipment and computerised legal library systems; free tickets to fly around the world; and opportunities to get published in Anglo-American journals.
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