Zimbabwe missing from the knowledge economy

The 2014 edition of the Zimbabwe International Trade Fair was held from on the 22^nd of April 2014. The main purpose of the ZITF is to give companies and individuals from different background across the world an opportunity to showcase their innovative products and business solutions to their customers and potential customers with a view to increasing their consumer base for their customers and also for purposes of gaining market access by new companies and those beyond our borders.

 

 

As part of its annual tradition, the ZITF in partnership with the National Economic Consultative Forum this year organised an international business conference under the theme “TECHNOLOGY AND INNOVATION: A KEY PILLAR FOR ZIMASSET’s SUCCESSFUL IMPLEMENTATION”. This is a very apt theme especially at this critical juncture when Zimbabwe is repositioning and rejuvenating herself to arrest the myriad of challenges currently bedeviling the socio-economic landscape. Coincidentally, during the very same week of the exhibitions at ZITF, the international community was celebrating the World Intellectual Property Day – a day set aside by the international community to celebrate the important role of human creativity and innovation that is helping make the world a better and conducive place to live through the creation of new inventions and innovative products for use and consumption by people across the world.  Such platforms for dialogue, exhibitions and international events are particularly paramount and extremely significant as they help find lasting solutions to the socio-economic problems affecting countries like Zimbabwe and the world at the present moment. As such they should be always encouraged.
 

It cannot be assailed that the ZIMASSET is one of the most profound economic blueprints to have emerged in the history of Zimbabwe since independence. The fundamental aspiration of this policy document, that is, to see a robust and fast developing and sustainable Zimbabwean economy with benefits to its citizens and that is able to compete with other economies within the region, is only attainable if the ZIMASSET is successfully and objectively implemented. It is, indeed, encouraging to note that Zimbabwe recognises the primary importance and value of innovation and technology as fulcrums for economic development as these are espoused and firmly entrenched in ZIMASSET. Sadly, at the present moment, as outlined in the Global Innovation Index Report published annually by the World Intellectual Property Organisation, Zimbabwe ranks very low in terms of innovation and technological development. As such it is imperative for the country to put in place deft strategies to ensure that the country climbs the ladder of innovation and compete with the rest of the world.
 

As has been aptly observed by the Director General of the World Intellectual Property Organisation (the UN specialised agency charged with intellectual property matters to which Zimbabwe is also a member), Dr. Francis Gurry, innovation is central to economic growth and to the creation of new and better jobs. It is the key to competitiveness for countries, for industries and for individual firms. It is the process by which solutions are developed to social and economic challenges. And it is the source of improvements in the quality of all aspects of our material life. It must also be noted that innovation and its many benefits do not come without the investment of time, effort and human and financial resources. Technological developments as we know them with all the business, social, and economic benefits they offer to the people are a result of innovation and creativity. It is also the reason why we have intellectual property. It should be appreciated that innovation does not occur in a vacuum but through a consciously planned effort that recognizes the need to motivate the innovators so that they continue to bring new and better ideas to the country and indeed to the world at large.


The intellectual property system becomes critically relevant in the whole innovation discourse as it provides the required incentives through the granting of temporary monopolies to innovators to recoup the costs that are heavily associated with research and development particularly in the area of pharmaceutical research and drug development. For example the life saving HIV medicines which have drastically reduced the number of HIV and ADIS related deaths came as a result of innovation and technology but not without heavy investments into research and development.
 

The ability to manage and exploit innovation and the resultant intellectual property is key to success in today’s world in which intellectual, rather than physical, assets are one of the primary sources of wealth and competitive advantage. Recognition and protection of innovation through the intellectual property system is therefore a necessary precondition for development today.
 

Zimbabwe, however, like most developing countries, still has an underdeveloped system for intellectual property. This obviously is a clear testament to the fact that innovation and creativity have not been hitherto given much credence in the economic development discourse in the country. Given the loud and clear ambitions of value addition and beneficiation as espoused in the ZIMASSET policy document, there is now an ardent need to address how innovation can be entrenched and anchored in the socio-economic processes of the country. It is now trite and banal that in this globalised world, the cultivation of a culture of innovation and creativity is the only way to ensuring that the country’s products can compete with those from the rest of the world.
 

