A Critique on the Zimbabwe Constitution by Never Gadaga in Harare, Zimbabwe
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Zimbabwe is a landlocked southern African country with a population of 11,4 million people (1992 Census). The country acquired its independence in 1980 after 90 years of British colonial occupation. Its constitutional history went through four phases. The phases were marked by the period of British monarchical rule from 1890 to 1964, the Rhodesian colonial era when the white minority led by former rebel leader, Ian Smith, unilaterally declared independence, the transitional period to Independence and the black majority rule post-independent period.
Therefore, the Constitution of Zimbabwe was drafted at Lancaster House in 1979 in the context of the phases that the country’s history went through. The constitutional agreement that formed the basis of the Constitution was characterized by two dynamics. These dynamics derived from the Anglo-Rhodesian alliance on the one hand, and the Patriotic Front, a conglomerate of the black nationalist movement, on the other hand.
Despite the fact that the Patriotic Front had waged a seven-year armed struggle to topple the Rhodesian government, the Anglo-Rhodesian alliance literally dictated the terms of the Constitution in their favour because of their stronger position both militarily and politically. This, inevitably, meant a constitutional document that guaranteed Anglo-Rhodesian interests at the economic and political levels.
The Patriotic Front went to war in order to achieve black majority rule, repossess land that had been expropriated by the British Crown and the Rhodesian white minority, and create a conducive environment for black economic empowerment. Instead of coming out with guarantees to blacks on these contentious issues, the Lancaster constitutional document made specific or binding commitments on the material concerns of Rhodesian whites with regard to:- a. land rights b. property rights c. pension rights In the same breath, the black majority was not able to address the burning question of land repossession as envisaged by their leadership during the war. During the first ten years of independence, the government of Zimbabwe could not equitably tackle the land issue because of the twin guarantees on land and property rights that were stipulated in the Lancaster House Agreement and the legal encumbrances that were contained in the draft Constitution that followed, thereafter. At best the Constitution guaranteed civil and political rights that had been denied the black majority for 90 years; at worst, the question of land and property remained a dream.
The constitutional provisions that the Lancaster Agreement assured for the black majority, , at Independence in 1980, were:- Sections 11-24 of the Constitution
- protection of the right to life
- protection of the right to personal liberty
- protection from slavery and forced labour
- protection from inhuman treatment
- protection from deprivation of property
- protection from arbitrary search or entry
- provisions to secure protection of law
- protection of freedom of expression
- protection of freedom of assembly and association
- protection of freedom of movement
- protection from discrimination on the grounds of race
- enforcement of protective provisions
The black majority were able to litigate against inhuman treatment or arbitrary search or entry, exercise due process rights, form political parties or associations to articulate public agenda and vote in local government, Parliamentary and Presidential elections. The fundamental rights and freedoms specified in a Declaration of Rights in the Constitution are subject to value judgemental limitations which some experts have criticized as ‘giving with one hand, and taking with the other.’
Prima facie, Section 12 of the Constitution in the Declaration of Rights says “No person shall be deprived of his life intentionally…” The Constitution goes on to state that this fundamental right shall be set aside for, among other limitations, ‘the purpose of suppressing a riot, insurrection or mutiny…’ Such provisions have proved to be controversial in the case of involuntary disappearances and extra-judicial executions. Incontrovertible examples to this effect, are the disappearance of Ms. Rashiwe Guzha at the hands of intelligence operatives five years ago and the death of Captain Nleya, almost at the same time, in mysterious circumstances. The two cases have not yet been resolved, despite efforts by their families and human rights organizations to establish the circumstances surrounding their fate.
The period from 1980 to 1990, has been marked by a transition from white minority rule to black minority rule. The vision of black majority rule slid to the back burner. The ruling party declared socialism as its ideology. This ideological position by the government of Zimbabwe unleashed an era of state control of the strategic sectors of the economy, a command economy, half-hearted attempts at public ownership of the means of production through Model B Cooperatives. There emerged an indigenous clique within the Establishment, which became highly economically empowered through deliberate self-enrichment at the expense of the black majority.
At this time around 1991, a marriage of convenience was established between the rich white minority and the emerging minority black aristocracy. This convergence of interests saw the dispossessed black majority being marginalized. The Zimbabwe dollar became overvalued, subsidies that supported deficit-ridden parastatals shot up, inflation ran rampant and the budget deficit catapulted beyond 50 percent of the Gross Domestic Product. The IMF and the World Bank introduced an economic reform package that has hit the poor hardest.
These developments led to the groundswell of opposition that has engulfed the country in the past five years. Opposition parties led by moderate black nationalist leaders during the war of liberation made representations on an agenda for constitutional reforms. The agenda touches on the following provisions:-
- that Section 27 under “The President” be amended in order to reduce the President’s term to a two-year term
- that Section 30 under “Presidential Immunity” be amended so that the President shall be impeachable during his term of office, and not after his term as specified in the Constitution
- that Section 31 under “Vice Presidents” be amended so that there shall be one Vice-President, and not two Vice-Presidents as applies in the Constitution at the moment
- that Section 31H under “Executive Functions of President” be amended so that the sovereign authority of Zimbabwe shall vest in the people, and not the President as currently specified.
- that Section 31I under “Prerogative of Mercy” be amended so that the prerogative of mercy shall be subject to modulation by a non-partisan committee
- that Sections 59 and 61 under “Delimitation Commission and Electoral Supervisory Commission be amended so that a non-partisan body shall exercise appointive powers to these Commissions. This would curb the practice of electoral fraud.
- that Section 76 under “Attorney-General” be amended to enable his/her Office to serve with impartiality. The amendment would entail that the Attorney-General’s Office would change from it’s Executive status to a non-partisan status. The above recommendations indicate that the present Constitution of Zimbabwe was not consensual and participatory at the Lancaster House draft stage. After 1980, the ruling party made their own amendments to suit the post-independence dispensation.
