How the regime is unmaking the new Constitution

By The NewsDay | Apr. 26, 2021 | 15 Min read

APRIL 20, 2021 has been described by some as a “dark day” for constitutionalism in Zimbabwe. It was the day when the National Assembly, the lower chamber of Parliament, passed Constitutional Amendment Bill Number 2 with a majority of 191 MPs. Only 22 MPs opposed it. Constitutional Amendment Number 2 strengthens the Executive presidency, eroding the gains of the Constitution that was adopted through a popular referendum in 2013.

BY ALEX T MAGAISA

However, while the amendment is certainly a retrogressive step, the real dark day for Zimbabwe’s Constitution happened long before April 20, 2021. The dark day happened three years ago on July 30,2018, when Zimbabweans elected a new Parliament and Zanu PF ran-off with a two-thirds majority. Also referred to as a super-majority, it gave Zanu PF unfettered legal powers to amend the Constitution. To amend general provisions of the Constitution, there must be minimum support of a two-thirds majority in each chamber of Parliament.

Before the 2018 elections, I argued that whoever lost the elections, it was important to prevent the winner from getting a super-majority. It was to avoid precisely what is happening now to the Constitution. The supreme law of the country is literally at the mercy of Zanu PF because it has a super-majority. The opposition in Parliament cannot stop it because it does not have the numbers. As I will explain later in this article, only the people who voted overwhelmingly to adopt it in 2013 have a fighting chance to stop further mutilation of the Constitution.

To long-term observers of the Zimbabwean political scene, therefore, what has happened to the Constitution over the last couple of weeks was not unexpected. It was not a question of whether it would happen but when and the extent to which Zanu PF would go in its quest to change the Constitution. The only thing that could restrain it is the exercise of forbearance — when you have the power to do something, but you choose not to exercise that power. But Zanu PF is not known for forbearance. In its universe, the reason for power is to use it, therefore, whenever power is available, it must be used. It does not believe in the notion that there is more power to be gained from not exercising power.

Why is Zanu PF amending the Constitution?

There are several reasons why Zanu PF was never going to miss the opportunity to use its super-majority to amend the Constitution.

First, there are aspects of the Constitution that Zanu PF was never comfortable with from the start. It made concessions reluctantly during the constitution-making process but now that it has a super-majority, it is making changes to redefine the Constitution according to its dictates. It should be remembered that Zanu PF had amended the old Constitution to centralise and increase presidential powers. The new Constitution had trimmed those powers against Zanu PF’s will. With a super-majority, Zanu PF is taking advantage to restore lost powers of the presidency such as the power to determine the composition of the Judiciary and minimise transparency and scrutiny. This is precisely what the amendments are doing: re-centralising power in the presidency. Zanu PF is amending the Constitution to erode the gains made in 2013.

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Second, since the November 2017 coup, there has been a relentless march towards authoritarian consolidation and the constitutional changes are part of this larger scheme. With the benefit of hindsight, it is easy to see that the first amendment which was passed in 2017 was crafted in anticipation of the coup that followed and a (Emmerson) Mnangagwa presidency. The Mnangagwa faction wanted a Judiciary that would condone and justify the coup. Although Chief Justice Luke Malaba was not the faction’s preferred choice, he eventually fell in line following the coup and became a favourite of the regime. High Court Justices George Chiweshe and Charles Hungwe both issued court orders that gave a veneer of legality to the coup.

The second amendment follows the path of the first amendment by conferring more power in the presidency. These amendments are part of the authoritarian consolidation project under the Mnangagwa presidency and based on them, it is fair to predict more similar amendments in the future, even before the 2023 elections. The regime has already shown that it is not bothered about negative public opinion. After all, it has so far proved to be harmless noise that is not backed by any serious political action that might pose an existential threat to the regime. The two amendments have tested the waters. The regime now believes the waters are not deep and the next set of amendments could be even more devastating to the Constitution.