Several governments across the world have systematically used the intellectual property system as a key tool in their strategies to achieve their economic development goals. During the four decades after the Korean War, the Republic of Korea successfully transformed itself from a poor agrarian economy with a per capita income of less than US$100 into a highly industrialized country with a per capita income of US$12,000 and internationally recognized brands and technologies such as Samsung and LG. It did this through a systematic economic and trade development policy, including heavy investment in  capacity building, human resource development, incentives for technological innovation and the development of domestic intellectual property assets. According to a study by the Korea Development Institute, technological progress was one of the most important sources of national income growth between 1963 and 2000. The intellectual property system evolved in tandem with technological innovation and infrastructure during this period, helping to promote an inventive culture in the initial years of Korea’s economic development, when technology level was low. As South Korea moved from labour-intensive to capital intensive production in the 1970s, the intellectual property system provided a stable environment for facilitating technology transfer and Foreign Direct Investment, and encouraged the beginnings of local R&D in simple technologies through the protection of utility models and small inventions. In the next phase, the intellectual property system was an important catalyst for the development of indigenous technology by Korean companies, several of which have become global market leaders.
 

Cuba has also used the patent system in its strategy to develop its highly successful biotechnology industry, which was reported in 2000 to be one of the country’s largest export earners with annual sales as high as US$290 million, and employing 34,000 people. Cuba is reported to have international patents on 66 pharmaceuticals.
 

Singapore has put into place a strategy - coordinated across different government departments - to build it into an intellectual property hub, conducive to the creation, ownership, exploitation and management of intellectual assets. This involves not only training in intellectual property protection, exploitation and management, but also helping local SMEs audit their intellectual property assets and develop intellectual property management strategies. It is quite interesting to note that both South Korea and Singapore have insignificant natural resources yet they have managed to develop their countries to such an advanced state based on innovation and the exploitation of the intellectual property system.
 

Closer home, even South Africa is increasingly contributing significant capital to the development of industries dependent on effective copyright protection. For example, the South African government owned Industrial Development Corporation (IDC) - which contributes to economic growth, industrial development and economic empowerment through its financing activities - has been active in the media and motion picture sector, where it has invested ZAR500 Million in motion picture projects that can show sustainable commercial viability. Such sustainable commercial viability would not be possible without copyright protection. In addition, the South African government has introduced a Large Budget Film and Television Production Rebate Scheme, under the auspices of the Department of Trade and Industry (the DTI) that will refund local movie-makers 25% and foreign moviemakers 15% of their investment in film production in South Africa. This policy of investment in copyright-based industries recognises the long term value in contributing to innovative local industries.
 

While intellectual property protection is a necessary pre-condition of development in today’s world, such protection has to be supported by other appropriate policies and a deep commitment by the government to establish an effective infrastructure to process and make use of the intellectual property system. Without positive action by country, the intellectual property system will not fulfill its potential as a tool for development, growth and progress and at the same time innovation and technological development are retarded much to the detriment of economic and social development.
 

In line with the aspirations of the ZIMSSET, it is therefore important for Zimbabwe to consider and undertake the a number of activities with a view to ensuring the promotion of innovation and technological development for purposes of adding value of goods originating from Zimbabwe to be able to compete on global markets. Such activities include the restructuring of government Ministries and Department that are directly and indirectly responsible for promoting innovation and technological Development. Such departments include the Science and Technology Department within the Ministry of Higher and Tertiary Education and the Intellectual Property Office within the Ministry of Justice. In fact under the ZIMASSET policy, Ministries are required to reorient and realign their activities and administration for effectiveness and efficiency in the discharge of their mandate. It is quite disheartening to note that, the Intellectual Property Office in the Ministry of Justice for instance, still has the structure and same methods of administration of intellectual property issues as it was put in place in 1894 when the Deeds Registry was established by the then British South Africa Company. This is the structure of administration currently obtaining in the country despite the fact that the intellectual property landscape within which innovation operates has immensely changed. Surely the country cannot move forward unless such issues are addressed for purposes of fostering innovation. There is also need to improve the accessibility of the national and international intellectual property protection systems in terms of costs and ease of use. The government should also ensure the following:

