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Political Dynamics and Social ProcessesThe challenge that is often faced in adopting the principles and mechanics ofconsti...
and political factors also enhances communal conflict, which in turn poses one ofthe greatest threats to making democracy ...
Post-colonial governments have used the letter of the law as an instrument forcontrol and repression, and the military reg...
is a prime inheritance of the colonial period which arbitrarily divided Africa intostates.From the experience of these cou...
document for adoption by a representative body such as Parliament.                  Thissituates the entire process firmly...
important is that the process of obtaining funds for constitution making shoulditself be transparent.InclusivityThe princi...
Without the necessary assistance to understand the process in which they areinvolved, people cannot make appropriate recom...
for public participation. It was important that the disadvantaged rural communitiesbe reached through information dissemin...
making process. These were nevertheless encouraging results, and providedinformation to the Assembly which could be acted ...
negotiation on the contentious issues. One such issue that will be decided bynational referendum was whether to allow a mu...
governments should utilise civil society structures for mobilising mutualcommunication efforts. In South Africa the Nation...
religious organisations such as the Roman Catholic Church, Animal Rightsgroups and the South African Gun Owners Associatio...
the historical context, normative process as well as the wider political issues allcombined to determine the trajectories ...
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Political dynamics and social processes


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  1. 1. Political Dynamics and Social ProcessesThe challenge that is often faced in adopting the principles and mechanics ofconstitution making enumerated above is that they are heavily dependent on thedominant political trends and social processes at play in the country in question.At the heart of the quest for the new constitutionalism is the place of power andthe management of diversity and difference. In essence, process and contentissues are somewhat subordinated to wider political issues and the degree towhich the contending players can mobilise public opinion in the realisation ofidentified objectives and positions on the power map is an indication of how‘locally owned’ the process is from the perspective of particular players. Evenwhere process issues rank highly in the discourse of constitution-making, it is notalways from the perspectives of constitution-making, but on account of widerpolitical mobilization. Hence, as we note in Zimbabwe, normative process issuesof inclusivity, transparency and openness became the pivot upon which widerpolitical issues were hinged. And the resolution of the wider political struggle orthe lack of it has affected the enthusiasm of the main players that utilisedconstitution-making as the entry-point for dealing with the crisis of governance.Even though the above is true of many processes of constitution-making in Africaand skeptics see it as the reason why constitutionalism does not offer the bestroute to re-constituting the state, the evidence in Africa suggests thatconstitutionalism is increasingly seen as an alternative to violent challenge andforceful removal of incumbent authorities in illiberal states. It is becoming widelyacceptable as the major pivot for creating and sustaining democratic institutionsand completing the unfinished nation-building projects on the continent. But thishas only been possible because constitutional activists now focus on theopportunity constitutionalism offers for addressing fundamental questions aboutthe post-colonial state in Africa on issues of nationality, identity, citizenship,justiceable social and economic rights, democratic dividend and go beyond themere rule of law protection that constitutionalism offers to the average citizens.Through this also, they are able to strengthen the notions of institutions andreduce the quest for personality driven agendas.Yet even with these modest efforts, constitutionalism is still inherently conflictualand contradictory with the capacity to generate and resolve conflicts. This is sobecause the impact of constitutionalism in a continent that is still witnessingdemocratic reversals and uncertainties is not always easily quantifiable sinceinstitutional changes take time to mature and often reflects the complexity of theState-Society relations peculiar to particular countries and regime types. In acontinent caught between two forces that it has no control over: on the one handis the force of economic globalisation that has compounded the problem ofinsecurity, violence and militarisation through the forced policies of structuraladjustment and the untoward influence of transnational corporations in resourcesconflicts and on the other hand sub-national entitities engaged in the quest foridentity, nationalism and ethnicity. The worsening of poverty by these economic 1