Third, Mnangagwa is using the constitutional changes to manage factional battles in his party. The running mate provision, for example, would have resulted in a vastly changed power matrix in the next presidential term. It would have forced Mnangagwa to name his successor since it requires a presidential candidate to have two running mates who would become first and second Vice-Presidents. But the most important thing is that under the new system, the Vice-Presidents would be more autonomous, powerful, and difficult to remove than under the current system of appointed Vice-Presidents. While a President can hire and fire an appointed Vice-President, an elected Vice-President can only be removed from office through a formal procedure that is onerous. Mnangagwa knows how difficult it was for President Bingu wa Mutharika to remove his Vice-President Joyce Banda in Malawi after they fell out. Banda went on to succeed wa Mutharika when the latter died in office. Those who tried to block Banda failed miserably because the Malawian Constitution was clear on the succession procedure.

Additionally, since the first Vice-President automatically succeeds a president who would have been removed from office, the running-mate system poses the risk of an easier palace coup. Mnangagwa does not want this risk of a palace coup if he wins a second term. He does not want an impatient lieutenant breathing down his neck. To that extent, the removal of the running mates’ provision has much to do with the internecine battles within Zanu PF as Mnangagwa tries to manage his presidential space against an impatient and ambitious lieutenant. Those who argue that the removal of the running mates provision is an anti-Constantino Chiwenga manoeuvre are not far off the mark.

Finally, the amendments are being rushed because Mnangagwa is desperate to appoint the next chief justice and judges of the Constitutional Court. The current chief justice’s term expires in the next few weeks when he reaches 70 years of age. But one of the amendments seeks to extend the judges’ retirement age to 75 with an annual renewal after the age of 70. They might want to abuse this to extend the current Chief Justice’s term, although this would be illegal. Vacancies at the Constitutional Court have been open since May last year. Although interviews were held in September 2020, there have been no appointments. It looks like Mnangagwa wants to impose his choices outside the interviewing process conducted by the Judicial Services Commission. Unfortunately, the amendments have been rushed and in the process, fatal illegalities have been committed.

Why it is important to prevent a super-majority

This explains why it was so important to prevent Zanu PF from getting a super-majority at the last elections. Without a super-majority, Zanu PF would have had to bargain with the opposition to meet the minimum threshold requirements to change the Constitution. But the elections were a disaster for the Constitution because, with a super-majority, Zanu PF has the liberty to do whatever it wants.

This is also why in the future the opposition parties’ electoral strategies must change. It is not enough to gun for the presidency. If that is lost and Parliament is also lost by a super-majority, it creates conditions for authoritarian consolidation. Zimbabwe runs a system of harmonised elections, whereby presidential, parliamentary, and local authority elections are held at the same time. However, the focus is all too often on the presidential race because the presidency is seen as the centre of power. The disproportionate focus on the presidential election leaves the parliamentary race vulnerable. If Nelson Chamisa (MDC Alliance) had been declared winner of the presidential race in 2018 he would have had to contend with a very hostile Parliament in which Zanu PF controlled a super-majority.

One lesson to be learned from these constitutional amendments is that whichever party wins elections, it must never be allowed to have a supe-rmajority because that will give it too much power over the country’s Constitution. On Tuesday last week, people were running around yelling that the stable doors should be closed. The problem is that the horses had bolted three years before when Zanu PF won a super-majority in Parliament. The first point of protecting the Constitution is at the elections. It is there that people elect representatives they trust to protect the Constitution. It is also there that they can prevent any party from having a parliamentary super-majority. There is very little you can do once the horses have left the stables.

What is the role of Parliament?

The typical design of the modern State has three arms: the Executive, Legislature and Judiciary. The concept of separation of powers is attributed to 18th century French philosopher, Montesquieu who had studied the British system of government. Although his view of the British system was inaccurate, the model has been adopted in most modern States, albeit with varying levels of variations and intersections between the arms of the State.

Under the separation of powers, Parliament makes laws, the Executive implements and administers the laws, while the Judiciary interprets the laws. Parliament acts as a check on the executive, holding it to account for its conduct of governmental affairs. The Judiciary has the power to hold both the Executive and Parliament accountable. But that is the theory. In practice, there is a lot of overlap between these arms, for example, between the Executive and Parliament. Bills are initiated by the Executive which oversees policy and Parliament debates and passes the laws. Where the ruling party has a super-majority in Parliament, the Executive has more power to do as it pleases and Parliament becomes no more than a rubber-stamping institution.