• ensuring that intellectual property institutions are efficient and sufficiently funded;
• supporting intellectual property policies with sound economic management, good infrastructure and other appropriate policies in areas such as education, science and technology, culture, taxes, investment regulations, production and technical incentives, trade, and competition;
• establishing an active and coherent intellectual property policy coordinated throughout government bodies;
• educating local communities, businesses and the public on the potential benefits of the intellectual property system;
• providing assistance to innovators/producers/creators on how to use intellectual property protection to their commercial advantage and supporting efforts of stakeholder organisations in this area;
• bridging the gap between academic and research institutions, government and industries;
• making it a priority to strengthen and/or create a legal framework to ensure implementation and effective enforcement measures against intellectual property theft. There is also a need for clearly designated and sufficiently resourced enforcement institutions, supported by training, international cooperation and public education; and
• enhancing information and communication technological base of the country as this a critical area on which 90 percent of business transactions are conducted.

In conclusion, the ZIMASSET policy document is a very good initiative and forms the springboard to jump start the Zimbabwean economy that has been in free fall following the imposition of sanctions by western governments. As highlighted by the Vice President, Cde Joyce Mujuru at one occasion, the ZIMASSET policy document is an elastic document and Government departments should interpret it fluidly and objectively with a view to improving economic and social developments. As highlighted above, intellectual property plays a significant role in promoting innovation and technological development which are very much needed to exploit the vast natural resources base which Zimbabwe possesses. Without innovation and technology, the realization of economic and social development will remain dream as Zimbabwe will not be able to economically exploit the vast natural resources that lie in the all the corners of the country. The situation currently obtaining in the country where we are exporting most products in primary form is an undesirable one given the trite fact that raw products do not fetch much value on international markets. The unassailable fact is that innovation and technology are the game changers in promoting socio-economic development.

Peacebuilding and human rights - an agenda for democratic transformation by Gabriela Monica Lucuta

This article was posted on Insight on Conflict, which is Peace Direct's  resource for local peacebuilding and human rights in conflict areas. The writer Gabriela Monica Lucuta looks at the trends that have shaped international peacebuilding efforts. The writer highlights the important linkages between peacebuilding and human rights in the struggles for democratization, how these have been developed from the early eighties to the present day situations. The article makes interesting reading especially for peace building advocates in conflict countries like Zimbabwe where the relationship between peacebuilding and human rights realization are yet to be fully realized and how they relate to the struggles for democratization and human development for the benefit of mankind. The article can be accessed here.

African Union Pan-African Intellectual Property Organisation needs reexamination before adoption by Member States

The African Union (AU) has proposed the establishment of yet another new organ, the Pan African Intellectual Property Organisation (PAIPO) to deal with intellectual property issues on the continent. This follows hardly on the recent establishment of the African Union Commission on International Law (AUCIL) in 2010. The establishment of PAIPO followed a decision of the Heads of States and Government of the African Union (Assembly Council /AU/Dec. 138 (VIII) made in January 2007 on the need to establish a Pan African Intellectual Property Organisation. To that end the AU mandated its Scientific, Technical and Research Commission (AU-STRC) to come up with a draft legal instrument on the establishment of PAIPO. The AU-STRC came up with a draft statute that will be tabled before the AU Member States’ Ministers for Science and Technology in a meeting slated for 6-12 November 2012 in Congo. Since the publication of the first draft statute creating the PAIPO, a lot of criticism from eminent IP experts and scholars, most of which is very constructive, has been leveled against it from within and without the continent.

Many Africa countries are seeking to harness and promote innovation and creativity to foster economic growth and development in a quest to find solutions to a myriad of pressing public policy challenges. In this context, intellectual property as a discipline has assumed a growing importance in recent years while at the same time, it continues to be profoundly a contentious topic particularly in relation to issues such as promoting creativity in the digital environment, food security, climate change, access to affordable medicines and, more broadly, access to knowledge. African countries have been very vocal and also at the forefront of the global debates to achieve more balanced intellectual property system that is mindful of the aforementioned issues especially at the World Trade Organisation as well as within the framework of the activities of the World Intellectual Property Organisation.