  2. 2. and political factors also enhances communal conflict, which in turn poses one ofthe greatest threats to making democracy a reality.In light of these challenges, reconstituting the African State along equitable andjust lines using the constitution as a pivot remains a highly contracdictory, butultimately rewarding experience, at least as experiences of countries that havemanaged to institutionalise mechanisms for the management of diversity anddifference in their societies. Indeed, at every level on the continent, the idea hastaken root that the African state must be refashioned to reflect the realities oftheir multifaceted societies. This has been reflected in the constitutionalconferences in Benin, Togo, Niger, the Democratic Republic of the Congo, andCameroon in the early 1990s, in the successful constitutional arrangement ofGhana, Uganda, Eritrea, Ethiopia and South Africa.African experiences of Constitution-MakingConstitutions in Africa have been treated with profound ambivalence, handed downby exiting colonial powers as a holy grail legitimising the supremacy of the state oversociety. For too long, constitutions have been only identified with legislation. But aconstitution by its very nature should be more than a mere set of rules and lawsregulating society and government. It is more than a social contract or even thegrundnorm. It is rather an expression of the general will of a nation. It is a reflectionof its history, fears, concerns, aspirations, vision, and indeed, the soul of that nation.In the tradition of the Westminster model, constitutions have largely been viewedas a set of rules and administrative arrangements, meant not to regulate or limitexcessive state power, but rather to validate the post-colonial state by using therationale that anything legal is by definition legitimate. Constitutions thatsanctioned one-party states and racial segregation have been not only seen aslegal, but also legitimate documents regulating the conduct of state affairs, oftento the detriment of the population.1For this reason, autocrats of the post-colonial era have recognised the usefulnessof using written constitutions to legitimate their actions, while avoiding the valuesof constitutionalism which would have placed limits on arbitrary or excessive useof power. Even the most progressive post-colonial leaders have shown deepambivalence about constitutionalism. However in counter to this the respectedPresident of Tanzania, Dr Julius Nyerere, once remarked, “We refuse to putourselves in a straitjacket of constitutional devices – even of our own making.The constitution of Tanzania must serve the people of Tanzania. We do notintend that the people of Tanzania should serve the constitution.”21 Thus, some of the technical and administrative concessions granted in the post-independence constitutions of Kenya and Zimbabwe remain key sources of neuralgia in the current struggle for constitutional change in these countries.2 H.W.O.Okoth-Ogendo, “Constitutions without Constitutionalism: Reflections on an African Political 2
  3. 3. Post-colonial governments have used the letter of the law as an instrument forcontrol and repression, and the military regimes that overthrew them perfected theart of manipulating the law to justify their hold on power. Helped by the dominantsuper-power politics of the cold war era that facilitated monopolies on power bycoercive rulers, the manipulation, trivialisation, and disregard of the constitutionhas become the defining characteristic of governance in much of post-colonialAfrica.3The collapse of cold war exposed this soft underbelly of the African State, andover the last decade the continent has witnessed many positive changes. Evenso, the gap between constitutionality and constitutionalism is still wide eventhough no fewer than twenty African states have undergone or are undergoingconstitutional reform processes on the continent. Many African countries aredemocratising in the formal sense, and significant strides have been made in theareas of rule-based governments, whether in the form of governments thatemerged out of the various national conferences or ones elected by popular vote.Keeping the examples of perhaps South Africa, Uganda and Eritrea aside, it isstill premature to speak of the existence of constitutional governments. Theformal end of authoritarian rule has not yet led to an acceptance of the state asrepresenting a broad social consensus, beyond what is made apparent duringelections.Although an essential feature of peace-building and conflict management is oftenthe degree to which consensus can be achieved among contending parties,elections have nevertheless become the “legitimate” method of demonstratingdemocracy abroad while consolidating political exclusion at home. Left with littleor no alternatives, disaffected parties have often resorted to violent means ofchallenging the status quo. The use of military force now prevalent in severalparts of the African continent must be seen as the inevitable consequence of theacute nature of internal contradictions and the almost total absence of anycredible mechanisms for conflict mediation and transformation within societies.Since multi-partyism by itself had proved to be an inadequate conflictmanagement tool in newly post-colonial states of Africa, advocates fordemocratic transition have stressed that elections can at best only be one stopalong the road towards bringing about democracy. They argue that electionsalone do not necessarily lead to a deepening of democracy nor do they stop anti-democratic trends. This is especially true in countries where the pressing issuesof identity, nationality and citizenship raised by constituent communities havebeen ignored by politicians in their search for electoral legitimacy. Ethnic conflict Paradox,” in Douglas Greenberg, (eds) et-al, Constitutionalism and Democracy: Transitions in the Contemporary World (New York: Oxford University Press, 1993) , pp.65-82.3 Okoth-Ogendo (1993). 3