This is the problem with Zimbabwe’s Parliament. With a Zanu PF super-majority in Parliament, there is nothing to hold the ruling party-controlled executive in check. All Zanu PF MPs are simply whipped into line and everyone does what they are told to do. The MPs are not free to exercise their minds and to make decisions that are in the interests of their constituents. Instead, they are required to toe the party line. This is why all Zanu PF MPs in the Senate voted for Constitutional Amendment Number 1 even though it was unconstitutional and illegal.

In short, Constitutional Amendment Number 1 is illegal because it violates section 147 of the Constitution which states that all Bill lapse when Parliament dissolves. Constitutional Amendment Bill Number 1 was introduced in the Eighth Parliament which was dissolved by operation of law on the eve of the 2018 elections. At that point, Constitutional Amendment Bill Number 1 lapsed. This means when the Senate of the Ninth Parliament sat to vote on the constitutional Bill early this month, there was, in fact, no valid constitutional Bill before it. Senate voted on a non-existent constitutional Bill. It is a legal nullity.

Yet, Parliament, with several lawyers in its ranks deliberately ignored this illegality. A judge of the Constitutional Court had in general comments in a judgment issued in February warned Parliament against passing a law that contravened the Constitution. Justice Patel said a law that contravened the Constitution would be a legal nullity. The Senate went ahead and ignored the advice.

When one MP, Innocent Gonese of the MDC Alliance raied raised objections with the Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi concerning the illegality of Constitutional Amendment Number 1, the minister admitted that there was no constitutional Bill that was before Parliament. Yet incredibly he went on to justify it.

The minister blamed the Constitutional Court for making the order and said Parliament had no choice but to comply even if it was wrong. “So, we do not have a Bill that is before Parliament, if the court erred — so be it. There is nothing that we can do because it is the superior court and the last court of appeal in terms of constitutional issues …” With all due respect, the minister misdirected himself. As Justice Bharat Patel advisedthat if Parliament commits an unconstitutional act just because a court says so, the outcome will still be a legal nullity. If, as Ziyambi said there was no constitutional bill before Parliament, what is it that the Senate passed on April 6 2021?

But the Justice minister was not alone in this misdirection. Another Zanu PF MP, who is a senior lawyer, Fortune Chasi also dismissed Gonese’s objections arguing that Parliament had a duty to follow the judgment even if it was leading Parliament to contravene the Constitution. “We have a duty as Parliament to ensure that we respect other arms of government and I think if we start trying to overturn the constitutional ruling in this process, we will be undermining the division of labour”, Chasi said in his contribution to the debate. Norton MP, Temba Mliswa (Independent) chimed in, saying Parliament was not a court of law and it had a duty to “respect the other arm of the State”.

In making this argument, both Chasi and Mliswa overlooked the cardinal principle that the Constitution is the supreme law and Parliament must uphold and respect it. This is what Gonese was asking Parliament to do and any self-respecting Parliament should be defending its autonomy rather than conceding ground to another arm of the State. Parliament is not subordinate to the Judiciary and it should apply its mind to what it does. Parliament cannot commit illegality just because the Judiciary says so just as an individual cannot jump into the raging fire just because the court says so.

Gonese was simply asking Parliament to review its course of action to comply with section 147 of the Constitution. Justice Patel had warned that Parliament had no right to carry out an unconstitutional act just because it was following a court order because it would lead to a legal nullity. The net effect of all this is that the defences put up by Ziyambi, Chasi and Mliswa were a combined exercise in futility because they did not cure the illegality of Constitutional Amendment Number 1. It is still illegal for contravening the Constitution. But what was disappointing in all this is that MPs were unwilling to defend their institution. Instead, they were happy for it to commit illegality. It’s as if Parliament has no autonomy. It is not surprising that ministers treat Parliament and MPs with contempt. They don’t respect themselves or their institution.

From making to unmaking the Constitution

Parliament’s weakness has worsened with the apparent co-optation of the MDC-T led by Douglas Mwonzora. The controlled opposition cannot even challenge the illegalities around the constitutional amendments. The lowest point of Parliament’s performance in this constitutional drama is personified by Mwonzora who has become a shadow of the stalwart who fought hard for the new Constitution. In what is certain to be one of the greatest somersaults in Zimbabwean political and constitutional history, an ardent builder of the Constitution has become an assistant of the demolition team.