 

While others have cautioned against heavy handedly criticizing the idea of having such a continental body in Africa before it comes into life, other scholars have rightly pointed out that the scope of the language of the Statute itself causes a lot of discomfort as it gives a wrong perception about the role of the IP system in socio-economic development.  A cursory reading of the provisions of the draft Statute from the very outset shows some serious deficiencies which Member States should reconsider before a final decision to adopt the Statute is made. On the face of it, the draft statute extols intellectual property as a panacea that will cure all the economic and social woes and bring about economic progress and development on the continent.  This view is predicated on the orthodox premise that intellectual property is an end in itself and not a means that can be employed to achieve the ultimate end result, namely economic progress on the continent. This is particularly evident from the objectives as outlined in Article 5 as read with the opening   provisions of the Preamble of the Draft Statute

 

As has been laconically observed by one IP scholar, Caroline Ncube in her article “Piping up on PAIPO”, such a view is now out of sync with the current realities since it reverberates the old, trite and banal statements from industrialized nations about intellectual property as a tool for socio economic development without providing a nuanced and balanced approach on how IP rights should be integrated in the socio-economic set up of African countries to achieve such economic progress. The scholar also rightly questioned the meaning of an “effective intellectual property system” as provided in opening paragraph of the Preamble of the PAIPO Statute. While this can be understood to mean striking a right balance between rights of owners of IP assets and those of the users as espoused, for example, in the Article 7 of the TRIPS Agreement, this should have been expressly stated in the Preamble. In its current form such a balance between the rights of owners of intellectual property system and the rights of users is conspicuous by its absence which has led many scholars like Professor Booker to conclude that the draft Statute seems to lean in favour of rights holders much to the detriment of users of the IP system. Such an interpretation is even supported by the view that the draft statute seems to be more focused on a strong protection and enforcement regime for intellectual property rights, which again in my view is a wrong perception that is not supported by any empirical evidence the world over.

 

 It must be underscored that different countries have different conditions that require different approaches to the utilization of intellectual property assets for economic progress to be achieved. The one size fits all approach which the AU seems to be advocating is out of sync with the modern realities the world over. One country may need a strong IP protection regime which might not necessarily be applicable to another country, hence, every country must have to decide a proper regime that will be relevant and suitable to its own national circumstances. The short of this is that the whole draft statute negates the view that intellectual property is only a means that can be used together with other approaches to aid socio-economic development in African countries rather than the view that prescribe intellectual property as a hallmark to address Africa’s economic challenges. Advancements of economic growth and development using the IP regime requires a consciously planned effort on how to integrate the IP assets into other development plans of any given country as informed by national circumstances.

It is very unfortunate that the framers of the Draft Statute failed to draw inspiration from the grounded activities of the African Group for WIPO Issues as well as the founding principles guiding the Development Agenda Group and the Like Minded Countries Group in their rich negotiations and discussions within the framework of the activities of the World Intellectual Property Organisation (WIPO) in Geneva.  These regional groupings have been diligently pushing to integrate IP issues into mainstream development mainly for the benefit of Member countries particularly the developing and Least Developing Countries. These groups have also come to the realization that intellectual property rights are not absolute in nature and also that they are not an end in themself but rather qualified rights which can be derogated from for public interest reasons and that they too are a means that can be employed for the public good. This is quite evident from the current debates within the WIPO Standing Committee on Copyright and Related Rights where proposals for draft legal instruments to allow limitations and exceptions to copyright for various public interest objectives are now at an advanced stage. Yet the draft statute of PAIPO seems to maintain that IP rights are absolute in nature. This of course will undermine the efforts of African States at the WIPO to fight for the rights of users of the IP system as well as the gains achieved through the flexibilities available to Member States under the TRIPS Agreement as clarified by the Doha Declaration for Public Health.

 

 It cannot be assailed that the Preamble language of the Statute is rather very limiting in scope as it appears that the main consideration is to combat piracy and counterfeiting only as espoused in paragraph 7.   The failure by the AU draft PAIPO Statute to make reference to the WIPO Development Agenda in any of its provisions is a serious drawback especially when such an Organ is being established to create a robust IP system for the African Continent. It should not be emphasized that African countries including many other developing countries and Least Developed Countries from across the globe worked tirelessly to mainstream the Development Agenda into the framework of the WIPO activities leading to the adoption of the WIPO Development Agenda in 2007.

