CONSTITUTIONAL REFORMS IN SOUTHERN AFRICA

by Ellen Kandororo

Southern Africa's political landscape is set to undergo a major transformation with at least five countries currently engaged in wide-ranging constitutional review exercises. Major constitutional changes are at various stages in Lesotho, Mozambique, Swaziland and Tanzania while the spotlight is on Zimbabwe, which seeks to overhaul its 20-year old constitution, crafted at pre-independence negotiations mediated by the British government.

In Swaziland, one of southern Africa's remaining monarchies, the constitutional process has practically besieged the country's Tinkhundla system - a traditional system that directly involves chiefs in the running of the country. Under the increasingly unpopular traditional system, viewed by pressure groups in the country as undemocratic, opposition political parties were banned by decree in 1973.

However, King Mswati III bowed to public pressure, appointing a constitutional reform commission in 1996 with a mandate to collect views from the country's 55 constituency (Tinkhundla) centres. Early this year Mswati set December as the deadline for public submissions. He has since extended the deadline to August 2000, meaning that it will now take the commission six years to complete its exercise.
The commission is expected to submit to the King its draft report in August 2001, raising fears that the constitution-making exercise will not be complete by the time the kingdom holds its next elections in 2003.

In nearby Lesotho, the government is under pressure to change sections of the constitution, especially those clauses relating to the electoral law. Lesotho's electoral law is heavily criticized for the mess encountered in the country's ill-fated 1998 election.

The tiny mountain kingdom is set to go for fresh elections in May 2000 under a new law. Two agreements brokered by the Southern African Development Community (SADC) effectively left the ruling Lesotho Congress for Democracy (LCD) in power and formed an all-party Interim Political Authority (IPA).

The IPA held a national forum early this year to solicit for opinions from Basotho on what electoral model they preferred for future elections. The result was a resounding majority in favour of a proportional representation system. Lesotho has been using a first past the post electoral system under which LCD won all but one of the 80 contested parliamentary seats in May 1998.

In Tanzania, the public wants major amendments to the 1977 constitution, according to recent findings by a committee appointed by President Benjamin Mkapa to collect public views on a government white paper issued in 1998.

According to a recent Panafrican News Agency article that quoted Mkapa's Press Secretary, Geoffrey Nkurlu, the majority of Tanzanians sampled want a constitution free from political ideology and one that allows independent candidates to run for civic and parliamentary elections, but not for presidency.

The report was handed over to the president and the ruling party, Chama Cha Mapinduzi, for further scrutiny, said the article.

Reports from Mozambique say the 1990 constitution, which opposition Renamo demanded be amended drastically after the last election because it was "Soviet in style", now lies in legislative limbo after the Afonso Dhlakama-led party made a last minute about-turn. After four years of hard work, a consensus had emerged which would have held competitions for a new flag and national anthem and, more importantly, would strip the presidency of many of its powers in favour of a prime minister and parliament.

In recognition of the new economic realities, property rights currently vested in the state would be opened to individuals and corporations.

Renamo was on board with this sometimes-grueling process when, suddenly in August it changed its mind in the Assembly of the Republic where Frelimo did not have the necessary two-thirds majority and needed consensus to amend the constitution, and scuppered the whole deal by refusing to vote.

The pundits say Dhlakama and his advisors saw the 3-4 December election coming and thought they had a chance to beat the long-serving Joaquim Chissano so it was no time to weaken presidential powers. Now, regardless of who wins what, the constitution process will start again.

While Lesotho, Mozambique, Swaziland and Tanzania are only seeking to amend their existing constitutions, albeit comprehensively in some instances, Zimbabwe has embarked on an ambitious exercise to draft a completely new document.

The constitution-making exercise has however been embroiled in controversy and was boycotted by the civil society-based National Constitutional Assembly (NCA), a coalition that was instrumental in lobbying the government to redraw the British-crafted constitution, saying it was "outdated" and thus did not apply to contemporary Zimbabwe. President Robert Mugabe answered to the demands and appointed a 400-member Constitutional Commission, which immediately embarked on a whirlwind campaign for public views.

The NCA refused to be part to this exercise saying the Mugabe-appointed commission, led by Judge President Justice Godfrey Chidyausiku, was dominated by the ruling ZANU-PF party, and therefore was bound to produce a partisan product. The current constitution has undergone 15 amendments since independence in 1980.

A draft constitution, compiled in no more than seven months, has already been submitted to the president amid criticism, from some commissioners and members of the NCA, that it did not represent views of Zimbabweans solicited during the public blitz.

Critics say the hurried nature of the exercise severely compromised the quality of the product. However, others dismiss this saying Malawi's 1994 constitution, widely hailed as one of the best in Africa, was put together within a period of five months. It was also adopted the same year.

However, it remains unclear what President Mugabe is going to do with the 106-page draft constitution. In May the president pledged that the draft would go to a referendum, but a bill to enable such an exercise is not yet in place. The constitutional process is also likely to present a logistical nightmare given that the new document is expected to be in place before legislative elections scheduled for the first half 2000. (SARDC)