HomeEditorialsLet’s nurture a culture of constitutionalism

Let’s nurture a culture of constitutionalism

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NewsDay shares law expert Greg Linnington’s observation — as reported in yesterday’s edition — that the ongoing constitution-making process should not negate the key issue of constitutionalism.
Linnington says that Zimbabwe needs to develop a culture of constitutionalism so that people respect the constitution. He said the whole process of developing a culture of constitutionalism is where people practise what is in their constitution.
This is a poignant conservation especially considering the debate and squabbling that has characterised the current process. Political protagonists want their respective views to be factored into the constitution. The arguments being brought to the fore are not necessarily reflective of national sentiments but have all to do with political entrenchment. Constitutions in Africa have been treated with profound ambivalence, handed down by retreating colonial powers as a holy grail legitimising the supremacy of the state over society. Successor states headed by post-colonial leaders have shown deep ambivalence about constitutionalism and Zimbabwe is a case in point. For too long, our government has identified the constitution with legislation. The constitution has become a tool to validate and legitimise government actions. After the disputed June 2008 election, Mugabe assumed office on the basis that the constitution empowered him to do so. However, he lacked legitimacy in the eyes of the public and the world. He sought legitimacy from the constitution, hence the amendment that gave effect to the government of national unity.
This aptly demonstrated the extent a constitution could be abused as a tool of arbitrary rule which negates the spirit of constitutionalism that is essential in a democracy. The loud input from politicians into the current constitution-making process must be viewed critically to ensure that there are adequate checks and balances to protect the rights of the minorities and individuals. While it is widely recognised that majority has the authority to form a government and rule, the rights of the minorities are must also guarded and taken into account. This is the spirit of inclusivity that politicians have been trying to defeat. They will use their various constituencies to ensure that this very critical norm of constitutionalism is defeated during a referendum.
It is clear from utterances by senior government officials that the nation is being schooled to accept exclusivity as a practice. This is not just about minorities like gays, smaller ethnic groupings and religious sects but political opponents as well.
Documents constructed with exclusivity as the underlying principle will always be contested. They are at the mercy of mutilation every time there is a change of government or when economic circumstances change. Linnington says a constitution should be designed to stay for a long time and should be difficult to change. This aspect is not being brought to the fore by those leading the outreach programmes. In other words the current process has the potential to produce a constitution that would be easy to change because politicians are keen to achieve mere legal constitutionality. Remarking about constitutionalism in his country, respected President of Tanzania, the late Dr Julius Nyerere remarked: “We refuse to put ourselves in a straitjacket of constitutional devices – even of our own making. The constitution of Tanzania must serve the people of Tanzania. We do not intend that the people of Tanzania should serve the constitution.”
May we come up with a constitution that serves the people of Zimbabwe and not its ruling elites.

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