The WIPO Development Agenda is a set of 45 recommendations that are aimed at integrating intellectual property in development activities for the benefit of Member countries. Quite surprisingly, the draft PAIPO Statute’s graveyard silence on this aspect leaves one wondering whether a proper groundwork was really done before this Draft Statute was drawn up. Surely, any progressive agenda on the continent for the utilization of intellectual property as one of the means to promote socio-economic development should have made allusions to this WIPO Development Agenda which has brought a paradigm shift in the way intellectual property is now viewed the world over. Such a paradigm shift was ably expressed by the Development Agenda Group (DAG) at its inception. DAG put it thus, ‘The adoption of the Development Agenda (DA) at the General Assembly of the World Intellectual Property (WIPO) in 2007 was a milestone in achieving the historic aspiration of developing countries for a paradigm shift in the international perspective of intellectual property (IP): a shift from viewing IP as an end in itself, to viewing it as a means to serve the larger public goals of social, economic and cultural development.  This vision has refuted the universal applicability of ‘one size fits all IP protection models’ or the advisability of the harmonization of laws leading to higher protection standards in all countries irrespective of the levels of development’

Africa is faced with so many challenges which have contributed to slow developmental progress on all fronts of the country economies. Such challenges inter alia include the high incidence of HIV and AIDS and as well as many other epidemics like tropical diseases as well as challenges of access to education and educational materials, poverty and high unemployment levels. These are issues of public interest which any forward looking policies should take into consideration. The draft PAIPO Statute as a policy instrument does not expressly outline these public interest considerations which has led scholars like Professor Brook Baker to question among other issues how, such a proposal will be consistent with Member States’ human rights obligations to progressively realize the right to health, including access to medicines; access to educational resources; climate control/mitigation and green technologies, and other public goods.

As such the draft PAIPO Statute is not grounded on the challenges particularly facing Africa at large hence it will be difficult to understand what really inspired those who are behind it. Such lack of focus is quite evident when one mirrors the PAIPO Objectives versus the provisions of, say for example, the TRIPS Agreement particularly Articles 7 and 8 which outlines the objectives and principles that inspired the birth of the WTO Agreement on the Trade Related Aspects on Intellectual Property. Articles 7 and 8 of the TRIPS Agreement provide express recognition for policy objectives that are fundamental to international intellectual property protection. Not only do they identify the goals of technological innovation and dissemination, but they also acknowledge the wider public interest agenda behind the TRIPS Agreement.

Paradoxically, the African countries have consistently criticized the harmonization agenda of intellectual property laws at WIPO (see for instance the discussions within the Standing Committee on Geographical Indications, Trademarks and Industrial Designs (SCT) as well as those within the Standing Committee on the Law of Patents) yet the draft statute establishing PAIPO in its preamble talks of the need to harmonise intellectual property legislation throughout Africa. This is apparent contradiction of policy positions especially at such an international level leaves a lot to be desired. This has led critics to argue that there is a lot of policy inconsistency and coherence at the African Union. Such a shift in policy at AU is very much detrimental to the many rich deliberations by the African Group at the WIPO where African States are pretty much antagonistic to the harmonization agenda for the acceptable reason that different countries are at different levels of development hence the harmonization of IP laws could be prejudicial to some Member States.

There have also been criticism especially from the civil society organization and academics alike that the whole process from the mooting of the PAIPO idea to the decision by Heads of States and Governments to establish such an entity to the coming up with the draft statute have been marred in obscurity and without much transparency. Such criticism is now without merit. Caroline Ncube, for instance, argued that, since news came to light that AU was putting forward the idea of having an IP continental body, the whole process has not been open for public participation and civil society and academics were not even consulted. She further pointed out that this is ironic since the African countries have been quite vocal at criticizing WIPO for being not transparent in the way it carries out its technical cooperation activities yet the continent also is guilty in the way it is handling the PAIPO issue. It is therefore prudent that the adoption of the draft statute by AU member States be delayed to allow for further consultations and deliberations in order to come up with a document that is well informed and very objective in character if African countries are to benefit from the proposed activities of the yet to be born entity.

