THERE has been a lot of scrutiny of the current process to author a new constitution for Zimbabwe.
There is no doubt that the process could have been refined to make it accommodative of divergent views expressed by other prominent stakeholders.
However as the process is moving on, it is imperative that much vigour and attention be channelled as well to one of the most important clauses in a constitution, the amendment clause. For failure to put a clause that will protect the constitution from abuse will inevitably undo all the good work that would have been put in producing an acceptable document.
Constitutions are amended for a variety of reasons, some noble, reflecting the need to adapt to changing times and needs of a nation, and some, unfortunately in Africa, due to selfish needs of ruling parties seeking to perpetuate their hold on power. There is a fine balance needed in achieving national objectives and personal objectives for those in power and in most cases selfish needs of incumbent regimes prevail.
The most common constitutional amendment in Africa has been the abolition of term limits for presidents. Those in power will seek to entrench themselves and would not want to relinquish it after the end of their terms, in most cases nurturing dictatorships.
In ZambiaÂ then president Fredrick ChilubaÂ wanted to amend the constitution so he could run for a third term in 2001. However that bid was defeated as civic groups vehemently opposed it, as did many members of the Movement for Multi-party Democracy. No motion was ever raised in parliament to that effect.
Bakili Muluzi of Malawi tried the same trick but failed to garner the two thirds majority needed to effect constitutional changes, so did president Olusegun Obasanjo whose bid was blocked by parliament in 2006.
Ugandan president Yoweri Museveni orchestrated the removal of the two-term limit in 2005 when he was reaching the end of his second term. The late Gnassingbe Eyadama of Togo managed to scrap the limit in 2002, so did Gabon in 2003 which allowed the late Omar BongoÂ to run for unlimited terms.
This trend is not peculiar to Africa alone. Hugo Chavez in Venezuela and lately the Russian constitution was amended extending presidential term limits. The current Zimbabwean constitution does not have presidential term limits. It is one area worth deliberating whether in our new constitution we should have a limiting clause.
A constitution is supposed to be a living document in purpose and in value. Thus constitutional interpretations change with the passage of time reflecting the society’s progression (purposive approach).
That flexibility in interpretation allows the country to move on sometimes without the need to consistently change the contents of the constitution. There are positives for having an entrenched constitution.
It fosters society’s values and founding principles and protects the supreme law from the whims of politicians.
There are two ways in which constitutions can be altered, that is wholescale or piecemeal. Wholescale entitles having a new constitution replacing the existing one.
Brazil has had seven constitutions since its independence in 1822; Mexico has had six (since 1857) whereas Venezuela has had 26. Piecemeal is the most commonly used method when certain sections of the constitution are amended leading to a patched constitution.
The US constitution, which is probably the oldest constitution in the world, has been amended 27 times in its more than 200 years of existence. India has amended its constitution 94 times in 60 years and Zimbabwe has amended its constitution 19 times in 29 years since Independence. The current Zimbabwean constitution as amended by amendment No 19 of 2009 is the highlight of constitutional amendment madness.
It is the only constitution in the world that states by name who the occupier of the prime minister’s office is, that is Morgan Tsvangirai. If, God forbid, Tsvangirai is killed, removed or incapacitated that he won’t be able to discharge his duties, Zimbabwe will need to amend the constitution for someone to take over that post. If someone is subsequently elected (without amendment) who is not another Tsvangirai, that will be unconstitutional. The election will be ultra vires the constitution. How absurd!
Reflecting its supremacy, most amendment clauses require a two-thirds majority to amend the constitution. The requirement for an absolute majority rather than a simple majority was designed in theory to safeguard the constitution from the whims of current regimes.
It was hoped such a number meant that thorough debate would have preceded the voting and that all divergent views would have been accommodated. In addition it also sets the difference between a normal act of parliament and supremacy of a constitutional provision. For a normal act requires a simple majority to pass through in most jurisdictions whereas a constitutional amendment requires an absolute affirmative vote.
Other writers use the terms flexible and rigid constitutions basing on the amending process. Flexible if only a simple majority is required as in the UK (the UK does not have a codified constitution). The doctrine of supremacy and sovereignty of parliament means no law in theory is above an act passed by the UK parliament. However, this is not true, legally speaking, as European Union law is supreme).Â An absolute majority is required in Zimbabwe.
In global south, there have been dominant ruling parties with little opposition or fragmented opposition. Party cadres, including MPs, are always required to toe the party line, even if they have serious doubts as to the essence of a constitutional amendment.
