Constitutional values and breaches

The Constitution was enacted in 2013 and is in effect the 20th amendment to the country’s very first Constitution cobbled together by different interest political groups at the Lancaster House Conference in 1979. It was the result of the talks to end the bloody conflict between the native black people and descendants of mostly British settlers who had come into the country in 1890. The 2013 Constitution repealed and replaced the 1980 Constitution, after a long drawn out national consultative process between the years 2009 and 2013 during the government of national unity, which comprised Zanu PF, MDC-T and MDC.

By MIRIAM TOSE MAJOME

Values and principles

Zimbabwe’s Constitution espouses noble principles values, and ideals that cannot be faulted. They are well articulated and capture an overall spirit of good will and inclusiveness portraying a nation that wants to move forward. The State’s voluntary submission to be held accountable by the citizenry and be bound by the rule of law is noble and highly commendable. On paper it is all well and good. The Constitution recognises and acknowledges basic universally recognised human rights and freedoms of citizens and pledges to protect these rights. In as far as its founding principles and values are stated, the Constitution is impeccable, even if the political will by the State and its capacity to comply with it are often found wanting. Among the many progressive elements is the acknowledgement of constitutional supremacy and the State’s promises to abide by it in all its affairs. The inherent dignity, worth and equality of every human being is acknowledged. Multiparty democracy is endorsed as is the undertaking to hold regular free and fair elections every five years or by elections when vacancies arise. The State pledges to be transparent, just, accountable and responsive in all its dealings. In principle, everybody including citizens and visitors to the country, are assured of protection of their basic human rights and to access basic structures such as the police and courts and others in pursuit of human dignity and the rule of law.

The preamble

The general and specific principles, values and objectives of the Constitution are found in it preamble. Each and every provision must be held up against the principles espoused in the preamble because all the provisions must seek to fulfill those values. The Constitution claims to recognise the need to entrench democracy, good, transparent and accountable governance and the rule of law. Furthermore, it claims to reaffirm the State’s commitment to upholding and defending fundamental human rights and freedoms. It also promises to uphold the values of transparency, equality, freedom fairness, honesty and the dignity of hard work. The preamble is a bold statement and quite daring in its brazenness.

Constitutional breaches

The State is structured on a three-tier model of governance through which it administers and implements laws and provides basic services. At the helm is the national government under which falls provincial and metropolitan councils and local authorities comprised of rural and urban councils. It must be noted that the State never established one of the sub-branches of government, that is provincial and metropolitan councils as prescribed by the Constitution. This was the first major breach of the Constitution and no reason was ever sufficiently proffered for the failure or refusal to set up this prescribed arm of government. One of the many other constitutional infringements by the State regards its commitment to sharing national resources equitably. The evidence shows that the most important resource, land, has been distributed along partisan lines. It is no secret that members of the ruling party and close associates have been the biggest beneficiaries of land and re-possessed farms, which used to belong to white farmers at the expense of other citizens. Politics and ethnicity have been allowed to affect and permeate public welfare decisions that involve allocation of resources. Other examples are the failure by the State to fully cater for the rights of disabled persons, the elderly and minority groups. Even the prescribed decentralisation and devolution of government functions remains unimplemented five years after the Constitution prescribed it.

Constitutionalism

Perhaps if there was a strong spirit of constitutionalism in the country as exists in other countries, the citizenry would have demanded the establishment of these metropolitan and provincial councils merely because that is what the law prescribes. Followers of American politics, particularly the gun debate, will know how aggressively some Americans such as members and sympathisers of the powerful National Rifle Association defend gun ownership despite the disturbing gun violence statistics only because their Constitution guarantees the right to bear arms. The government of Zimbabwe has a whole missing arm, but life carries on as normal and Zimbabweans aren’t particularly bothered by this major breach. This is a serious indictment to the implementation of good governance by both the citizens and the State. It questions the State’s commitment to adhering to the rule of law if it cannot even constitute its own self legally. It also highlights the passivity of the citizenry and our lack of interest in demanding accountability from the State. The fusion of a passive citizenry and an insincere State may help to explain why the State is able to easily get away with so many other Constitutional breaches, as have been and will be discussed in subsequent articles.

Temporary provisions


Zimbabwe is a secular constitutional republic, meaning it is not beholden to any particular religious philosophy. There is an arguably Christian majority in the country, but there is no official declaration to the country being a Christian nation in the way Zambia is. The consultative process between 2009 and 2013 engaged various stakeholders such as political parties, religious organisations, business organisations and individuals. The Constitution is largely a compromise document, which sought to appease the interests and demands of Zanu PF and the MDCs. Evidence of this is that it is not a final document as would be ordinarily expected of the Constitution of a country. The Constitution contains temporary provisions called transitional provisions, which oddly apply only from 2013 to 2023. Some examples of these temporary provisions relate to the resignation, death and appointment of presidents and that of proportional representation by 60 women parliamentarians. These rather odd compromise political arrangements detract from what is otherwise a progressive national contract.

 Miriam Tose Majome is a lawyer and teacher. She can be contacted on enquiries@legalpractitioners.org

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