While the “Yes” vote prevailed in the March 16 2013 referendum, it remains to be seen whether this will mark a new dispensation in Zimbabwe’s political discourse considering that the country has no history of problems of constitutions, but of constitutionalism, that is abiding by what we have written down.
Sunday View with Fanuel Mabhugu
If the Lancaster House and its 19 amendments was enforced as per its letter and spirit, there would not be a crisis of governance in Zimbabwe, as is the case at the moment.
Even the inclusive government could have been a success story if the whole Global Political Agreement (amendment 19) had been respected by all the three political parties in the Government of National Unity.
I am one of those who do not think that there is any fundamental and substantial difference between the Lancaster House Constitution and the copac draft constitution, which was endorsed by most Zimbabweans on March 16.
Both are transitional documents with many compromises and entrenchments to protect the ruling elite, which are not people-driven.
Whereas the Lancaster House had 19 amendments in 33 years, I can predict that the copac-led constitution will have an equal number in less than five years given that neither Zanu PF nor the two MDC formations is completely comfortable with it.
The copac draft constitution, which sceptics have labelled an elite pact, will not achieve the feat made by the US constitution which has had only 22 amendments in more than 200 years because there is a serious dearth of constitutionalism in Zimbabwe.
Given the foregoing, whichever political party that emerges the winner is going to stream-roll constitutional changes to the copac draft constitution at a faster rate than what happened to the Lancaster House Constitution under Robert Mugabe’s Zanu PF rule.
My respectful submission is that since history is going to repeat itself like this, the copac draft constitution is not going to lead to a more open and responsive democracy as other people would want us to believe, but will be manipulated by the next ruling party to entrench an even more powerful dictatorship.
It can, therefore, be argued that constitutional development in Zimbabwe will not take us anywhere unless it is accompanied by a change of mindset, where constitutionalism is elevated more than constitutions.
As long as Zimbabwe remains an authoritarian and totalitarian state, elaborate constitutions will not be the panacea to its governance crisis.
Nothing will change when the ruling elite continue to act outside them or suspend or amend them at will with impunity, in the manner Zanu PF has behaved since independence.
What Zimbabwe needs is an appreciation that since written constitutions are historically associated with political liberalism and the age of enlightenment, they should be enforceable to all and sundry.
It is also my considered view that in the absence of a political will to embrace the doctrine of separation of powers among the three arms of state by the ruling elite, nothing is going to change, no matter how elaborate any constitution can be.
While the constitutional development in Zimbabwe shows that there has always been an attempt to fix the limits and relations of the legislative, judicial, and executive powers of the state, there has been a glaring abuse of the other two arms of the state by the executive as the on-going tussle about the election date shows.
It remains to be seen whether this is going to change when the Copac draft constitution is assented to as the new governing charter of Zimbabwe before the harmonised elections are held.