 

In short, it must be underlined that the AU needs to go back to the drawing board and review the whole draft statute for it to be imbued with grounded perspectives that are critical for the economic progress and well-being of the continent. The above exposition has shown some of the inadequacies in the draft statute which needs to be corrected before the proposed entity come into operation. There is need for an inclusive approach which will see the participation of the African academia and civil society organization. There is also need for clarification of the fate of regional organisations such as the African Regional Intellectual Property Organisation (ARIPO) and the African Intellectual Property Organisation (OAPI) once the proposed continental body becomes operational. How will the continental body relate to these two regional organisations? What benefit will the proposed body bring to Africa which the WIPO is currently failing to provide? What is the fact of the flexibilities African states are enjoying under the WTO TRIPS Agreement? What is the fate of the current discussions and push for limitations and exceptions to IP rights by African States at WIPO? How will the proposal help Africa in achieving its MDGs targets including the fulfillment of the Abuja Declaration for Public Health? All these questions need clarification before a decision to adopt PAIPO is taken. It must also be highlighted that the African Union should understand the realities obtaining its Member States. Not all countries have IP offices under the Ministries of Science and Technology. For example in Zimbabwe, all IP activities fall under the Ministry of Justice, yet the AU has invited the Ministries of Science and technology to its meeting slated for 6-12 November 2012.

In conclusion, it must be highlighted that the call for the establishment of PAIPO under the auspices of the provisions of the current draft Statute is very misguided as it is not informed by the current realities obtaining in Africa. African countries rather need to pursue some grounded perspectives that will inform how intellectual property can be harnessed and integrated into the national processes to achieve economic growth and sustainable development on the continent. Such aspirations for economic growth and development cannot be achieved if PAIPO is adopted in its current form. The criticisms leveled against the PAIPO draft statute is a wake-up call for Africa countries to adopt and embrace plans and policies that are born out of concrete and grounded research perspectives rather than to uncritically absorb the received wisdom especially from those continents that have, since time immemorial,  never wished Africa well in its quest for development.

 

 

National Healing and Reconciliation in Zimbabwe: Challenges and Opportunities.

The Institute for Justice and Reconciliation in South Africa has published a monograph by a Zimbabwean, Mrs Pamela Machakanja of the Institute of Peace, Leadership and Governance at Africa University titled,"National Healing and Reconciliation in Zimbabwe: Challenges and Opportunities". The paper highlights the importance of instituting transitional justice mechanisms including truth seeking and truth telling if Zimbabwe is to close a sad chapter in its history and open a new chapter that instills durable and sustainable peace for all Zimbabweans. Indeed there cannot be durable peace in Zimbabwe unless the historical prejudices and imbalances are remedied as the victims will always seek revenge at personal level thus making it difficult to have a stable and peaceful nation. The paper is worth reading for those in the field of peace, justice and human rights and can be accessed here .

DEMOCRATISATION AND CONSTITUTIONALISM THROUGH CONSTITUTION-MAKING PROCESS IN ZIMBABWE

The cries and aspirations of Zimbabweans at this juncture is to see the country becoming more and more democratic, that is, one in which the sovereign power resides in and exercised by the whole body of free citizens directly or indirectly through a system of representation. In order to achieve this, there has to be a conducive legal and institutional framework, that allows, ensures and guarantees that there is true representation, regular free and fair elections, freedom of expression both before and after, freedom of the people to participate in the governing process, rule of law, respect for human security and human rights, transparency of government, accountability, separation of powers and political tolerance. These essential elements have to be provided for and the Constitution is the rightful place to have these properly entrenched. Therefore, a democratic Constitution is the one that truly enshrines these principles and the extent and content of that particular Constitution should emanate from the people themselves.

We leave in an era of Constitution-making. It must be underscored that writing a Constitution is part of the many peace processes as history from other jurisdictions at varying historical episodes clearly demonstrates. New nations and radically new regimes that seek democratic credentials make writing a Constitution a priority. It is, therefore, generally agreed nowadays that the process of making a Constitution is as important as the final document itself. Put differently, it can be said that any Constitution is as good or as bad as the process through which it is made. The Zimbabwean High Court Judge, Ben Hlatswayo succinctly summarized the point thus, “modern ideas on Constitution making place emphasis on popular participation and widespread consultation in order to produce a Constitution that will endure and which the people feel is truly their own” The idea of political leaders bringing a Constitution to the people has been thrown into the dustbin of history. Thus the days of leaders evoking the image of the biblical Moses coming down from the mountain with the Ten Commandments carved in the stone for the benefit of the children of Israel is long gone! Today, people do not want Constitutions privately negotiated by “people’s leaders” and imposed on the rest of society. People want to participate actively in the making of their own supreme law. As part of entrenching peace democracy and human security the Zimbabwean government, therefore, needs to take this issue seriously as the Constitution making process is a basis for a consensus in nation building.