Failure to toe leads to being kicked out of the party and loss of your parliamentary seat, and probably the end of your political career. This is a price most politicians are not prepared to pay meaning the absolute majority requirement has not saved any purpose except in a few countries.
Zanu PF has had an absolute majority in parliament since 1987 (after the Unity accord and removal of the 20 seats originally reserved for the whites in the Lancaster House constitution) up to 2000, and in that period 16 amendments were made to the constitution.
The bulk of the amendments were done to entrench Zanu PF’s hold on power and drive the country towards a one-party state. Even if Zimbabwe was not officially declared a one party state the current laws and set-up of the institutions of government and controls are replicas of a one-party system. There was no public participation in those amendments and the public’s opinion was not sought. Constitutional amendment No 16 of 2000 is the epitome of the negativity
of an absolute majority in such a skewed political landscape. The last thing the 2000 Zanu PF-dominated parliament did was to call all its MPs to amend the constitution to provide for compulsory acquisition of arable land.
It is the same clause that Mugabe put in the constitutional draft prepared by the government-appointed Chidyausiku Commission in February 2000 before it even went to the referendum. It should be noted that the draft was supposed to be a collection of the views of the citizens and collated through the thematic committees set up to prepare the draft.
If in the thematic committees there was no demand for that clause, whose interests was Mugabe representing in amending the draft then? That clause has been the dominant Zanu PF campaign theme since 2000 and the results are there for all to see.
The current constitution requires any amendments to be voted affirmatively by two thirds of both houses of parliament. This is provided by Sec 52 a. This provision covers all sections of the constitution.
It is my submission that Zimbabwe moves away from this two-thirds majority clause because of the precise reason that it is subject to abuse. Some might argue that with the emergence of the MDC there are checks and balances and no party has the numbers. Two scenarios persuade me to say this.
Firstly Zanu PF knew they would lose a run-off against PM Tsvangirai in the last stolen election of 2008, that’s why they reverted to their most efficient campaigning tools, coercive mobilisation, torture, murder, arson, rape, kidnapping and intimidation assisted by state machinery and institutions.
There is no evidence that in future elections Zanu PF would not do the same.
And they might not be bothered if MDC withdraws like what happened in the run-off. They will conduct elections which the lesser parties will contest and they will forge ahead with a parliament they dominate thereby also deal with their succession issue.
Secondly, if a free and fair election is made possible in Zimbabwe with the MDC allowed to freely campaign nationwide without hindrance and with equal access to airwaves, I have no doubt that MDC will win more than a third of the seats they contest. Whereas that will be good for MDC members, there is no guarantee that we will in future not behave like Chiluba tried to do and try to manipulate the constitution to entrench our power.
The solution is to have a two thirds plus clause. This has been applied mostly to federal states of which Zimbabwe is not one. However I am positive that unitary states can also adopt this formula to safeguard the vanguard sections of their constitution from abuse without necessarily inhibiting progress by making constitutional amending a near impossibility.
The SouthÂ African constitution requires a two thirds majority in National Assembly as well as a supporting vote of six of the nine provinces represented in theÂ national council of provinces [Sec 74 to effect constitutional changes. A bill amending the founding values as stipulated in Section 1 of the SA constitution actually requires a 75% percent majority.
Australia through Sec 128 of its constitution states that amendments must be approved by a referendum after securing an absolute majority in both houses of parliament, and secondly that this be approved in a referendum by majority of electors nationwide and a majority in a majority states. Forty-four proposals to amend the constitution have been voted at referendum and only eight have been approved.
India requires two thirds of the Lok Sabha and the Rayja Sabha (the two houses of parliament) for some of its clauses whereas some just need a simple majority. It further requires amendments linked to distribution of legislative authority between the federal executive and the states to be amended by special majority and a referendum.
Amending the US constitution requires a two-thirds majority in both houses of congress. In addition the amendment should be affirmed by three quarters of the states or by the same fraction of state conventions.
Zimbabwe has fairly static provinces and I’m sure this formula can be utilised to safeguard our constitution.
There are certain sections in the constitution that go to the heart of the founding principles, our values that identify us as a country, as citizens and our institutions and these require that the generality of the populace be consulted and have a say when there is a proposal to amend them.
These include sections like defining theÂ Republic of Zimbabwe, supremacy of the constitution, our bill of rights, the tenure of the presidency, prime minister and executive, parliament, independence of the judiciary and other independent commissions established, and the no impunity clause.
Sanderson N Makombe can be contacted at email@example.com.
ByÂ Sanderson N Makombe