The escalating strife in Mozambique took centre stage at a statutory meeting of the Standing Committee on Democratisation, Governance and Human Rights and Constitutionalism of the Southern African Development Community Parliamentary Forum (SADC-PF). Members of the committee recognised that if this fragile situation is not attended to, it could lead to a much bigger human catastrophe and spill over into neighbouring states.  

A motion was raised by Mr Darren Bergman, a South African delegate, to take note of the human catastrophe in Mozambique caused by the escalating conflict involving heavily armed rebels. This set in motion a unanimous rebuke of the rebels for the human suffering arising from the conflict. The committee called for the immediate provision of support to the Mozambican army to quell the instability. Emigration as a result of the conflict could destabilise the region, amidst challenges in the region arising from Covid-19.

 The committee welcomed pledges from SADC member states to provide technical support to the Mozambican army, to protect civilians, stabilise the current situation and bring about the rule of law, peace and order.

 In her opening remarks, the Chairperson of the committee, Ms Jeronima Agistonho, urged the SADC-PF to be proactive in addressing challenges in SADC nation states. If SADC is only reactive, they will betray public trust in the mandate and constitutional authority of parliaments. Furthermore, SADC-PF should promote public participation to ensure that it is involved in law-making processes. These steps will assist in entrenching constitutionalism and the rule of law.

 Prof Lovemore Madhuku presented his opinion on constitutionalism and the rule of law. In his view, for constitutionalism to thrive parliaments must ensure that they have “checks and balances to make sure that we have good provisions that limit the exercise or abuse of power by the executive”. However, the concept of the rule of law should not be embraced blindly because “there are laws that supress human rights and that are unjust. But we must ensure the laws that are upheld are just and equitable for the culture of constitutionalism to thrive.”

He further argued that not every constitution satisfies constitutionalism, nor upholds justice and a bill of rights. Constitutionalism and the rule of law can only thrive if the principle of the separation of powers of the three arms of the state is maintained. Parliament have a crucial role to play in this regard and they should refuse to be the rubber stamps of the executive.

Prof Madhuku recognised the importance of parliaments’ law-making role. “Through this process, parliaments are in a position to ensure that the rule of law and constitutionalism are promoted and safeguarded by the prescripts of the constitution.” Parliaments must be capable of scrutinising the nature and content of the bills put before them in their respective committees to ensure that they uphold the principles of constitutionalism and the rule of law, the professor said.  

Oversight, monitoring and accountability are central to constitutionality and the rule of law, he claimed. “The executive has to appear before parliaments and be interrogated on their policies, to ensure accountability and monitoring of their governmental framework and key performance areas. This will ensure that parliaments in the region remain the voice of the people. This could enhance the concept of constitutional democracy in the region.”

Prof Oagile Dingake began his presentation by agreeing with Prof Madhuku that some countries may have a constitution that is not based on constitutionalism. However, the wanted to assure his listeners that SADC’s commitment to human rights is beyond question, reflected in its promulgation of model laws on HIV/Aids, the eradication of child marriage and elections. Nonetheless, there has been regression “in deepening constitutional democracy in some nation states in the region”.

 “Even though elections may be held regularly as prescribed in various constitutions of member states, their constitutionality are always challenged. And the prevailing view is that some of the independent electoral bodies are deemed not independent enough. They are perceived as nothing more than appendages of the executive.”

Regarding the law-making processes, Prof Dingake is of the view that for this mandate to be fully achieved, parliaments have to set their own budgets, rather than the executive performing this role. He further cautioned parliaments against the encroachment of the judiciary into the law-making space. “There are countless examples to cite in this regard and is a development that agitates against the critical principles of constitutionalism which pledges for the separation of powers between the executive, judiciary and legislature.

Speaking on the role of parliaments in curbing corruption and strengthening accountability in southern Africa, Prof Dingake registered his reservation about the anti-corruption bodies that are under the influence of the very executive that they accuse of corruption. “Parliaments have to ask themselves if these bodies really are independent. Are they willing to go after everyone, irrespective of his/her position in the state or society? And are they capable of criminalising corruption?”

To enhance the fight against corruption, nation states must enhance the transparency of procurement processes, he suggested. Members of parliaments and the executive must also be transparent in declaring conflicts of interest in procurement. He also called for the establishment of policies or legislation to protect whistle-blowers against any backlash. If whistle-blowers are not protected, the battle against corruption is lost, he said, because without their participation, the anti-corruption crusade won’t reach is desired outcomes, he maintained.

Abel Mputing
15 April 2021