It must be noted that genuine public participation requires social inclusion, personal security and freedom of speech and assembly. A strong civil society, civic education and good channels of communication between all levels of society facilitate this process. Only considerable commitment of time and resources will make genuine public participation possible. The Constitution of new constitutionalism is a conversation conducted by all concerned, open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable. Indeed, it is in such an environment of conversational constitutionalism that the issue of a right to participate in making a Constitution arose.

A democratic Constitution is no longer simply one that establishes democratic governance! It is also a Constitution that is made in a democratic process. There is thus a moral claim to participation according to the norms of democracy. A claim of necessity for participation is based on the belief that without the general sense of “ownership” that comes from sharing authorship, today’s public will not understand, respect, support and live within the constraints of constitutional government. In other words, participatory Constitution making has become a criterion of a legitimate process and therefore the norms of democratic procedure, transparency and accountability that are applied to daily political decision making are now also demanded for constitutional deliberation.

A right to public participation in Constitution making creates a stronger ground on which to stand. Major international human rights instruments and national Constitutions do grant a general right to democratic participation, although one that is lacking legal teeth and effective enforcement. The right to participate in Constitution making might logically be derived from the general meaning of “democratic participation” in the UN Declaration on Human Rights of 1948 in Article 21 and especially Article 25 of the International Covenant on Civil and Political Rights. Article 25 establishes a right to participate in public affairs, to vote and to have access to public service. Regional and transnational declarations such as the African Charter on Human and Peoples Rights (1981, Article 13.1), the Asian Charter (1998, Article 5.2) and the Inter-American Democratic Charter (2001) all declare a general right to political participation. This therefore underscores the point that it is now universally accepted that a democratic Constitution-making process is critical to the strength, acceptability and legitimacy of the final product.

As Zimbabwe has just embarked on journey of negotiating and promulgating the supreme law of the land it is imperative that the inclusive government take cognizant of the right of the people to decide what they really want. The SADC Guidelines on Constitutionalism and Constitution Making of 2005 encapsulates the point that the process must be people driven. It is the duty of the incumbent government to facilitate the process without seeking to control and dominate the exercise. The composition and functioning of the Constitution making bodies should aim at maximum inclusivity and the broadest informed participation.

Public participation in the whole exercise must be facilitated by concerted efforts at raising public awareness (just as what obtains in pre-election times), encouraging and assisting the public to have its views registered and fully engaging the public in an open and free atmosphere and also taking into account the needs of other special interests groups like children and those with disabilities. Experts can assist by ensuring that the views of the public are faithfully reflected during the whole process while jealously guarding against real temptation of imposing their own views under the guise of “technical input”.

It must not be underplayed that the task of writing a Constitution is a mammoth, arduous and complex task. But it is a necessary and important process in achieving the dreams of Uhuru. This is a golden and classic opportunity for the Zimbabwean society, both local and Diaspora, to assert their democratic right as part of peace building and democratization. Any attempts by the politicians of the day to hijack the process must be jealously guarded against.

Innocent Mawire is a Human Rights Lawyer and writes for Peace and Justice Support Forum. He also co-authors International Law Observer (www.internationallawobserver.eu). He can be contacted at i_mawire@yahoo.com

Building True, Durable and Sustainable Peace in Zimbabwe.

The challenge confronting Zimbabwe today since the signing of the Global Political Agreement that gave birth to the inclusive government and the political transitional discourse obtaining in the country today is how to extricate the nation from a past that continues to weigh down and haunt the entire population. Many organisations and individuals in this country have made a call that to leave the past alone is the best possible panacea and the only way to avoid a delicate process of transition or to avoid a reversion to the horrendous past that was characterised by extensive repression and gross violations of human rights and humanitarian law.

