The Constitution of Zimbabwe 10 years on: The good, the bad and the ugly
By Madock Chivasa
It is apparent that the Constitution of Zimbabwe is already exhibiting the good, the bad and the ugly. This paper will analyse various provisions in the Constitution of Zimbabwe with the intention of laying bare the good, bad and ugly aspects in the supreme law.
In Chapter 1 of the Constitution of Zimbabwe it is provided for that, “Zimbabwe is a unitary, democratic and sovereign republic.”
It is with no doubt that Zimbabwe remains a unitary and sovereign republic although it is very difficult to qualify the democratic aspect in this provision. The aspect of democracy is compromised by the arbitrary arrests of human rights activists and opposition leaders. It is also clear that there is limited freedom of expression as there is no guarantee of freedom after expression. The democracy in Zimbabwe is also being compromised by the selective application of law as well as impunity given to perpetrators of violence and human rights violators. This is a very good example of a provision clearly exhibiting the good, bad and ugly all expressed in one short sentence in the Constitution.
It is also commendable that as a nation Zimbabwe still, “has a national flag, a national anthem, a Coat of arms….”
The flag and the national anthem and Coat of arms are still widely respected as the same both in substance and form. There is also considerable respect to the provision of the Constitution giving life to the use of multi languages. The officially recognised languages cover a broad sense of various communities which is a good element still respected 10 years later. However, the government is not taking a lead to ensure that state official documents can also be obtained and written in the various languages that are covered under section 6 of the Constitution.
The promotion of public awareness of the Constitution has not been adequately done by the State as compelled by the Constitution. It is clearly provided for that,
“The State must promote public awareness of this Constitution
in particular by-
-Translating it into all officially recognised languages and disseminating it as widely as possible.
- requiring this Constitution to be taught in schools as part of the curricula for the training of members of the security services, the civil service, members and employees of public institutions.to
-encouraging all persons and organisations, including civic organizations to disseminate awareness and knowledge of this Constitution throughout society”
It can never be argued that it is only the civic society organisations who have been frantically making efforts to reproduce and distribute copies of the Constitution of Zimbabwe. The State has done insignificant effort in ensuring the availability of the Constitution in all languages as prescribed by the Constitution. The curriculum has not changed to include constitutional lessons as provided for by the Constitution leaving the undesirable state of affairs where the only constitutional lessons one can get is only at university level.
The Constitutional provision on empowerment and employment creation has not helped in any way to safeguard that there are enough jobs for the youths who are the most affected sector as the majority of them remain unemployed. It is clearly stipulated that,
“at all times the state and all institutions and agencies of government at
every level must ensure that appropriate and adequate measures are
undertaken to create employment for all Zimbabweans, especially women
and youths.”
Women and youths remain the most affected groups in terms of unemployment notwithstanding the fact that creation of employment is enshrined in the Constitution. This replicates a bad aspect of the Constitution again in terms of fulfilment by the state to ensure that the provisions of the Constitution are upheld and respected.
The Constitution has already been amended to remove some of the clauses that seemingly promoted democracy and good governance. The direct election of the vice presidents through the running mate provision which was provided for in Section 92(3) was removed through the amendment made to the Constitution. It means that the vice presidents are now being appointed by the winning President as was the case in the old Constitution. It is worrisome that this good provision was removed from the Constitution before even being put to test, making one wonder why its inclusion in the first place. The addition of a youth quota in the lower house of assembly and the extension of women proportional representation, after sneaking in through amendments, have not saved the intended purpose of promoting youth and women participation in governance issues. The composition of the lower house does not change its outlook by a ceremonial addition of few youths and women representatives.
The presidential transitional clause was put to test when the former President Robert Mugabe left office. The sixth schedule of the Constitution paragraph 14 (b) was utilised to replace him. This provision says that in the event of a vacancy in the office of the President,
“the vacancy in the office of President must be filled by a nominee of
of the political party which the President represented when he or she
stood”.