President’s Term of Office The raging question in the current constitutional reform wrangle between civil society and the ruling party is the issue on the President’s term of office. The ruling party has dilly dallied over this issue for the past ten years. The proposed amendment of the President’s term threatens to tear the ruling party apart. The President suspended a Zanu-PF parliamentary back bencher, Mr. Dzikamai Mavaire, for proposing a motion in Parliament two months ago that the President’s term be reduced to two five-year terms.
Electoral Flaws Opposition parties, non-governmental organizations and civil society have taken the government to court over alleged chronic flaws in the electoral system. The courts have ruled in favor of the litigants, in the majority of cases. Their argument is based on charges of blatant cheating in the national and local government electoral registers, for instance, the appearance of false addresses, to enable voters outside a constituency to vote in favor of a party’s candidate.
Independent candidate, Margaret Dongo, was declared the winner in controversial circumstances in the Harare South constituency two-and-a-half years ago. The result of the Mutare Mayoral election two years ago was declared in favour of an Independent candidate, Mr. Lawrence Mudehwe-who later returned to the Zanu-PF fold- in similar controversial circumstances. Independent candidate, Mr. Fidelis Mhashu, has filed an application to overturn the result of the Chitungwiza Mayoral election which was declared in favor of Zanu-PF candidate, Mr. Joseph Macheka.
Strategic Recommendations The opposition and civic organizations maintain that their constitutional reform agenda should form the basis for a national consensus on a new Constitution for Zimbabwe. They have recommended the South African model in which all shades of opinion and interest groups contributed an input into the post-Apartheid constitution.
In his critique, Professor Welshman Ncube of the University of Zimbabwe, proposes: “The constitution we want now must be participatory. It must reflect national unity, consensus on politics, governance and electoral process.” In fact, his main contention is that a single group or political party should not monopolize the making of a national constitution because its legitimacy would be compromised.
In the same vein, the Zimbabwe Human Rights Association Executive Director, David Chimhini, argues that the concept of participation in theory and practice must be applied in every constitutional cycle, starting from popular debate, broad-based policy inputs by all organs of civil society, draft, formulation, implementation and interpretation.
This author shares the view by critics that the Zimbabwe Constitution must be scrapped since it was originally meant to service both white and black minority interests. This constitution is a pot pourri of instruments that were deliberately designed to perpetuate white minority rule in then Rhodesia. Those instruments were later reinforced by those of the black minority leadership in order to perpetuate their rule over a marginalised, dispossessed and disenchanted civil society.
The Catholic Commission for Justice and Peace Executive Director, Mr. Mike Auret, noted that human rights groups were concerned that unless there was a democratic supreme law in Zimbabwe, the rights of citizens would be in great danger as proved during the civil protests over tax and price increases. Six people were shot dead by security forces during the rioting.
National Constitutional Assembly The National Constitutional Assembly, an association of civic organizations and a diversity of other interest groups which seeks to agitate for a new constitution, argues that the fourteen amendments that have been made by Parliament in the Constitution so far, were designed to entrench the powers of the President into an Executive Presidency. The notion of an Executive Presidency implies a presidential dictatorship; that is the President is above the law; the President can wittingly set aside any law in the country; he can pardon people in whom he has a vested interest like when he invoked the provision of Presidential Clemency on suspects who allegedly shot former Mayor of Gweru, Mr. Patrick Kombayi eight years ago. Suspects who killed members of opposition parties or burnt and stoned their houses during the independence euphoria between 1980 and 1990 were pardoned by Presidential Amnesty.
Electoral Systems One of the sticky issues about the Zimbabwe Constitution is that the present electoral system that is based on the first-past-the-post system is not representative of minority political and ethnic groups in the country. The observation is premised on the empirical fact that since Zimbabwe is a multi-ethnic country, its electoral systems should be all-inclusive. Disadvantaged political groups have made numerous submissions to the government, the Attorney-General and Parliament to institute the system of proportional representation in the political process. This system, in their view, would enable all political interest groups to be represented in Parliament so that their views and opinions are heard.
The first-past-the-post system has been effectively used by the ruling party to marginalize white and mixed race political parties in both local government and national elections. This electoral ploy based on the single member constituency has equally alienated black opposition parties from power sharing, as they can not garner enough votes to secure representation in Parliament. After all, the ruling party has been financed by the tax payer’s money using the Political Parties (Finance) Act.
Composition of Parliament Professor John Makumbe of the University of Zimbabwe notes that the composition of Parliament is inherently problematic because of the President’s constitutional privilege to appoint 20 seats in Parliament. Makumbe warns that “if the President’s political party loses a parliamentary general election by a margin of anything less than 20 seats, the Presidential power of appointing members of Parliament can be used to ‘overturn’ the verdict of the people.” This implies that the President appoints Governors to the eight provinces in the country. Governors automatically become members of Parliament. In addition to that, he appoints 12 non-constituency members to Parliament.
Another proposal by the opposition and civic organizations is that Zimbabwe should return to a two-tier parliamentary system. The two-tier parliamentary system would provide for a second chamber composed of distinguished personalities from all sections of society. The second chamber would form a committee that would be tasked with impartial appointments to the Delimitation Commission, Electoral Supervisory Commission, the Registrar-General’s Office, Diplomatic posts, Office of the Ombudsman, etc. Political analysts view the government’s delays in heeding the call for constitutional reform as a recipe for political disaster. There is national consensus within civil society that governments should choose the ballot box instead of civil strife. Analysts view the bloody developments in the Great Lakes region with concern. We should prepare ourselves for peace and unity guaranteed by justice.