  4. 4. is a prime inheritance of the colonial period which arbitrarily divided Africa intostates.From the experience of these countries, the last decade in Africa has witnessedan upsurge in the demand for constitution-based governance that broadlyreflects, in terms of process and outcome, the will of the people. Today, thestruggle for constitutional reform in Kenya, Zimbabwe and Nigeria4 represent astruggle about re-constituting the State through a legitimate and inclusive re-drawing of its power-map.. This struggle has been led predominantly by civilsociety in Africa, since the political parties proved incapable of pushing for justand equitable societies, being instead distracted by a chance to exercise power.The change in focus from constitutionality to constitutionalism, whereconstitutions are now seen as a tool for bridge-building among members of civilsociety, has become a core issue in the debate about process and content.Activities in this field, however, continue to focus mainly on government, givingless importance to consensus building amongst civil society and between theordinary citizen and the state and it is on account of this that we have to reflecton the essence of these principles and mechanics and see the extent to whichwhat they were relevant in different African contexts, their amenability to localcircumstances and their enduring legacies for the politics of consensus is useful for our purpose to refer to the experiences of other African countriesfrom Ghana, Uganda, Eritrea and South Africa in reviewing these principles.5LegitimacyThe legitimacy of constitution making processes will be defined by the domesticsocial and political context in individual countries. Legitimacy can be facilitated bybestowing a legal mandate upon Constitutional Commissions, Assemblies orsimilar bodies to solicit citizen input, draft a new constitution, and present a final4 In the three Commonwealth states, civil society coalitions have emerged to emphasise many ideas of political constitutionalism in the quest to change the nature of the state itself.5 This paper relies heavily on information presented at the CHRI consultation in Pretoria, South Africa 16-17 August 1999. See Julius Ihonvbere, “Constitutionalism and Democratisation in Africa”; John Mary Waliggo, “Constitution Making Processes: Lessons from Uganda”; J’Kayode Fayemi, “Beyond Elections- Strengthening Nigeria’s Constitution for Sustainable Democracy: The Role of the Centre for Democracy & Development”; Fungayi Jessie Majome, “Experiences from the Constitutional Commission of Zimbabwe Regarding Participation Constitution Making”, Hassen Ebrahim, “Constitution-Making in South Africa – A Case Study”. See also papers presented at International Conference on Constitutionalism in Africa, Faculty of Law, Makerere University, Kampala, Uganda , 5- 8 October 1999: B.J. Odoki, “The Challenges of Constitution-Making and Implementation in Uganda”, and Bereket Habte Selassie, “Constitution Making in Eritrea: Democratic Through Popular Participation”. See also Ihonvbere, “The 1999 Constitution of Nigeria: The Limitations of Undemocratic Constitution Making” presented at Centre for Democracy and Development conference in Abuja, Nigeria 29 June – 3 July 1999. 4
  5. 5. document for adoption by a representative body such as Parliament. Thissituates the entire process firmly within the framework of the rule of law.The South African elected Constitutional Assembly of 1994 already had alegitimate mandate in terms of which its members were entitled to draft thecountry’s final constitution. The Constitutional Assembly however decided thatthis was not sufficient. The wisdom of this decision lies in the lessons learnt andexperience gained.One of the stated objectives of the Constitutional Assembly was that the processof constitution making had to be transparent, open and credible. Moreover, thefinal constitution required an enduring quality and had to enjoy the support of allSouth Africans irrespective of ideological differences. Having regard to thehistory of political conflict and mistrust, the credibility of the final constitution wasan important goal. This depended on a process of constitution making throughwhich people could claim ownership of the constitution. It was also necessary toplacate the fears and concerns of minorities and yet find favour with the majority.In short, the constitutional foundations of democracy had to be placed beyondquestion.Legitimacy can also be developed in other quantifiable ways. In Uganda historyhad caused the population to at first doubt the sincerity of the government toimplement constitutional reform. Trust grew when the President followed theguidelines laid down for him by statute in appointing ConstitutionalCommissioners; namely that they be persons of integrity, expertise, andexperience to perform their task.When interest groups complained