By Tariro Senderayi and Chiedza Mlingwa
Ten years ago, on 22 May 2023, the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 was signed into law after an overwhelming referendum vote. The constitution came after a consultative process that was led by the Constitution Select Committee (COPAC), a parliamentary organ tasked to come up with a homegrown constitution that espouses the rights of the majority population.
The Constitution is a product of a long-drawn consultative process amongst various stakeholders to have a homegrown Constitution that espouses the rights of the majority population. It is fitting, therefore, to celebrate the tenth anniversary of the existence of our Constitution which stands, both in letter and in spirit, as the embodiment of the legitimate aspirations of all Zimbabweans.
As a nation, Zimbabwe can take pride in having one of the most progressive constitutions in the region. Unlike many other countries, for instance, the Zimbabwe Constitution recognises sign language as an official language. Its most remarkable feature however is that it is not a mere formal document that seeks to constrain or regulate public power. Rather, it carries objectives and normative value systems within which our constitutional democracy has to operate.
These are captured under Section 3 of the Constitution which sets out the founding values and principles that buttress constitutional democracy in our republic. They include supremacy of the Constitution, the rule of law, separation of powers, good governance, fundamental human rights and freedoms as well as recognition of and respect for the liberation struggle.
In addition, human rights are given clear prominence in the Constitution. The Bill of Rights contained in Chapter 4 is comprehensive because it guarantees the protection, promotion, and fulfillment of various fundamental human rights and freedoms.
It is however one thing to have a beautifully written Constitution; it is quite another to have a culture of constitutionalism. A country may have a constitution, but may not enjoy constitutionalism. While a constitution is frequently a written document that outlines fundamental laws and principles, constitutionalism is a political condition in which the constitution functions as an effective and significant limit on government.
Constitutionalism recognizes the need of limiting the concentration of power in order to protect the rights of groups and individuals. In essence, constitutionalism denotes a bundle of expectations about the conduct of government.
In Zimbabwe, the enjoyment of constitutionalism has unfortunately been negatively impacted by the country’s characterization as a dominant party state. A dominant party state is one where one party enjoys electoral dominance despite an entrenched framework for multiparty democracy through universal suffrage and regular elections. Decades of electoral hegemony and the overwhelming dominance of the political space by the ruling party, ZANU PF, have created a landscape that does not foster a culture of adherence to, and respect for, constitutionalism, democracy and the rule of law.
It is hardly surprising that the 10th anniversary of the 2013 Constitution is being celebrated when the country is witnessing the erosion of constitutionalism and the acceleration of authoritarian consolidation in Zimbabwe.
While the Constitution is there to protect everyone, we have witnessed with horror how the laws are being used to persecute human rights defenders in the name of prosecution. Transform Zimbabwe leader Jacob Ngarivhume, Citizens Coalition for Change spokesperson Fadzayi Mahere and Zengeza West Member of Parliament Honourable Job Sikhala are examples of victims of politically motivated prosecution. On 28 April 2022, Ngarivhume was sentenced to three years in prison without an option of a fine for calling people to exercise their constitutional right to protest peacefully against government corruption.
His conviction and sentencing totally disregard all these guarantees protected by the Constitution we celebrate today. Protests are provided for in sections 58 and 61. Mahere was fined US$500 for publishing falsehoods prejudicial to the State, a non-existent law. Sikhala has been in jail for 11 months and denied bail eight times, yet bail is anyone’s constitutional right.
It is highly concerning that the violation of rights clearly protected by the Constitution seems to receive judicial sanction when the courts themselves continuously sanction the persecution of HRDs through repeated refusals to grant bail in respect of politically targeted individuals thereby ensuring their lengthy pretrial incarceration. It is worth placing on record that the rights secured to citizens under the Constitution are worth nothing except guaranteed to them by an independent and virtuous judiciary.
The butchering of the Constitution through Amendments No.1 and 2 strengthens the position of an imperial president whilst taking away power from the citizens who should be at the centre of any proposal to amend the supreme law of the land. Yet the Preamble to our Constitution fervently begins with the phrase: “We, the people of Zimbabwe”. It is a seemingly simple yet people-centred and anchored declaration.
Although there have been efforts on the part of the government in aligning some pieces of legislation to the Constitution, the pace at which the substantial laws have been aligned has also been very painstakingly slow.
Of concern is the conflation of state and government yet the Constitution exists to ensure that government does not own the state but rather manages the state on behalf of citizens under the authority of the Constitution.
The Constitution is the supreme law of the land – no law or government functionary is above it. Rather, when giving effect to the Constitution, it is the voice and the needs of the people that are paramount. The Constitution is a product of a people-centric, inclusive, and comprehensive process of consultation amongst the citizens of Zimbabwe. Worth noting is how those in public office have a duty to make judicious or prudent use of the resources at their disposal for the collective good of those on whose behalf such resources are controlled.
The Constitution correctly envisions that the state is best placed to deliver on the promise of social upliftment. This is why a direct, concomitant obligation is placed on the state to use its resources to meaningfully address poverty and inequality. It is in this vein that the Constitution in setting out the basic values and principles governing public administration under section 194(1) clearly states that “efficient and economical use of resources must be promoted”.
Seemingly in sharp contrast to this however, the Government on 18 May 2023, took delivery of an initial 18 brand new helicopters from Russia (out of an expected total of 32), which, according to the Government will be for ambulance services, disaster management, policing and wildlife protection duties. The purchase of the helicopters at a staggering cost of over USD$320 million amid the country’s crumbling local currency, at a time when hospitals do not have basic medical equipment and medication when civil servants are threatened and even arrested for asking for improved working conditions and services speaks of severely misplaced priorities.
Clearly, in light of the above, the growth, enhancement, efficacy, and sustainability of Zimbabwe’s constitutional democracy can only be guaranteed by a shift in political culture; one in which public functionaries exercise public power fully cognisant of the fact that overriding the constitution’s precepts is at the peril of democracy, human rights, and fundamental human rights and freedoms. Government should:
- . prioritise constitutional literacy exercises in the communities so that citizens know their rights and can actively demand the same;
- . Accept that the Constitution embodies the collective aspirations of citizens and establishes a social contract that adheres to a culture of constitutionalism characterised by respect for the supremacy of the Constitution, the rule of law, and fundamental human rights and freedoms;
- . implement the Constitution without reservation;
- . show a genuine desire and demonstrable political will to address the socio-economic deficits and economic stagnation in the country that has negatively impacted the standard and quality of life and welfare of ordinary Zimbabweans, especially the vulnerable groups in society;
- to immediately condemn the criminalization of legitimate human rights activism by members of the Zimbabwe Republic Police, other law enforcement authorities, and the judiciary whilst facilitating the unconditional release of all political prisoners in Zimbabwe as well as withdrawing stringent bail conditions and additional criminal charges on released political prisoners that serve to continuously impinge upon their constitutional guarantees to freedom of movement and of liberty and security of the person.
“Constitutionalism, accountability, and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity of its stiffened neck”
- Mogoeng Mogoeng.