The post-colonial state in Africa was in the main founded on negotiated constitutions that by and large, were Westminster in construction. Report by Tendai Biti
The typical Westminster constitution provided for standard constitutional provisions such as the bill of rights, the separation of power between the judiciary, legislature and executive and to some extent the creation of some minimalist oversight bodies, the office of the ombudsman and that of the comptroller and auditor-general being the most common.
In these constitutions, although a bill of rights exist, to the extent that Parliament is largely allowed to derogate on the same, it is fair to say that the Westminster constitution establishes a Parliamentary hegemony as opposed to constitutional hegemony.
Despite the existence of these constitutions and despite the fact that every post-independent African state has had a constitution, the constitutions have not established or reproduced any sustainable legal order or social contract.
The record of Africa in the last 40 years has been that of constitutional abuse, privatisation, militarisation and criminalisation of the state, reflected through military coups, corruption, patronage and clientelism.
The biggest failure of the African constitution has been its failure to curb power and perpetuity. Thus Africa has been dominated by little tin-pot dictators that have absolutely monopolised the state. This includes the likes of Félix Houphouët-Boigny, Mobutu Sese Seko, El Hadj Omar Bongo Ondimba, Teodoro Obiang Nguema Mbasogo and Daniel Arap Moi, among others.
In all these African countries, a charade of the law exists; regular elections are in fact, held.
In short, every effort to adhere to formal legalism and constitutionalism is made. In the case of Zimbabwe, in per capita terms, more elections have been held since 1980 than in any other country, but everyone knows that democracy is in the intensive care unit.
The critical question to interrogate then is; what is the problem with African constitutions and what explains Africa’s predatory and altered state? There are many explanations to Africa’s failure, but it is uncontestable the fact that the African legal order has failed and African constitutions have not delivered, primarily because they have been constitutions without constitutionalism. Constitutionalism goes beyond the mere constitutional text passed and adopted by Parliament.
Constitutionalism refers to a set of rules, written and unwritten, standards and traditions that must be located inside and outside that constitution. Constitutionalism refers to constitutional safeguards and the existence of constitutional roadblocks and humps that prevent abuse.
Unfortunately, given the existence of weak economies characterised by huge levels of poverty, the absence of institutions, in particular, weak and subordinated judiciary and legislature, press, trade unionism and civic society, the African constitution has been a paper tiger.
It has failed to curb the excess of predatory and imperial presidents such as Nguema and others. For many of these tin-pot dictators, legitimacy is not derived from the people or from some constitution that in any event was negotiated with the colonial power. that fact alone makes the dictator regard the constitution as an irritant and an inconvenience to be discarded at any convenient political opportunity.
In a mere 32 years, the Zimbabwean constitution has been amended 19 times. The only other law which has been amended more times, is the Finance Act. By far, the majority of these amendments have not been based on the need to preserve and improve on the constitution, but on the contrary desecration and weakening of the same. Put simply, the constitutional amendments have been motivated by politics, power and control almost without exception.
In the case of Zanu PF, its disdain for constitutions does not start with the national constitution.
Let us examine Zanu PF’s encounters with its own internal constitution. It is unclear when the first Zanu PF constitution was written, but what is self-evident is the fact that the constitution has always been and will always be what President Mugabe wants and does not want.
One can make reference to the dubious manner in which Mugabe assumed ascendancy over Ndabaningi Sithole and other senior members of the Dare.
This breach of internal constitutional rules has been brilliantly captured by Wilfred Mhanda in his autobiography; Dzino: Memories of a Freedom Fighter.
Mugabe wields too much power: Biti
As recent as November 2004, Mugabe simply got out of an aeroplane and announced that one of the Vice-President positions was now reserved for a woman. The Zanu PF constitution had not been amended, but what he said became law and the “Dinyane” faction of Zanu PF was dealt with a timely but illegal blow.
More recently, a simple politburo meeting had the audacity of dissolving constitutionally-established district co-ordinating committees, not withstanding that only the Zanu PF congress has the power to amend the constitution.
Years back, Mugabe made the decision that Politburo members, contrary to the provisions of the Zanu PF constitution, would be handpicked by the President, a position that still prevails up to date.
How does one individual in a huge political organisation have the sole power and right to choose members of the most important political organ of the party in between congresses?
The above examples reflect the fundamental position this party, Zanu PF, has always been driven by predatoriness and “thugocracy” .
Respect of the rule of law and order and constitutions is not in its DNA. The constitutions, laws and systems are acts of inconvenience.
It is law of the jungle. I am not a moviegoer, but recently I have been most impressed by Johnny Depp’s portrayal of Captain Jack Sparrow in the Pirates of the Caribbean movies. These movies capture periods where high seas were rife with lawlessness, aggrandisement and greed.
Zanu PF and its captain Mugabe would have found themselves in good company in the high seas among its legendary citizens, than Captain Barbossa and Davy Jones, the mighty “Long John Silver”.
‘Let’s rebuild Zimbabwe’
This country has suffered as a result of omissions and commissions of a leadership that had no vision, no plan and no strategy. Most importantly, an exhausted leadership that regards the truth, laws and rules as irritants.
Three things have driven Zanu PF. These are, one, the pursuit of power and power alone, two, self-aggrandisement and self-enrichment and three, power retention and perpetuity. A typical Machiavellian mindset; get power, hold on to it and never let go.
As I indicated in my previous articles, the above three matrixes are the dominant fingerprint in the Zanu PF constitutional draft. The same is a charade of constitutionalism. It’s a bastardised document, a constitution without constitutionalism.
It is an obligation of all democrats and peace-loving Zimbabweans to ensure that we liberate ourselves from the shackles of exhausted nationalism and neopatrimonialism. That we redefine a new social and legal order, where our children and future generations can live in triumph and in pursuit of its happiness is imperative.
It is important that we settle the constitutional question once and for all and in this regard the forthcoming second all-stakeholder’s conference is key. Our hope and prayer is that this conference will be a success and that it must pave way for Zimbabweans to go to a peaceful referendum. Evil must not be allowed to triumph over good and we know that the majority of people in Zanu PF are decent people who would want to see the agreed Copac draft triumph over the Zanu PF’s manual.
It is time we rebuilt this country. We graduate from cyclical politics of destruction, uncertainty and poverty. It is time to make Zimbabwe work again.
We cannot continue to be denigrated, abused and assaulted by essentially one person. We are too blessed, too gifted and too intelligent for this. Wake up Zimbabwe! Wake up!