These collective aspirations went through a further process of parliamentary scrutiny before such aspirations were set out in a legal instrument that sets out the basic law of the land (constitution). The basic law established structures, procedures and rules that govern conduct among citizens, their government and state and forms the basis of other laws, against which they are all measured.
The constitution means different things to different people and there is no consensus on how quickly all its provisions should be realized, as some, especially those relating to economic and social rights could well be dependant on resources and government’s programme of action.
Whereas lawyers may perceive it as a legal document whose implementation should be done now, some politicians may see it as political document which will be more relevant during their political campaigns, while war veterans may perceive it as a declaration of peace in a country that, according to some of them, has been facing western-sponsored aggression[ii]. However, there is no doubt that most Zimbabweans will see it as a social document that sets out principles and values which ought to govern the way our society functions and is governed.
This social understanding, which is a common denominator for all stakeholders, is premised on the basic understanding that the constitution’s overriding objective is to build a cohesive and functional society. This, according to the scholars of Emile Durkheim, is premised on the perspective of functionalism.
This article will look at the constitution as a social document and will argue that, perceiving it as such and exploring social channels for implementing it, present very effective and creative ways through which citizens can understand and implement the constitution without much state mediation in the process. However, the state on the other hand, as an enabler and guarantor of constitutional rights, ought to create a conducive environment for this social discourse to shape up, and often, the best way to create such an environment is simply by refraining from interfering with such social processes and ensuring that those who interfere are restrained from doing so.
Firstly, for the above to happen, there is need to dispel one dangerous myth based on reckless talk that a good constitution is as good as useless unless implemented. The debate of constitution or constitutionalism is an old one and often unnecessarily too academic to be of practical use. This article differs with the position that constitutionalism is more important than the constitution, but goes a little bit further in finding consensus with those who hold this view.
A good constitution alone should be viewed as a symbolic and significant step especially in a state such as Zimbabwe, which could arguably be called a post-conflict state. For instance, when the Universal Declaration of Human Rights was crafted, there was no immediate hope of its implementation, but it was crafted to set out broad aspirations and a declaration of hope by a war torn world.
What was adopted and proclaimed at the UN on the 10 December 1948, the Universal Declaration of Human Rights was not in itself intended to create legal rights – it was aspirational, offering a normative counterpoint to the evil that had so recently gone before. It was the expression of a global desire and drive to establish common standards applicable to all humankind.[iii] Such aspirations would eventually take time to realize.
In the case of Zimbabwe, the new constitution should not be denigrated but seen as a significant step by Zimbabweans in raising the bar of their aspirations. However, both the nation and the state need to embark on the next phase of constitutional renewal, and this may take various forms as well as time. On 22 May the Civil Society Monitoring Mechanism launched its audit of the state's compliance with the new Constitution. This article builds on the interesting discussions that took place during the launch.
Firstly, the next stage of constitutional renewal may be in the form of the state and its citizens agreeing on a broad framework within which citizens’ engagement of the constitution and the institutions it builds can sit and find strength or this could be a spontaneous natural process. In our view, both routes are necessary and are not mutually exclusive. There is an urgent need to ensure that the constitution does not just remain a document that excites the curiosity of lawyers and judges but a social instrument rooted in our society’s institutions, cultures, idioms, norms, policies and languages.
While these institutions should shape the constitution, the constitution should also shape them in a mutually reciprocal fashion. This process of gradual exchange would progressively socialize people into a new culture of ‘treat thy neighbor as they would like to be treated’. This socialization process, in our view, underpins constitutionalism. In other words, constitutionalism or the social construction of the constitution should run concurrently or even precede legislative re-alignment with the new constitution as well as the development of Constitutional Court jurisprudence.
Before the constitution became a legal instrument, it was a body of evidence that was more social than legal in nature. The social evidence consisted long tracts of statements that embodied people’s aspirations and hope for a better Zimbabwe. Formalization into a legal instrument was done to ensure that the social contract between the state and its citizens was based on a set of defined parameters.
Though it was necessary to condense the aspirations in a single document, this would not have been absolutely necessary in countries such as the UK, where the constitution is partly unwritten and partly embodied in legislation that carries constitutional significance such as the Human Rights Act of 2008. Reducing the Zimbabwean constitution to a written form would also ensure that the contract was not loose and subjective and subject to parochial and skewed interpretation by the self-serving. However, the legal formalization of these aspirations does not serve to override such aspirations but simply summarize and firm them up.
During the constitutional outreach process, ordinary people knew what they wanted because what they wanted emanated from the aspirations they have about who they should be (identity), where they came from (heritage), what they believe in (values), what they could achieve together (potential) and collective aspiration for the future (national destiny).
The above aspirations are social in nature and arise from human intuition (or what Piaget would call natural cognitive understanding) and partly from social learning (Vygosky’s social learning paradigm). While courts can define and enforce parameters of the rights and obligations set out in the constitution, they often do so in narrow fashions, as it is not the duty of courts to unnecessarily delve on broad social issues outside the legal rules.
Should this be true, it is therefore argued that the next phase of constitutional renewal in Zimbabwe should be more social in nature than it is legal. For instance, the constitution sets out an extensive justiciable bill of rights, but it will take the courts sometime, to define the parameters of the legal obligations and rights that are set out in the constitution. This is the case as the court’s abilities to do so is dependent on the rate at which citizens will bring constitutional challenges before it.