about the appointment process, the Presidentresponded by appointing representatives from their organisations to be on theCommission. Likewise the independence of the Ugandan ConstitutionalAssembly was promoted by the fact that it consisted of elected members inaddition to ten presidential nominees.Another factor which made the process seem legitimate to the people was thelack of foreign funding allocated to it. Since making the new constitution wassupported financially entirely by the people and the government of Uganda, itwas immune to criticisms of foreign intervention.While Eritrea did accept foreign funding, it nevertheless drew upon the ampleresources of its Diaspora and domestic commercial enterprises to fund theconstitutional consultation process in that country. This not only helped financethe constitutional effort but also turned potential supporters of the constitutioninto literal stakeholders.Many countries have indeed relied on some degree of foreign funding to facilitateconstitutional reform. The legitimacy of doing so, and of the constitution itself, isenhanced if conditions are not seen to be attached to such funding. What is 5
  6. 6. important is that the process of obtaining funds for constitution making shoulditself be transparent.InclusivityThe principle of inclusivity agreed upon by the South African, Ugandan,Ghanaian and Eritrean constition making initiatives differred in style and content,but all stressed the importance of embarking on a programme of publicparticipation that ensured effective dialogue amongst the people. In spite of thehuge challenge that this posed for the governments of South Africa, Uganda, andEritrea - all of them engaged in significant consultation exercises with thecitizenry that made enormous efforts to draw in the views and concerns of peoplefrom all walks of life. This meant including the voices not only of the moreempowered sections of society and the Diaspora, but in particular the largenumbers of traditionally marginalised illiterate, poor, rural dwellers, women,disabled, and others such as traditional leaders.In the three countries referred to, women played and were encouraged to play anactive role in both constitution making and insuring that constitutional guaranteesare implemented.6 Uganda seemed to recognise this, as one third of the 25,000submissions received by the Ugandan Commission were made by women. Inorder to privilege all submissions equally, each and every one was summarisedand translated into English from local languages for the UgandanCommissioners use.Uganda in particular also understood the importance of taking whatever time wasnecessary to truly receive wide citizen input. The first phase of the consultationprocess stretched over one year, and focussed on determining whether thecitizens of Uganda believed a new constitution was required for the country and ifso, what the new document should contain.Attention was also paid, in the various countries that are viewed as having hadsuccessful constitution-making experiences, to the participation of all sectors ofsociety in terms of the composition of the constitutional reform leadership. InEritrea this meant that just short of half of the membership of the ConstitutionalCommission were women, and all nine ethnic groups were represented.Empowerment of Civil SocietyAlthough the need for an inclusive process may be easily recognised, particularlyamongst poor and illiterate populations, the ability of citizens to participate in apublic consultation process for constitutional reform cannot be taken for granted.6 From the Kampala Declaration (1/10/99) Made by participants of a Uganda Human Rights Commission conference on the “Rights and Empowerment of Women in the Constitution and Constitutionalism in Africa”. Further recommendations include that women and girls must be helped to fully understand their rights, especially in rural areas, including by improving general literacy skills. 6
  7. 7. Without the necessary assistance to understand the process in which they areinvolved, people cannot make appropriate recommendations as to its outcome.Consultation would then be hollow and without meaning.By empowering civil society to participate in the constitution-making process, therespective Constitutional bodies in South Africa, Uganda, and Eritrea were ableto add a new dimension to the concept of democracy in their countries. They seta tough precedent for governments to follow and provided insight into what aparticipatory democracy could be in the future. Empowering civil society toparticipate also creates a culture of openness and scrutiny that becomesincreasingly difficult to suppress over time.Civil society was empowered to participate in the consultation processes of theUganda, South Africa and Eritrea through vigorous public educationprogrammes. In Uganda female leaders were trained in all 167 counties to solicitwomen’s views on the constitution. A common women’s memorandum waseventually submitted to the Commission.Openness & TransparencyEven if citizens have started to take part in consultations regarding theirconstitution within their own communities and constituencies, faith in the integrityof the process must be maintained. It must be seen as being transparent andopen. The consultation process was made transparent in Uganda through thepublishing of