Draftsmen of the Constitution

Constitutions in Rhodesia have come and gone - but a man who has been involved in the writing of three of them is still there.


Mr. George Smith

He is lawyer Mr. George Smith, chairman of the new committee appointed to draw up Rhodesia's latest constitution, which will give the country a majority rule government.

He was a member of the team which drafted the 1965 Constitution; he wrote the 1969 Constitution single-handed; and now heads a team of lawyers which will write a document setting out the principles under which the new state will be governed.

The 44-year-old Gatooma - born lawyer is highly regarded by his colleagues in the profession. They say that this assignment, entailing enormous responsibility, could not be in better hands.

Best In The Field

One said: "One has to have a unique mind, a devoted and special interest in legal draftsmanship. Not every lawyer has it, but George is undoubtedly the best in this field in the country."

Constitutions are made to last- that of the United States is still going strong after 200 years, although many amendments have been made. But, especially in Africa, constitutions often change with the political circumstances of a country.

Rhodesia is no exception. It has seen four Constitutions in 55 years in 1923, 1961, 1965 and 1969, in addition to the Federal Constitution, written in 1953.

Tight Schedule

The constitutional drafters have a tight schedule. The March 3 internal settlement agreement sets the date for the changeover to one-man - one - vote majority rule as December 31 this year. And before that the new Constitution has to be accepted by the Transitional Government, approved by the white electorate at a referendum and ratified by Parliament. Then a general election has to be held.

Time may be of the essence, but, says Mr. Smith, "This type of work cannot be rushed. You have to be careful because you are compiling what will become the fundamental law of the country."

The drafting team has to work from political guidelines from the Executive Council, comprised of Prime Minister Ian Smith and the three black leaders - Bishop Muzorewa. the Rev. Sithole and Chief Chirau - and said Mr. Smith, the time factor would depend much on political decisions.

"As I see it, our first job will be to set out areas where we will need a political decision from the Executive Council.

"For instance, it is no secret that ZUPO would like to see a Senate in the new Parliament. But we will not be able to draft a provision dealing with the legislature until we have had instructions on whether provision is to be made for a Senate.

"Then there is the question of Head of State. Will there be a constitutional-type President as we have now, or will there be an Executive type President? This latter format is most popular in African countries today, based on the United States system."

Political Guidance

Another very sensitive area which will need political guidance, is that of preventive detention.

"In all previous discussions we have had with British Governments we have talked on whether there should be a provision for preventive detention outside times of a state of emergency.

"This matter first cropped up when India became independent in 1947 and powers for preventive detention were written into constitutions in British Guyana and Mauritius after they became independent. Most other countries, however, say one cannot have preventive detention unless there is a state of emergency.

"This is purely a political decision, but we will look at it and might well make a recommendation to the Executive Council."

There are some less contentious areas where the committee can make provisional drafting now, such as the Declaration of Rights, citizenship and other matters.

Provisions common with the Declaration of Rights in other constitutions will be submitted and should be accepted automatically.

Mr. Smith said he expected people would want to submit their own ideas or give oral evidence to his committee, but:

"We are not a commission and will therefore not automatically be seeking outside views", he said.

"We may wish to seek outside advice and should this be necessary I will seek permission from the Government."

Expertise

The committee already has plenty of expertise within its own ranks. Mr. Smith has been in Government service for more than 20 years, helped with the draftings of the 1965 Constitution, attended the Fearless talks in 1968, and became the first Director of Legal Drafting on July 1, 1971. Since then he has been at the Prime Minister's side as his legal adviser at every major political conference.

Apart from handling constitutions he has been responsible for writing the 1969 Electoral Act and the Land Tenure Act of the same year. He also prepared the revised edition of the Laws of Rhodesia, which came into operation in 1974. He was awarded the ICD in 1970.

Former Prosecutor

Mr Smith will be assisted by Mr John Anthony Robert Giles (37), a former prosecutor in the Salisbury Magistrates' Court and High Court, who has been drafting Bills of Parliament since 1971 and is a part-time lecturer at the University of Rhodesia.

Most of the other men on the drafting team have legal back- grounds. Dr Ahrn Palley (64), nominated by the UANC, was born in Cape Town. He is a qualified doctor as well as an advocate.

He was a Member of the Parliament for the Dominion Party, but resigned after a year over a disagreement with a party caucus decision.

In 1962 he was elected as an Independent and was re-elected in 1965. His wife, Claire, is a lecturer in civil and constitutional law in Britain.

The other UANC member is Mr Enock Dumbutshena (58), who trained as a teacher in South Africa and taught in Rhodesia before studying law at Gray's Inn, London.

ZUPO is represented by Chief Edgar Tiyeni Musikavanhu (46), a former teacher and a member of the Council of Chiefs, and Mr. Lindsay Hugh Cook (49), a senior partner in a Salisbury firm of attorneys, who has practised law for 25 years in Rhodesia

ZANU (formerly ANC Sithole) has Mr David Zamuchiya, a law graduate of the University of Zambia, who attended the Victoria Falls constitutional conference as a member of the team of legal advisers to the ANC.

He also attended the Geneva conference on Rhodesia in 1976 as a legal adviser to the Rev. Sithole's delegation.

Private Practice

Mr Zamuchiya has a private legal practice in Zambia. He is teamed with Mr Bob Stumbles (44). who was born in Salisbury and is the son of a former Speaker of Parliament.

He graduated as a Bachelor of Law in South Africa and gained a master's degree at Oxford University and also studied at Gray's Inn.

The amount of work ahead for Mr Smith and his colleagues is daunting and many constitutions will be checked during their deliberations.

The Salisbury accord document signed by Mr Ian Smith, Bishop Abel Muzorewa, the Rev. Ndabaningi Sithole and Chief Jeremiah Chirau was the eighth written by George Smith. He wrote four himself before he was satisfied - and then the politicians had their say.

Relaxation

When he is not working, Mr Smith likes to relax with his family, play tennis or squash, or potter in the garden. But he will not have much time for relaxing now. "From my experience, politicians make decisions and then want to see the results today, not tomorrow," he said.

End of Article.

Extracted and recompiled by Eddy Norris for use on "Our Rhodesian Heritage" blog. No financial gain is intended from recording these memories of Rhodesia on the said blog or the distribution of information to those interested.

Original material, Focus on Rhodesia, Vol.3 No 6 , Pages 12 & 13, dated June 1978 made available by Mrs. Anne Shaw. Thank you Anne.


Comments are always welcome, please direct them to Eddy Norris on orafs11@gmail.com