By Tafadzwa Musarara
The recently appointed writers of the constitution have released the first four chapters of the draft constitution to the three political parties. What a heap of bovine excreta!
The findings of the COPAC outreach programme were consolidated in a report called the National Report co-compiled by the main three parties namely Zanu-PF, MDC-T and MDC-N. Thereafter, the writers were assigned to write the constitution in the requisite legal format based on the National Report.
There is a serious glaring disparity between what the people said during the COPAC outreach programme and what has be written to be the provisions of the new constitution.
In their Drafterâ€™s Letter 4.1 dated 9 December 2011, the writers have copied the â€œ…Constitutions of countries in Sub-Saharan Africa such as Kenya, South Africa, etc.â€Â The draft is simply way out of tangent.
So far the draft chapters released, which are Chapter 1, 2, 3, 4 have touched on, inter alia, the topical issues of death penalty, gay rights, dual citizenship, war veteransâ€™ welfare and recognition of indigenous languages. With the goodwill of the editor, I will be unpacking these chapters in serialised format.
According to the National Report, the people of Zimbabwe in all provinces including the MDC-T strongholds (Manicaland, Bulawayo, Matabeleland North, Matabeleland South etc) said â€œNOâ€ to the recognition of gay rights in the new constitution. In their wisdom (or lack of it) the writers stated in Chapter 4.6 (Section 3) everyone has the right not to be treated in an unfairly discriminatory manner on such grounds such as their nationality, race….natural difference, etc.
It is the term â€œnatural differenceâ€ that from a legal perspective, will import gay rights into our constitution. This phrase is not in our current constitution, neither was it requested to be incorporated to be in by the people during the hearings.Â It is such terms that lawyers will argue in court to interpret the gay rights are justifiable/acceptable.
When South Africa wrote their constitution in early 90s, the people through their representatives never consented to the enshrinement of gay rights in their constitution.Â In fact, their Marriage Act of 1961 enacted by the repressive apartheid regime did not recognise same sex marriages. The shock only came in 2002 when Marie Fourie and Cecelia Bonthuys, a lesbian couple, applied to the Pretoria High Court seeking an order to compel the Department of Home Affairs to recognise their marriage. The application was turned down and the lesbian couple appealed to the Constitution which ruled that not recognising the same sex marriage was unconstitutional and therefore legalised gay marriages. The judgement went further to order the Parliament to come up with a new law legalising chingochani.
How did they reach that decision? The applicants (the lesbian couple) simply argued thatÂ Section 9.3 of the South African Constitution directed that â€œ…the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, etc.”
It is the phraseâ€ sexual orientationâ€ the lesbians used to argue their case. In our Zimbabwe case, the writers are using â€œnatural differencesâ€ to provide for a loophole that gays and lesbians will now use to apply to courts of law to have their union recognised.
When David Cameron decreed that the UK will not financially assist any recipient state that will not recognise gay rights, President Robert Mugabe called him â€œSatanicâ€. Ghanaâ€™s President, Mr Atta Mills, said Cameron was showing a â€œbullying mentalityâ€. Last year, Ghana, a country described by President Barack Obama as the leading democracy in Africa, received GBP90M from the UK, but Mr Mills said â€œif they must take their money, so be it.â€
Gay rights will simply tear apart our African social fibre which regulates how we relate with relatives, neighbours, strangers, etc.Â I simply canâ€™t phantom any one of my three sons bringing in another man as a partner. How will one relate to him? Muroora? If he will be called muroora what will be his role in the big family or in the clan? Definitely no children. The constitution must not be used to destroy peopleâ€™s cultures, norms and beliefs.
The genesis of the phrase â€œnatural differenceâ€ must be traced and the writers must stop playing God on the wishes of the people.
The National Report, which the writers have, says that all the provinces support the continuation of the death penalty. But our writers wrote in Draft Chapter 4.1 (Right to Life, Section 3) that â€œNo law may prescribe death as a penalty and from the effective date no executions may take place in Zimbabwe.â€ But why?
In the last festive season, already more than ten people were killed in fights over women, beer and one dollar debt. It is such callous and destructive behaviour that the penalty seeks to deter. If one person takes the otherâ€™s life, then he/she abrogates his/hers. The USA government still has the death penalty in its law books. The people of Zimbabwe spoke in support and the writers are doing the opposite. Bandits!
The National Report states that all the ten provinces want all major and minority languages as official languages. This will abate the preservation of these languages and their cultures. It also prevents the dominance of some tribes and/or languages over others in national programmes. The writers in Drafters Letter 1.1 dated 8 December 2011, Page 6 says that, â€œIt seemed to us that rather than specify every single indigenous language that is spoken in-and even you seem to be unsure about how many they are and how they are spelt- it would be better to specify just the three main ones…â€
The writers proceed in Draft Chapter 1 Section 6 (2) to state, â€œEnglish is the language of record.â€ The majority of African countries have their own native languages declared languages of record. The people of Zimbabwe wanted the same and writers are drafting something else.
Everyone thought recognition of eachâ€˜s vernacular language is the bedrock of national unity.
According to Section 19 of the current constitution, the holding of the next elections is squarely indexed to the conclusion of the constitution making process. It is possible that there is a fourth force that is engineering this confusion so that the whole process is thrown into deep turmoil, consequently delaying elections.
I am quickly getting to believe rumours making the rounds that the USA and UK intelligence units have put many key people in the constitution making process on their pay rolls. We will soon see them all. Itâ€™s those party representatives in COPAC who will not query this fraud committed by the writers so far are on this dirty pay roll. Political party leaders must now seriously consider recalling their Copac representatives.
Itâ€™s very difficult to talk when your mouth is full.
The opinions expressed in this article are the authorâ€™s and do not necessarily represent those of the Zimbabwe Broadcasting Corporation.
Tafadzwa Musarara is the Chairman of Resources Exploitation Watch, a civic group. You may contact him on [email protected]