Lessons for Zimbabwe’s constitutional reform process

Having inherited a constitution negotiated between the colonial and liberation forces at the dawn of independence (the Lancaster House Constitution) in 1979 and having amended that constitution 19 times in the last 30 years, Zimbabwe is trying for the second time in just over a decade to completely overhaul its constitution.

There is a desire for the constitution to be people-driven.
There is a desire for the constitution to be people-driven.

The first attempt to create a new constitution failed when voters at the referendum rejected the proposed constitution in February 2000. The major grievance was in regards to the process of making the new constitution, which civil society groups criticised as dominated by, and intended to advance, government interests.

The current process, which is led by a Parliamentary Committee (Copac), is part of the agreed package of reforms in the Global Political Agreement (GPA) that should culminate in a referendum in 2011. Experience since independence has demonstrated the government’s pre-occupation with the constitution as a

means of legitimising its power and less as a mechanism for limiting such powers. A number of the 19 amendments have served to reverse the effect of decisions made by the courts of law and some have even ousted the jurisdiction of the courts leading effectively to the concentration of power within the executive branch of government.

Arbitrary power

The government appears to have been interested only in legality/constitutionality and paid scant regard to constitutionalism by which principles governmental power must be limited.

This article demonstrates the dearth of constitutionalism by analysing some court decisions and constitutional amendments that have effectively eroded the limits on governmental power. This article also warns that a narrow focus on constitutionality can mean that instead of the constitution being the supreme legal document controlling the exercise of state power, it simply becomes an instrument for autocratic control, legitimising rather than preventing arbitrary power – the very antithesis of constitutionalism.

This article demonstrates that constitutionality is not enough and that to promote democracy, it is necessary to implement the principle of constitutionalism. The article draws heavily on Zimbabwe’s recent constitutional history to illustrate shortcomings in regards to constitutionalism. It will argue that through the colonial period and most of the post-independence era there has been an erroneous focus by successive governments on mere constitutionality (or simple legality) at the expense of constitutionalism.

Overall, this article advocates a serious re-evaluation of the collective attitude and approach towards the constitution; that in making it, concern is not only in defining what is constitutional but also in ensuring that those constitutional clauses conform to and advance the principles

and values that underpin constitutionalism. The hope is that as Zimbabwe undertakes the drafting of a new constitution, those tasked with drawing up the draft can learn some lessons about the critical elements that are necessary for this purpose.

Constitutionalism’s core ideas

It is a basic tenet of constitutionalism that a constitution is not simply a collection of rules and institutional arrangements regarding the use of state power but it is, in addition, about placing limits on that power (Belz 1998). It is the idea that government should be legally limited1 and that the authority of government is dependent on the enforcement of such limitations against itself (Wormuth 1949).

The principle says that a constitution not only describes but also restrains government. The core idea of constitutionalism is probably best encapsulated in the words of one of the Founding Fathers of the United States Constitution, James Madison, who wrote in The Federalist No. 51:

“In framing government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on government but experience has taught mankind the necessity of auxiliary precautions.”

This passage confirms three critical points:

• First, that a government is necessary and that its power must be facilitated to enable it to have control and to fulfil the interests of the governed;

• Second, that government cannot be completely trusted with power and that this power must therefore be restrained (Allen & Thomson 2005); and,

• Third, whilst acknowledging the role that people may play in controlling government it says that this is inadequate and unreliable and therefore that it is necessary to create ‘auxiliary precautions’ to control governmental power. As Wormuth (1949) states, constitutionalism is synonymous with these ‘auxiliary precautions’.

According to Kay, “The special virtue of constitutionalism … lies not merely in reducing the power of the state, but in effecting that reduction by the advance imposition of rules.”3 Furthermore, as asserted by Wormuth, the legitimacy of governmental authority turns on its enforcement of the rules limiting its authority. In this regard, it may be said that constitutionalism is synonymous with the rule of law, which is the more commonly used terminology.

Next week the principle of constitutionality will be explained, and we will also look at the effects of previous amendments to the constitution. – First published by OSISA (www.osisa.org)

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