Perhaps the most absurd moment was Mwonzora voting for a non-existent Constitutional Amendment Number 1 on April 6, 2021, blatant illegality. He must have known that it was illegal, but he voted for it. How does the leader of a party that claims to be in opposition vote for illegality? He had the opportunity to abstain even if he did not want to be seen to be opposing it. There was no reason to vote for an unconstitutional amendment except to ingratiate himself with the regime under the false guise of so-called “politics of rational disputation” which is a euphemism for politics of appeasement and capitulation.

But why would Mwonzora be embarrassing himself by making such incredible somersaults over positions that he has previously expressed against the constitutional amendments? A charitable view would be that he has changed his mind and people do change their minds. But it is implausible that he would change his mind from supporting legality to back clear illegality. There must be an incentive to support illegality. Perhaps the regime has kompromat on him, which means he finds himself doing the most absurd things that could not have been associated with him before. Even if the regime has no kompromat on him, maybe he realises that he has no future in the opposition beyond the current free-ride on the MDC Alliance’s electoral harvest in 2018 and is happy to hitch a ride on the gravy train. In this regard, voting for these illegal amendments and thereby defiling his legacy as a constitution-maker is part of a quid pro quo with the regime which has promised some concessions to his party. But more likely, these debts are in the past, what with all the backing that the regime has given to his outfit over the past year. It is impossible to imagine how a man of his intellect would willingly and freely vote for such illegalities as are associated with these amendments.

So, what can be done when Parliament is so weak?

The weaknesses of Parliament can give the impression that it’s a dead-end; that the Constitution is entirely at the mercy of a ruling party with a super-majority. But in the final analysis, that should not necessarily be the case. The fact that Parliament is weak does not mean that there are no other options.

The first option is the legal strategy, which is to challenge unconstitutional amendments in a court of law. That is what Gonese and Jessie Majome did in 2017 when they challenged the legality of Constitutional Amendment Number 1, leading to the judgment issued on March 31, 2020 which held that it was unconstitutional. This strategy can still be used to challenge the legality of Constitutional Amendment Number 1 following the latest Senate vote and to challenge Constitutional Amendment Number 2 which is currently in progress. But as is evident, the legal route takes time and suffers the risk of uncertainty. The court can make a finding of illegality but still make an incompetent order as it did last year when it directed Parliament to contravene the constitution by having a vote on a non-existent constitutional Bill. Also, because some members of the Judiciary have an interest in the passage of these constitutional Bills, the odds of a legal challenge will be exceedingly high.

The second option is the political strategy, which is to mount a political challenge to the unconstitutional amendments. This is about applying pressure by carrying out a popular resistance to the constitutional amendments. This is based on the founding principle of the Constitution that authority to govern is derived from the people of Zimbabwe. The declaration of rights has provisions that guarantee rights to demonstrate and exercise political rights. For example, section 59 protects the rights to demonstrate and present petitions as long as these rights are exercised peacefully. Section 58 protects the freedom to assemble and associate with others while section 61 protects the freedom of expression. Section 67(2) allows citizens to campaign freely and peacefully for a cause. Citizens can particulate, individually or collectively to influence, challenge or support the policies of the government or any political or whatever cause.

While it is true that the COVID-19 pandemic has led to a severe limitation of rights and freedoms, Zimbabwe is by no means the only country that has suffered these challenges. In other countries, citizens have continued to express themselves collectively. We can moan all day and night about the erosion of the Constitution but without collective action, the government will continue to do what it wants. The people must remind the government that even with the super-majority, they are still the repositories of authority and they can withdraw it if they wish.

Ultimately, it is important to remember that the Constitution cannot defend itself. It is just a piece of paper containing the collective imagination of a political community written on it. It depends on that political community’s belief and defence for its survival. If the people cannot defend it, the Constitution will die. The government has been able to use its super-majority and to ignore the representations made by the people during consultations simply because it can and there is no groundswell of public opinion to stop it. Now that it has tested the waters and they have seen that there is no one mounting a serious challenge, it will be back again before 2023, with yet more outrageous amendments.

Alex T Magaisa is a prominent Zimbabwean lawyer and constitutional expert currently teaching law at the University of Kent Law School in England. He once served as advisor of the then Prime Minister of Zimbabwe Morgan Tsvangirai from 2012-2013. He writes here in his personal capacity.