three volumes containing submissions to the ConstitutionalCommission, an analysis of the submissions and subsequent recommendations,and the draft constitution. In South Africa everyone sending in a submissionreceived a reply from the Constitutional Assembly along with copies of thesubsequent drafts of the constitution itself. In this way individuals could followdevelopments with regard to specific issues of interest to them as well as knowthat their input had been registered.In addition to such specific ways in which consultation processes should be kepttransparent, public participation programmes are useful for ensuring that theprocesses are, and seem to be, open to the public. In South Africa threeapproaches were used for promoting public participation: community liaison, medialiaison and advertising. This was a move, which broke with public serviceconventions, however it helped forge an open and transparent process.The function of community liaison was to initiate interactive programmes betweenmembers of the Constitutional Assembly and the broader public. These were of aface-to-face nature, mainly in the form of public meetings.To ensure effective communication, a Media Department was established. Thisinvolved the use of print, radio and television as well as a national advertisingcampaign The primary objectives of the media strategy for the ConstitutionalAssembly were to - inform, educate, stimulate public interest, and create a forum 7
  8. 8. for public participation. It was important that the disadvantaged rural communitiesbe reached through information dissemination and constitutional education.AccessibilityIt is a key principle that the process must at all times be made accessible to thebroadest possible community. It is not sufficient that public calls for submissionsare advertised widely. It is important to ensure that ordinary members of thepublic are able to access the process both physically and intellectually. Youcannot, for example, ask a largely illiterate population, as was the case inNigeria, to submit ten copies of typed written memorandum by registered post orby email! In all of the countries regarded as having had good practice, effortswere made to solicit the views of the people in an outreach and consultativeprocess conducted in a language of choice within the community.Uganda, Eritrea and South Africa all disseminated documents needed forunderstanding the context of constitutional reform in their countries to the peoplein both national and vernacular languages in the early stages of the consultationprocess. In the case of Eritrea this involved translating international covenantsinto vernacular languages. 400 trainers were mobilised to educate the public,reaching ½ million people. In Uganda the existing constitution was reprinted anddisseminated along with booklets entitled “Guidelines on Constitutional issues”,“Guiding Questions on Constitutional Issues” and a booklet explaining how toprepare memoranda to submit to the Constituent Assembly.In South Africa the public was provided with toll-free telephone numbers,addresses and public opportunities in different localities to take part in theprocess. The principle of accessibility was also considered and addressed fromthe perspective of language. Aside from the use of the different languages, it wasensured that all information, including the constitution itself, was published inplain and accessible language.Continuous ReviewTaking into account the importance of the outcome of the constitution- makingprocess for the future of the country and the enormous effort and human energyexpended to make it all happen, the South African Constitutional Assemblyundertook a national survey to assess the penetration and impact of the mediacampaign as well as public attitude to key constitutional issues. The resultsrevealed that the Constitutional Assembly media reached 65% of all adult SouthAfricans in the three months since it started work. However, the survey alsorevealed that the public was clearly skeptical about the seriousness of theConstitutional Assembly in calling for their involvement, and about the treatmenttheir submissions would receive. The survey revealed that the credibility of theprocess was an issue that needed some attention. Levels of knowledge aboutthe constitution were fairly high, but a sizeable proportion of the population stillneeded education about the nature and function of a constitution. They alsoneeded information about the Constitutional Assembly and the constitution- 8
  9. 9. making process. These were nevertheless encouraging results, and providedinformation to the Assembly which could be acted upon.AccountabilityTo remain true to the principles of public participation constitutional consultationbodies must be seen to be accountable. This was achieved in Uganda, Eritreaand South Africa through effective publication of developments, and bymaintaining transparency of the process. South Africa posted copies of allworking drafts of the constitution to those who had made submissions, therebyensuring that contributors were aware of developments and could track theconsultation bodies’ responsiveness to the people.It is interesting to note that all three constitutions stipulate that the citizens and/orarmed forces of each country are required to defend the constitution, therebycalling