This provision demonstrated to be chaotic as the nation was left curious and anxious not knowing who was going to be the next President. This situation is undesirable as it can create violence and instability during the time the people will be waiting for the political party responsible to forward their replacement to the speaker of parliament. From what has transpired it becomes imperative clear that whenever there is a vacancy in the office of the President the nation should just go to an election to elect a President to succeed. The same case for members of parliament and Councillors where if there is a vacancy a by-election is conducted is exactly what should apply to the vacancy in the office of Presidency.
There are a lot of difficulties caused in relation to the appointment of the Zimbabwe Electoral Commission by a sitting President. The Constitution dictates that,
“The Zimbabwe Electoral Commission has the following functions-
(c) to register voters
(d) to compile voters rolls and registers;
(f) to delimit Constituencies, wards and other electoral boundaries
(h) to conduct and supervise voter education.
From the foregoing, it is alarming that 10 years after the establishment of the Constitution, ZEC still struggles to register voters at a wide scale. The voters' roll is always in shambles and not readily available to all stakeholders. The recent delimitation done by ZEC was a national disaster while the conduct and supervision of voter education has never been done by ZEC at least in a manner that is visible and transparent. The issue that the sitting President appoints ZEC is still problematic as most people feel that this provision in the Constitution is used by a sitting President to appoint people who are sympathetic to his/her cause.
On the other hand, whilst on the issue of Commissions, it is alarming and shocking that the Zimbabwe Anti-Corruption Commission that is established in terms of section 255 of the Constitution, has been the most unpopular commission with most Zimbabweans. There are allegations of catch and release associated with this Commission and there is a public perception that the Commission is there to harass opponents of the government. The Commission has failed to investigate and expose cases of corruption in the public and private sector as compelled by the Constitution. The mechanism for receiving complaints from the public is secretive and not known by many. Very few people have been convicted for corruption yet the country is bleeding from corruption, hastily concluding that the commission that is supposed to fight corruption is incapable of achieving this goal.
In terms of basic rights there is a need to interrogate certain provisions that speak to specific rights that have not been achieved to date besides just being mentioned and included in the Constitution. The Constitution gives a broad spectrum of rights enshrined in Chapter 4 Part 1 and Part 2. Just by mere looking at these rights they seemingly have been placed in the Constitution for window dressing as most provisions are violated left, right and center. This paper will randomly pick these rights and discuss how they have been grossly violated in most cases by the State.
Section 50 of the Constitution gives provisions on the rights of arrested and detained persons. It is provided that arrested people should be released on bail pending their trial yet we currently have opposition leaders like Hon Job Sikhala of CCC and President of opposition Transform Zimbabwe languishing in prison being denied bail or charged and convicted for offences that are not expected in a functional democracy. The right to personal security also enshrined in section 52 of the Constitution which protects every citizen from all forms of violence is not respected as the country continuously experiences all forms of violence especially during election time.
It is also provided for in the Constitution that there is freedom of assembly and association as given and stated in section 58. However, the nation still experiences problems whereby individuals are persecuted for aligning with specific individuals, groups or political parties. In the rural areas it is alleged that agricultural inputs distributed by the government are not given to people who don’t support the ruling ZANU PF party. In all these instances opposition members, supporters and civic society activists are therefore being indirectly penalised for supporting and associating with political parties of their choice. This is a gross violation of the Constitution which is very clear that “every person has the right to freedom of assembly and association, and the right not to assemble or associate with others”.
The right to freedom, to demonstrate and petition has been reduced to circus by the compelling police clearance needed before any meeting or gathering. Since the inception of the new constitution there has been less demonstrations and petitions as those who dare to try and engage in such acts end up incarcerated with no justification.
In conclusion it is clear that the constitution is a hybrid of good, bad and ugly provisions. As demonstrated by this paper most issues arise from defective provisions, non-compliance by the state to implement certain provisions and also lack of safeguards to ensure that certain rights are respected. After 10 years with a new Constitution nothing has significantly changed especially in terms of respecting human rights. The Constitution has failed to give enough guarantee for the full enjoyment of both basic and fundamental rights. Overly the good things shown and reflected in the Constitution are dominated by the bad provisions in the same document.
Madock Chivasa is the Secretary General of the National Constitutional Assembly. He writes in his own capacity.