We voted “YES”, but it’s NO time to celebrate the new Constitution yet.
REPORT BY NEVANJI MADANHIRE
In giving the new charter the nod, Zimbabweans said it didn’t matter that the constitution-making process was half-people driven and half-political-principals driven. Zimbabweans have reached a stage where they have seen the futility of entrenched positions and have seen the life-giving properties of compromise.
The constitution-making process and yesterday’s referendum were but two minuscule steps in a complex progression that must now move into its most difficult phase, hence there is need for cautious optimism.
By so fervently participating in the outreach programme, the drafting and the referendum, Zimbabweans have shown that they are agreed on the importance of having a supreme law of the land, but are they also agreed that they should uphold it? Therein sits the crux of the matter!
Our belief in constitutional government means that the principles or practice of government must be regulated by a constitution. This belief is also called constitutionalism and it is the reason behind all the excitement around yesterday’s referendum. But constitutionalism by definition presents its own problems particularly in a country such as Zimbabwe which has been ruled by a dictatorship for over three decades, which dictatorship is so well-entrenched its edifice is not about to collapse in one go, any time soon.
“Constitutionalism is the idea, often associated with the political theories of John Locke and the ‘founders’ of the American republic, and equated with the concept of regula iuris [the Rule of Law], that government can and should be legally limited in its powers, and that its authority depends on enforcing these limitations.”
A day after the vote, do we feel that the constitution we voted for legally limits our present government’s or our future governments’ powers?
When scholars debate constitutions, they inevitably reference their arguments on the Magna Carta, a 13th century document written by feudal lords forcing the King of England to limit his power and protect their privileges. Although it was a selfish document by the feudal lords — it sought to protect only their liberties and rights, not those of the common people and serfs — the Magna Carta has been immortalised by two clauses that still form the basis of almost all constitutions today.
“No freeman shall be taken, imprisoned, disseised [to deprive somebody wrongfully of possession of land], outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgement of his peers and by the law of the land.”
“To no one will we sell, to no one will we deny or delay, right or justice.”
British lawyer and judge, Lord Denning (January 23 1899 – March 5 1999), described it as “the greatest constitutional document of all time — the foundation of the freedom of the individual against the arbitrary authority of the despot”.
It was also described as “an important symbol for those who wished to show that the King [read president] was bound by the law.”
Does our new constitution ensure that the president is bound by the law?
During the decade of Zimbabwe’s political crisis, the country saw how governmental institutions were subverted to serve certain political interests. Beginning with the judiciary it was seen how noncompliant judges were systematically removed and replaced by those who were ready to pander to the whim of a certain political party. The independence of the judiciary was therefore irreparably compromised.
The security sector was emasculated in a similar way, with leaders being appointed not necessarily on merit but on their willingness to defend the system. Because of this, we saw security services chiefs openly becoming political in a way that denied the common people their rights of peaceful assembly, association, and freedom of expression. The people were denied their democratic right to freely elect who they wished to be ruled by through intimidation and open coercion by the uniformed forces. Security chiefs were ready to subvert civilian authority!
Property rights were subverted without recourse; police said they would not interfere in political issues even when they amounted to criminality. In other words, there was no rule of law, which is what constitutions are all about.
The new charter doesn’t limit presidential powers; either of the incumbent or whoever is elected in the next elections that should come in the next few months. The president retains the power to appoint all important players in the state which makes them answerable solely to him.
Under the new constitution, in addition to appointments made under other statutes, the President will appoint: the Vice-Presidents, all ministers, the cabinet, permanent secretaries, ambassadors and diplomats, Judges, the Attorney-General, the Prosecutor-General, the Auditor-General, all commissioners to all commissions; the Citizenship and Immigration Board, Traditional Chiefs, and the heads of all Security Services. [Research and Advocacy Unit]
This is what the president has always done and we saw how this was problematic during the political crisis.
The new constitution lamely stipulates that appointments “to offices in all tiers of government including government institutions and agencies and government-controlled entities and other public enterprises, must be made primarily on the basis of merit”. But merit is not clearly defined, making it impossible to put in place any checks and balances. In the past decade we have seen how being a war veteran has cynically been made an important qualification for public office ahead of academic achievement and experience. Often we have also seen nepotism and tribalism come into play.
Clearly the new constitution does not unequivocally make the statement that the president is bound by the law! This will be a source of strife both in the near and the distant future as people’s liberties are subverted by presidents with dictatorial tendencies. In the next few weeks, Zimbabwe will watch with bated breath how the new constitution withstands the test of a watershed election in which civil liberties will be the majority’s battle cry. Will civil liberties be respected when there has not been a concomitant security sector reform; when state institutions are still so intractably compromised?
When King John affixed his signature onto the Magna Carta on June 15 1215, he averted a looming civil war, but when 10 weeks later Pope Innocent III nullified the agreement, England plunged into internal war; this just shows how strong the people’s desire for liberty is and the extent to which they are prepared to go to fight for it.