Lessons for Zimbabwe’s constitutional reform process
http://www.thezimbabwean.co.uk/
Having inherited a constitution negotiated between the colonial and
liberation forces at the dawn of independence (the Lancaster House
Constitution) in 1979 and having amended that constitution 19 times in the
last 30 years, Zimbabwe is trying for the second time in just over a decade
to completely overhaul its constitution.
28.07.1102:53pm
by DR ALEX T. MAGAISA
The first attempt to create a new constitution failed when voters at the
referendum rejected the proposed constitution in February 2000. The major
grievance was in regards to the process of making the new constitution,
which civil society groups criticised as dominated by, and intended to
advance, government interests.
The current process, which is led by a Parliamentary Committee (Copac), is
part of the agreed package of reforms in the Global Political Agreement
(GPA) that should culminate in a referendum in 2011. Experience since
independence has demonstrated the government’s pre-occupation with the
constitution as a
means of legitimising its power and less as a mechanism for limiting such
powers. A number of the 19 amendments have served to reverse the effect of
decisions made by the courts of law and some have even ousted the
jurisdiction of the courts leading effectively to the concentration of power
within the executive branch of government.
Arbitrary power
The government appears to have been interested only in
legality/constitutionality and paid scant regard to constitutionalism by
which principles governmental power must be limited.
This article demonstrates the dearth of constitutionalism by analysing some
court decisions and constitutional amendments that have effectively eroded
the limits on governmental power. This article also warns that a narrow
focus on constitutionality can mean that instead of the constitution being
the supreme legal document controlling the exercise of state power, it
simply becomes an instrument for autocratic control, legitimising rather
than preventing arbitrary power – the very antithesis of constitutionalism.
This article demonstrates that constitutionality is not enough and that to
promote democracy, it is necessary to implement the principle of
constitutionalism. The article draws heavily on Zimbabwe’s recent
constitutional history to illustrate shortcomings in regards to
constitutionalism. It will argue that through the colonial period and most
of the post-independence era there has been an erroneous focus by successive
governments on mere constitutionality (or simple legality) at the expense of
constitutionalism.
Overall, this article advocates a serious re-evaluation of the collective
attitude and approach towards the constitution; that in making it, concern
is not only in defining what is constitutional but also in ensuring that
those constitutional clauses conform to and advance the principles
and values that underpin constitutionalism. The hope is that as Zimbabwe
undertakes the drafting of a new constitution, those tasked with drawing up
the draft can learn some lessons about the critical elements that are
necessary for this purpose.
Constitutionalism’s core ideas
It is a basic tenet of constitutionalism that a constitution is not simply a
collection of rules and institutional arrangements regarding the use of
state power but it is, in addition, about placing limits on that power (Belz
1998). It is the idea that government should be legally limited1 and that
the authority of government is dependent on the enforcement of such
limitations against itself (Wormuth 1949).
The principle says that a constitution not only describes but also restrains
government. The core idea of constitutionalism is probably best encapsulated
in the words of one of the Founding Fathers of the United States
Constitution, James Madison, who wrote in The Federalist No. 51:
“In framing government which is to be administered by men over men, the
greatest difficulty lies in this: you must first enable government to
control the governed; and in the next place oblige it to control itself. A
dependence on the people is, no doubt, the primary control on government but
experience has taught mankind the necessity of auxiliary precautions.”
This passage confirms three critical points:
• First, that a government is necessary and that its power must be
facilitated to enable it to have control and to fulfil the interests of the
governed;
• Second, that government cannot be completely trusted with power and that
this power must therefore be restrained (Allen & Thomson 2005); and,
• Third, whilst acknowledging the role that people may play in controlling
government it says that this is inadequate and unreliable and therefore that
it is necessary to create ‘auxiliary precautions’ to control governmental
power. As Wormuth (1949) states, constitutionalism is synonymous with these
‘auxiliary precautions’.
According to Kay, “The special virtue of constitutionalism … lies not merely
in reducing the power of the state, but in effecting that reduction by the
advance imposition of rules.”3 Furthermore, as asserted by Wormuth, the
legitimacy of governmental authority turns on its enforcement of the rules
limiting its authority. In this regard, it may be said that
constitutionalism is synonymous with the rule of law, which is the more
commonly used terminology.
Next week the principle of constitutionality will be explained, and we will
also look at the effects of previous amendments to the constitution. – First
published by OSISA (www.osisa.org)