As the political transition is unfolding in the country after a decade period of violence, our society is now confronted with a moribund legacy of abuse, which requires concerted efforts of all the stakeholders to map the best way to democratise the country and build sustainable peace. Questions are being raised with regards how best our nation can be healed. It is our view that society has to come together and deliberate on these issues. In order to promote justice, peace and reconciliation, government officials and non-governmental advocates alike should consider both judicial and non-judicial responses to violations of international human rights law and international humanitarian law that occurred during the preceding years. Such responses, inter alia, include prosecuting individual perpetrators, offering reparations to victims of state sponsored violence, establishing truth seeking initiatives about past abuses, reforming institutions like the police and the courts and also lustration, that is, removing perpetrators from positions of power.

It cannot be assailed that transitional justice is an essential ingredient for any society emerging from an abusive and repressive past tainted with a horrific and brutal human rights record to a democratic country imbued with principles that guarantee human rights respect. Surely victims and survivors need to know the truth as a means of bringing closure to their suffering.

The Oxford-based historian, Timothy Garton Ash, once reminded us that while victims are cursed by a good memory, perpetrators are blessed by an ability to forget. Thus the failure by the government to acknowledge the horrendous human rights violations it visited upon the Ndebele ethnic group in the early 1980s has to date increased the tensions and rift in our society. To date, many people in Matebeleland and Midlands provinces still lament that the then ZANU PF government has never done justice to them. Justice demands that perpetrators be brought to account for their heinous misdeeds in order to bring a measure of closure on the past and to be a kind deterrent that is needed to avoid the repeat of such sad chapters in the history of our country. Prosecution of those who violate people’s rights with impunity is a minimum ingredient for the rule of law and an essential requirement for the protection of human rights.

It is important that our country has, at this juncture, been given the opportunity to lay a firm and durable foundation for building sustainable peace and a culture of human rights respect. The transitional period has paved the way for the Constitution-making process- the much-venerated issue anticipated by the wide section of the society since independence from the colonial yoke. It must be underlined that the Constitution to be born out of this process must provide a historic bridge between the past of a deeply divided society, characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all Zimbabweans regardless of political affiliation. South Africa is a classic example of a country that used a similar golden opportunity to instigate a smooth transition from the apartheid regime to a constitutional democracy that is obtaining today in that country. As a logical corollary, the lessons learnt from South Africa must also guide and inform us in our Constitution-making process but also taking into account our own national values and ethos.

The pursuit of national unity, the well being of all Zimbabweans and durable peace requires reconciliation amongst the people and reconstruction of society, which hitherto, has been damaged by the repressive and oppressive environment in the preceding years. Bust such reconciliation can only be attained, not by sweeping the past atrocious history under the carpet as mere aberration but by pursuing various profound processes of transitional justice mechanisms.

Undeniably, the adoption of a people driven constitution (the content of which must be agreed upon by all citizens) lays the secure foundation for all the people of Zimbabwe to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles and a legacy of hatred, fear, guilt and revenge. These challenges should now be addressed on the basis that there is need for understanding but not for vengeance, a need for reparation and not for retaliation, a need for ubuntu and not for tyrannical victimisation.

This invariably is a delicate process which essentially means that the Constitution as a supreme national document founded on the will and aspirations of Zimbabweans seeking to close a sad chapter and opening a new chapter in the history of our nation, must be imbued with the values, principles and aspirations that identify with Zimbabweans in accordance with international human rights norms. It is against this background then that Zimbabweans can enjoy durable peace established by the rule of law and supported by strong accountability systems.

Each and every one of us, individually and institutionally, has a responsibility therefore to establish processes for consensus building of our nation and to facilitate transitional justice and reconciliation in our nation that has been (and still is) extremely polarised and antagonised on political and ethnic lines to the detriment of international human rights norms and standards. In these we firmly believe that a prosperous and democratic Zimbabwe, where all people across the political divide and from different ethnic backgrounds can live peacefully and in harmony with each other, can be realised if the current transitional process is handled competently.

Innocent Mawire is the founding Director for the Peace and Justice Support Forum (Zimbabwe)

Zimbabwe: Engaging the Inclusive Government

This is the title of the report from the International Crisis Group detailing the positive signs emerging in the socio-economic and political set up in Zimbabwe since the signing of the Global Political Agreement. It is really encouraging to note that the international organisation has a positive attitude and hope for the new administration. The detailed report can be read here. Indeed what is now needed is for the international community to rally behind Zimbabwe and support it in all possible ways.