upon them to be accountable for upholding the document they themselvescontributed towards creating. The Constitution of Ghana goes further byconferring an award to anyone who defends the constitution – even in death, theestate of such a defender would not go unrewarded.The importance of processA profound lesson learnt from experiences from various countries has been thatthe process of arriving at decisions is often as important as the substance andimplementation of those decisions.In the case of South Africa, a unique national characteristic emerged: the fetishwith consultation. South Africans tend to be suspicious of any process they havenot been consulted about. Process therefore tends to be as important as thesubstance of all agreements. As a result more time and energy was spent onnegotiating the process of arriving at the final constitution than on negotiating thesubstance of it. The most vigorous opposition, disruptions, and disturbances tookplace in support of demands relating to the process of drafting the constitution.The levels of political violence during the negotiation also manifested this trend.Consensus-building is an important societal value in Uganda. This was reflectedin the Constituent Assembly statute requirement that (in the absence of a 2/3majority) contentious issues should be sent back to the citizens for consultation.Nevertheless at times Assembly members walked out of talks when it was feltconsensus wasn’t going to be possible. In any event the degree of consensusachieved on important topics (such as the federal structure of the governmentand on land ownership), as well as the amount of issues which remainunresolved upon the promulgation of the Ugandan constitution highlight theimportance of process.While some issues were resolved during the making of the present Ugandanconstitution, the exercise in participation and negotiation which the entireconstitution-making endeavour represented laid the framework for ongoing 9
  10. 10. negotiation on the contentious issues. One such issue that will be decided bynational referendum was whether to allow a multi-party political system in thefuture. Thus the Ugandan people will be continually allowed to review theirconstitution in an on-going participatory constitution-making process. At thesame time requirements for amending the constitution have been madesufficiently rigorous to safeguard against whimsical tampering by political forces.The role of political partiesIn keeping with South Africa’s unique history, political parties had an important roleto play in the constitution-making process. They became facilitators of theConstitutional Public Meetings organised by the Constitutional Assembly to draw inpublic views. The politicians who were members of the Constitutional Assemblyreported on their activities directly to the public, who then voiced their views on thevarious issues addressed during negotiation. Each submission was then recordedand transcribed for consideration by the various political structures established bythe Constitutional Assembly.Most of these meetings were held in rural and disadvantaged communities. Therationale was that people in these areas did not have access to media to follow theprocess. Furthermore, they were not equipped to contribute on issues withoutassistance. Hence, it was necessary to ensure that the programme had aneducational orientation. To this end the Constitutional Education Programme wasdeveloped.This project adopted a participatory workshop approach. This exercise alsoconsisted of consultation with local structures of civil society to prepare for eachpublic meeting. Between February and August 1995, 26 public meetings wereorganised in all 9 provinces. More than 200 members of the ConstitutionalAssembly were involved at these meetings, 20,549 people attended and 717organisations participated.For most, this was the first experience in which they were able to directly interactwith their elected representatives. More important, this was the first occasion inSouth Africa that public meetings were held involving politicians who werepreviously at war with each other jointly talking to the people. The public meetingsheld were successful. Discussions were lively, ideas original and the exchange ofviews appreciated. These meetings also served to highlight the point thatconstitutions are about basic values affecting society and are understood by eventhe most uneducated. It was a humbling experience for Assembly members torealise that constitutional debates and issues are not the sole domain of theintellectual elite. They belong to all.The role of civil societyThe term public participation denotes the involvement of civil society in decisionmaking. When consulting with the public to develop a new constitution, 10
