The State of Constitutional Democracy in Zimbabwe: Reflections on the 2013 Constitution
By Adv. Amanda Sihle Ndlovu
We are living in unprecedented times.
In the past ten years, the nation of Zimbabwe has witnessed natural disasters, a change in Presidents for the first time in 30 years, a global pandemic that shut down the entire world and claimed thousands of lives, as well as several other changes that have taken place as our population expands and the world changes. It is opined that the true test of a nation’s Constitution therefore, is whether it can stand the test of time and continue to dictate the values of a society in an ever changing local and global environment. Does our Constitutional democracy continue to uphold the rights, principles and liberties enshrined by our Constitution, even in a state of emergency, and in times of national crisis or difficulty?
A Constitutional democracy is a people based system of governance. The role of the Constitution is to capture the true values and “boni mores’ of a society and thereafter design its environment, leadership structures and systems, strictly under those values. Anything inconsistent with the Constitution is illegal and should not be allowed to take place.
In 2013, Zimbabwe adopted a new and progressive Constitution which promised to usher in a new Constitutional dispensation. The year 2023 marks a 10 year milestone after its adoption, thus presenting an opportunity to reflect on the state of Constitutionalism in our Country after the 2013 Constitution.
While the previous Lancaster House Constitution protected everyone, there was bias towards the protection of first-generation rights at the expense of second-generation rights. Socio-economic rights were not justiciable, which may be ascribed to the fact that at the time of the enactment of the Lancaster House Constitution, globally, the constitutional protection of socio-economic rights was rare.
The role of the Judiciary in upholding Constitutional Principles
In the determination of matters, our judiciary plays a pivotal role in infusing Constitutional principles. The Constitutional Court, being the apex Court of our land, is tasked with the role of interpreting our laws and making sure that they are in line with the Constitution and being applied in the spirit of the Constitution at all times.
In the past ten years, we have seen landmark judgments which play a crucial role in highlighting the principles that our Constitution seeks to entrench.
One such notable Constitutional Court judgment, for example, saw the end of child marriages in Zimbabwe. The Constitutional Court in Mudzuru v Ministry of Justice, Legal & Parliamentary Affairs, gave effect to section 81(1) of the Constitution, which accords special protection to children. The approach that our Courts are obliged to offer adequate protection to children is also evident in the widely celebrated judgment. Two young women, acting in the public interest, applied for a declaratory order to the Constitutional Court which established that the minimum age of marriage be set to 18 and that no person under this age should be allowed to enter a marriage.
Such landmark judgments are a necessary ingredient in building public confidence in the Constitution and the public system that it creates. The rights and privileges of our Constitution are only meaningful when they can be defended in open Court and justice is seen to be done.
Concerns over separation of power
“Power tends to corrupt, and absolute power corrupts absolutely.”
One major identifying feature and test of a Constitutional Democracy is the Separation of Powers. This is a system that creates checks and balances within the three pillars of government, to ensure that there is a balance in power and that no man is ever above the law. A Constitutional Democracy recognises the nature of men , and to prevent autocratic rule, it upholds the “rule of law” rather than the whims of men.
In Zimbabwe, we have seen a concerning increase in measures that increase executive power and allow certain measures to be implemented without the necessary checks. Presidential powers, for example, exist to allow the effective running of the day to day affairs of a nation, but must be used sparingly with ample room for the intervention of the Courts and the Legislature to regulate it.
The President has wide powers to make regulations under the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. Under this Act the President can make regulations that override other laws (including Acts of Parliament.) The overuse of the Presidential Powers (Temporary Measures) Act, is therefore an encroachment of legislative powers and is unconstitutional. Section 134(a) of the Constitution now emphatically lays down that Parliament must not delegate its primary law-making power.
Examples of notable statutory instruments made under this law in the past ten years are:
-Issuance of RTG Dollar and the end of the 1:1 exchange rate to the US Dollar (SI 33/2019)
-Full Return of the Zimbabwe Dollar as Legal Tender (SI 142/2019)
-Offences and Penalties for Trading of Goods and Services in Foreign Currency (SI 213/2019)
-The Financial Laws Amendment Regulations, to stabilise the banking system, (SI 127/ 2021)
Given the drastic nature and effect of these laws, this is a power best exercised by the branch of government that is designated to perform this function. This is what the Constitution seeks to ensure.
Challenges in Upholding the Constitution
While so much can happen in a decade, ten years is not a very long time and Zimbabwe is still on its journey to achieve the utopian ideals that our constitution promotes. This cannot happen overnight and we are still a very long way away from achieving the society that our constitution aspires to. Many hard lessons will be learnt along the way. The struggles of post-independence Zimbabwe , including moments of civil unrest and the world record breaking hyper-inflationary 2008 period, have been reported on international platforms and the Country has been earmarked by the international community, sometimes for not the best reasons.
What can citizens do to defend the Constitution?
Most notably is the recently published and widely circulated “Gold Mafia” Documentary, which is suggestive of a State affiliated money laundering syndicate that is operating in Zimbabwe in an abuse of the Country’s national resource. This has really placed a spotlight on the work that still needs to be done by Zimbabwe to uphold the 2013 Constitution , which promotes fairness, legality and transparency as some of our fundamental values. It is the role of our generation therefore, to know and understand our Constitution and all that it promises, so that we can effectively speak up and defend it.
Adv. Amanda Sihle Ndhlovu is an Advocate of the Superior Courts, housed at The Chambers Advocates of Zimbabwe in Harare. Amanda obtained her law degree from Rhodes University in South Africa. She completed her conversion exams in Zimbabwe and qualified as a legal practitioner in 2019. She is a young and vibrant lawyer with an infectious passion for the law. Born in Bulawayo, Amanda has practiced at two of Zimbabwe’s most reputable commercial law firms. She is currently the bar junior at The Chambers, where she recently qualified as an Advocate, with the intention to build a niche in Family Law, Constitutional Law and the art of Dispute Resolution both in and out of Court.