The Journey Towards Constitutional Reform in Zimbabwe
By Wellington Mbofana*
The Constitution of Zimbabwe Amendment (No. 20) Act 2013 (the new constitution) as the fundamental law of the country, outlines the powers and limitations of the government, the rights and duties of citizens, the framework for the governance of the country, and serves as a safeguard against tyranny and abuse of power. Its enactment was a culmination of a long journey that started with civil society in the mid-1990s. The tortuous journey saw the formation of the National Constitutional Assembly (NCA) – a coalition of CSOs – that spearheaded the constitutional movement. The movement forced the government, which had hitherto ignored calls for a new constitution arguing that the Lancaster house constitution with its 17 amendments was perfect for the country, to establish the ill-fated Constitutional Commission headed by the late Justice Chidyausiku. The Constitutional Commission’s draft constitution was resoundingly rejected in a referendum of February 2000 because of both its contents and the executive driven process. Whilst the government interpreted the ‘No vote’ as endorsement of the Lancaster House constitution, the citizens remained engaged, albeit with limited potency as the bulk of the leadership had ventured into party politics. Because of this dilution, and some would say change of strategy, the introduction of a new constitution was delayed by 13 years.
Key Provisions and Amendments
The new constitution was generally heralded as a step in the right direction. It was seen as progressive as it contained an expanded bill of rights introducing rights to agricultural land, sustainable environment, education, health care; and rights of women, children, the elderly, persons with disabilities, and war veterans. It provided for devolution of power to provincial and local authorities as well as communities. The constitution also saw the introduction of independent commissions like the Electoral Commission, Human Rights Commission, Gender Commission, Media Commission and the National Peace and Reconciliation Commission. The objectives of these commissions are to entrench human rights and democracy, protect the sovereignty and interests of the people, promote constitutionalism, transparency and accountability in public institutions, secure the observance of democratic values and principles by the State, and ensure that injustices are remedied. The constitution also created commissions to fight corruption and crime namely the Anti-Corruption Commission and the National Prosecuting Authority. It also created the Land Commission.
Challenges and Shortcomings
Once the new constitution came into effect, the government was supposed to hastily harmonise all laws that were in conflict with the constitution, and where necessary introduce legislation to give effect to the constitutional provisions. This did not happen as the government decided to adopt the piecemeal approach by cherry-picking provisions that suit certain interests. This means 10 years down the line the constitution provides for some rights that cannot be enjoyed.
The constitution has undergone two deforming surgeries – all coming in the so-called new dispensation. Whilst the government justified the amendments as enhancing clarity and efficient administration, it is clear that these are largely meant to entrench and serve the interests of the ruling elites. The 2013 Constitution provided for the Judicial Services Commission and the citizens to participate in a devolved and transparent process of key personnel in the interpretation of law and administration of justice i.e. the judiciary and the Prosecutor General. The amendments increased the president’s power in the appointments. These are widely perceived as violating the principle of separation of powers, negating the rule of law and undermining the ideals of democracy as, by appointing those that are supposed to provide oversight on the exercise of executive authority through their power of review, the president essentially limits their independence as they virtually serve at his pleasure. This gives currency to the more damaging impact of the amendments - the perception that the judiciary is captured by the executive. Add to this the impotency of parliament, a perfect picture of lack of oversight is complete.
The removal of the running mate provisions in the constitution only serves to consolidate the one centre of power principle and succession politics in ZANU PF, whereas the provision was meant to manage succession by making the line of succession clear, predictable and transparent, as well as to give the citizens power to decide the successors in advance.
The independent commissions have largely underperformed owing to a plethora of problems that include weak institutional framework, inadequate financial support and lack of political will. The National Peace and Reconciliation Commission which was expected to spearhead the much needed task of helping the country to deal with its gory past of violent conflicts and gross human rights violations was set to fail from its inception as it was only given a limited tenure of 10 years and only established some years later. Despite its clearly defined functions of ensuring post-conflict justice, healing and reconciliation; promoting national healing, unity and cohesion and the peaceful resolution of disputes; encouraging people to tell the truth about the past and facilitating the making of amends and the provision of justice; ensuring that persons subjected to persecution, torture and other forms of abuse receive rehabilitative treatment and support; and developing mechanisms for early detection of areas of potential conflicts and disputes, and to take appropriate preventive measures; none of these can be said to have happened as past atrocities are still to be accounted for. In fact there has not been any visible sign towards accountability and redress. In the case of Gukurahundi, the NPRC appears to have abdicated its constitutional mandate and responsibilities to other entities and initiatives.
To ensure democratic participation in government by all citizens and communities, and equitable allocation of national resources and the participation of local communities in the determination of development priorities within their areas, the constitution provides for the devolution of power and responsibilities to lower tiers of government. The state is obligated to ensure that local communities benefit from the resources in their areas. To the contrary, citizens have been evicted to pave way for foreigners. Massive looting of resources like gold, diamonds, lithium, chrome, etc., by foreign entities colluding with politically connected local elites is rife. Before his ouster Mugabe had revealed that Zimbabwe lost over US$15 billion of diamond proceeds; and recently the Al Jazeera Investigative Unit alleged that gold worth billions of United States dollars was looted from the country. The haemorrhaging of resources is happening in all communities because there is simply no political will to devolve power.
The constitution obliges the State to empower all marginalised persons, groups and communities, and to create employment for all Zimbabweans, especially women and youths. Marginalisation and unemployment worsened in the last ten years. Whilst the constitution seeks gender balance and the equal participation of women, the material conditions obtained in the country vitiate meaningful participation beyond decorative and tokenistic participation. The same is true for youth, children, people with disabilities and other marginalised groups. There is no fair regional representation as other regions tend to be underrepresented and there are also perceptions that development is not fairly distributed. The goal for free and compulsory basic education for children is far from being realised as the economic conditions are forcing many out of school.
Political rights of HRDs and opposition politicians are trampled upon with impunity. Cases of lawfare abound. Citizen participation in law making is curtailed by intimidation and political violence. The constitution provides for citizens to freely elect their leaders. Ordinarily these ought to serve at the pleasure of the electorate. However, since 2013 the country has witnessed unprecedented recalls of elected officials from parliament and councils by political parties and unelected leaders without the input of the electorate.
The constitution provides for the orderly transfer of power following elections and sets conditions for peaceful removal of a president or government through parliamentary and executive processes. There is no provision for the unprecedented ‘military assisted transition’ that happened in 2017. The fact that the courts certified that unconstitutional act vindicates claims of a compromised and or captured judiciary, and sets a bad precedent on how power can be captured outside the constitution.
Towards Citizen Engagement and Constitutional Awareness
Despite notable efforts by a few organisations to popularise the new constitution in the early years, a notable negative development has been the demobilisation of the citizenry and the death of the constitutional movement. Whilst in the late 1990s and early 2000s the citizenry easily linked their everyday struggles to the constitution, 10 years after the enactment of the new supreme law, the constitution has largely become elitist. Whilst in 2013 the new constitution created the notion that all animals are equal, in 2023 the pervading perception is that some animals are more equal than others. Given the foregoing, the most important lesson of the first ten years of the new constitution is that the constitution in itself does not change anything, only people can. The constitution is as good as the people it serves and the citizens need to remain vigilant and mobilised to ensure that they benefit from what is given by the constitution and that the spirit of the constitution lives.
*Wellington Mbofana is the former Director of CIVNET. He writes in his personal capacity.