  11. 11. governments should utilise civil society structures for mobilising mutualcommunication efforts. In South Africa the National Sector Public Hearing Programme emerged out of aneed for the various Theme Committees in the Constitutional Assembly to consultand engage those structures of civil society with an interest in particular debates.Examples of this were the consultations on the different rights in the Bill of Rights,the judiciary, security services, and institutions supporting constitutional democracyand public administration. Each issue required consultation with a particular sectorof civil society.The preparation for these hearings was executed by a partnership between theConstitutional Assembly and structures of civil society. This was a deliberate part ofthe strategy. It avoided the possible accusation of being partisan. It also ensuredthe greatest possible representation in the hearings and an agenda that wasacceptable to all stakeholders.The majority of hearings took place within a four-week period. Given the limitedtime that the Constitutional Assembly had to develop and implement thisprogramme, it was to its credit that 596 organisations were consulted. Inaddition, Theme Committees hosted many seminars and workshops when expertopinion and further debate was required on specific issues. Many of theseworkshops included international experts.It was only after the Easter recess of 1996 that the issues of deadlock potentialcrystallised. To facilitate agreement, parties held various bilateral and multilateralmeetings. This did not augur well with both media and civil society alike.Moreover, consultations with affected interest groups were limited to those areasof deadlock only. Also, when these consultations did take place, they werecarried out with very little time to plan or prepare. With the benefit of an excellentdatabase, developed in previous rounds of consultations, the organisation ofthese consultations did not prove too difficult. However, this did not mean thatthere were no problems.The Constitutional Assembly had throughout prided itself on an excellentrelationship with structures of civil society. This relationship was based on theconcept of partnership in the process of drafting the single most important legaldocument. However, several structures saw themselves as still being outside theprocess. This was particularly so when political parties found it necessary to holdbilateral or multilateral meetings. The complaint was that even if consultations didtake place, the agreements reached between the elected representatives in theConstitutional Assembly still had to be open to comment by these structures.Some sectors which lobbied for particular views that were not carried inagreements became disenchanted with the process itself. Examples of this canbe found in the views of the Human Rights Committee, Business South Africa, 11
  12. 12. religious organisations such as the Roman Catholic Church, Animal Rightsgroups and the South African Gun Owners Association (SAGA), etc. Fortunately,this discontent did not reflect the views of the public or the majority of thestructures of civil society.The role of expertsExperts may take on various degrees of importance in constitution-making effortsdepending on prevailing attitudes in different countries. International advisoryboards were convened to give Eritrea expert input, while it was felt in Ugandathat while foreigners could provide examples of constitutions and constitution-making processes, all the work necessary to develop these things at homeshould be done entirely by Ugandans. There was likewise an unwrittenunderstanding in South Africa that no foreign experts would be used as advisorsto the constitution-making process beyond experience-sharing, althoughdomestic experts played different roles at different times in the negotiationprocess.During the early period of ‘talks about talks’, experts were employed in a non-partisan capacity to consider the various political submissions and formulate draftproposals. However, political parties also retained the services of various expertsto advise them on various constitutional and legal matters.In the final drafting of the constitution, experts were engaged in three differentcapacities. They were retained in Technical Committees attached to eachThematic Committee to assist and advise political parties in formulating variousconstitutional arguments. Additionally, a Panel of Independent Experts wasestablished as part of the deadlock-breaking mechanism.However, structures of the South African Constitutional Assembly often invitedforeign experts to assist in sharing experiences from other parts of the world tothe various public meetings. In spite of this, there was a generally held belief thatwhile experts would be indispensable, they would be engaged purely to advisethe politicians and not to play any more direct a role in the process itself. Therewas a determination that the process was not going to be led by academics andexperts. It was the elected and mandated representatives who were to play thisrole.ConclusionGiven the experience of African countries that have promoted process based andpeople driven constitutional reform arrangements, our task in this book is toexamine and evaluate the Zimbabwean process by relating these general “goodpractice” principles to the local circumstances.This was the task given to our contributors and in charting the path, pace,process and parties involved in the struggle for a new constitution in the country, 12
  13. 13. the historical context, normative process as well as the wider political issues allcombined to determine the trajectories and dimensions of the constitutionalreform initiative in the country.The next section traces this history and trajectory of constitutionalism inZimbabwe and concludes with a summary of the events that culminated in thereferendum of February 2000. 13