While the courts are yet to fully test the full parameters of the constitution, and as parliament is yet to re-align all the laws with the constitution, it is imperative for citizens to view the constitution not only as a legal document for the lawyers and their clients but also as a social document that sets out social rules of conduct by society, state and between the two. The objective of this article is to discuss some of the ways the citizens could play this role.
The writer’s concept of ‘social construction of the constitution is rooted both in political science and social theory. For example, sociologists and social scientists (Kant and Roseau, for example) argue that the fundamental basis of the relationship between citizens and government is the concept of the social contract, according to which human beings begin as individuals in a state of nature, and create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society.
This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively. The contract begins during the early days of human societal existence ranging from such arrangements as family, society and good neighborliness. In its mature form, the social contract is therefore based on two terms of reference, which include mutual defense of rights; and mutual decision by deliberative assembly to make a national constitution, which is preceded by a natural constitution based on spontaneous human relations.
How could Zimbabweans turn these seemingly abstract concepts into meaningful programmes of action in the country’s quest for constitutionalism? A few suggestions will be made here. These may not be new to some, but still worth reinforcing.
1. Connecting with universal values & spirit of the Constitution
This socialization process ought to begin with the values discourse and in unpacking this discourse, we need to ask ourselves the following questions: What universal human values do we as Zimbabweans mutually cherish by virtue of being part of the human family? Secondly, how many of those values are embodied in our constitution, and if we did not have a legal document how many of those values are we prepared to live out on a day-to-day basis? The enquiry should also ask the questions: Who is Zimbabwean and who qualifies to be a Zimbabwean citizen? If we were to ask these questions in all sincerity, we would realize that what binds us together is greater than what divides us. This, it is argued, captures the true spirit of the constitution.
Whenever some politicians, in bad faith, raise the argument of cultural specificity and relativism to attack the constitution as a creation of the West, rather than arguing endlessly, one could easily point them out to the universal values embodied in the constitution especially the immutable value of good neighborliness, which define us all as members of the human family.
2. Rooting the Constitution in traditional institutions
Thirdly, we need to root the constitutional development in the institutions, especially both our traditional and evolving institutions. This would ensure that the principles it espouses are not only part of our living values but also an integral part of our way of life. For instance one way of doing this, for instance when dealing with the older generation, is by looking at folk tales and idioms.
Let’s take for example the respect for political rights as modernly interpreted to mean the right of citizens to change their government. Zimbabwe’s two successive constitutions have provided citizens with the right to change their government peacefully, which continue to be restricted in practice on the basis of the ‘regime change agenda’ rhetoric. The Shona saying that ‘ushe madzoro’ translated ‘chieftainship ought to rotate’, is more credible counter-argument to political hegemony and to explain the doctrine of constitutionalism insofar as it relates to electoral rights. This could also be extended to broader definition of access to justice, which is more social rather than legal in nature in terms of which rule of law and access to justice has always been an integral part of our societies.
3. Appointing traditional and community leaders as stewards of the constitution
Thirdly, in rooting the constitutional renewal in the Zimbabwean traditional institutions, Zimbabwe should also consider using traditional authorities to buy into and propagate constitutionalism. The moderate sections within the war veterans’ community should ideally be used as constitutionalism ambassadors. They have the credentials and can easily be believed when they counter cultural relativism and correctly interpret the constitutional values on the importance to recall the importance of the liberation struggle. The war veterans have a grand narrative carrying a “traditional cultural repertoire”. In countries like Cambodia, for example, Mayan rituals or Cambodian healers and mediums play an important role in “recreating symbolic links among members of a community and in reinterpreting the various violent ruptures suffered by the society. When the constitution is packaged in a way ordinary people understand and is sold by those whom society believe, it will be easy to socialize the document’s values, principles and tenets to the wider society.
4. Utilizing modern institutions
Modern institutions ought to be considered too and these include business and modern education curriculum among other institutions. Consideration should also be taken of comic relief and recreational avenues such as drama and road and pep shows. We should let the values of constitutionalism pervade our way of thinking in business-the way we conduct business, raise up children and we deliver formal education. Learning and living the universal human values should become part of schools living values curriculum but in doing so, we should exercise caution, lest the constitution is used for propaganda or to push for narrowly defined and subjective value systems.
The constitution must be sold in a language that people understand, through examples they can easily identify with, through the empowering of, rather than replacement of community agents to effectively play the role as the stewards of the constitutional values and principles. Less threatening and less legal but social terms could be explored and used. For instance, the human rights discourse in business could be rooted in corporate social responsibility. On the other hand, schools could introduce citizenship rather than human rights education.
Through teaching children how to be better citizens, they will end up knowing and respecting human rights, especially the rights of others. For instance, school psychologists could intervene in cases of bullying by advising children that bullying is a sign of a lack of self-respect and insecurity. This might be more understandable to a child than, for example, drilling the provisions of the constitution in their head. They can easily connect the issue of human rights to how they are being tormented by a classroom bully, and devise an effective way of addressing bullying from an empowered position. Such children who would eventually become tomorrow’s leaders will have the wherewithal to confront human rights abuses in their subsequent adult community roles.
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[i] Arthur Gwagwa, Coordinator, Zimbabwe Human Rights NGO Forum International Liaison Office
[ii] For example, Deputy Justice Minister, Fortune Chasi, during his speech at the NED-SAPES Conference, 3 May, 2014, Harare.
[iii] Jack Straw, Mackenzie-Stewart Lecture, Cambridge, 2007
Post published in: Politics