HomeBusiness DigestConstitutionalism v constitutionality

Constitutionalism v constitutionality

Dr Alex T Magaisa

ONE of the key features arising from the recent constitutional amendment (Amendment No 17) in Zimbabwe is the concern over the legal and institutional basis of governan

ce in the local political context.

In particular, the amendments raise questions over the purpose of the constitution and the distinction between constitutionality and constitutionalism. It seems that the leadership is more preoccupied with constitutionality than it is with advancing constitutionalism. Instead of the constitution being the supreme legal document regulating the exercise of state power, it has become an instrument for control and attempts to legitimise arbitrary actions. Such manipulation of the constitution will do further harm to the country’s political profile and consequently, its economic fortunes.

The content of the constitution is affected by the manner in which it is created. A wider and more inclusive process of constitutional change could pave the way for wider political and economic transformation in the country, in the same way that the Convention for a Democratic South Africa (Codesa) talks ushered change in South Africa in 1994.

It is generally accepted that in a constitutional democracy the authority of the majority is limited by legal and institutional arrangements in order to protect the rights of the minorities and individuals. The system is expected to ensure that while the majority has the authority to form the government and rule, the rights of minorities are also taken into account.

The constitution is the basic document that provides for the basic legal and institutional structures for the exercise of state power and its relationship with the citizens. It enshrines the Bill of Rights to protect the individual and provides for the separation of powers between the different arms of the state in order to prevent the concentration of power in a single individual or structure.

It also enables the provision of checks and balances between the structures of state power. In all this, the basic aim is to ensure that those who govern are restrained by observing the laid down rules and procedures so as not to excessively use their powers. It also enables individuals and minorities to seek recourse whenever the majority threatens their rights.

There are fundamental values underlying the system of constitutional democracy – fairness, justice, equality, separation of powers, due process of law, etc. The antithesis is arbitrary rule where the state exercises its power without restraint or checks and balances.

The recent amendments demonstrate an unhealthy preoccupation with constitutionality but no concern for constitutionalism. By this I refer to the tendency to focus on the constitution as a simple legal document with a set of rules that simply validate and legitimise government actions. The idea is that those in power find comfort in inserting rules in the constitution for purposes of validating their actions regardless of their impact on the rights of citizens.

Whenever they are challenged they always raise the defence that they are acting precisely in terms of the constitution. Such rules may even entrench arbitrary rule and may violate the basic values of constitutionalism but they nonetheless satisfy the basic needs of those that propagate them since they are technically part of the constitution.

This tells us that mere legal constitutionality is not the answer in a democracy. In other words, simply inserting clauses in a constitution does not meet the basic demands of constitutionalism and does not advance democracy. The source of legitimacy does not lie in the mere presence of a clause in a constitution but also in the values that it represents and the way in which it is created.

Defining constitutionalism is a matter of great philosophical debate and cannot be exhaustively covered in this article. However, the implication of constitutionalism is that in exercising its powers the government should be limited by law. Its authority over the people is dependent on its observance of the limitations under the law.

Those limitations are usually enshrined in the constitution. When such limitations are removed, as is the effect of the recent amendment, which ousts the jurisdiction of the courts in matters involving certain aspects of property, it undermines the very essence of constitutionalism. The implication is that unlike constitutionality, the mere insertion of a clause in a constitution does not mean that the government is acting according to the tenets of constitutionalism.

The government ought to observe its limitations and address constitutional values as defined by the people. Whereas simple adherence to constitutionality might give comfort to the government that it is right because it is acting in accordance with the constitution, it does not mean that its actions are legitimate if they violate the spirit of constitutionalism. In turn, the very basis of legitimate governance is undermined.

This is why the recent amendments raise questions over the approach we are taking as a nation. The amendments have the effect of validating the exercise of state power by making its actions (including past actions) technically constitutional. However, fundamental questions remain as to whether the key values of constitutionalism have been taken into account.

This is more than a question of legal technicalities. It goes beyond the concern of lawyers but touches on the very essence of governance.

Do we have constitutions simply to validate government actions or do we have them to create the legal and institutional structures to safeguard citizens’ interests? Is the constitution an instrument for the exercise of power or is it for the control of power? If the constitution is simply to provide for the exercise of power is it necessary at all? In my opinion, these are questions that we often overlook, take for granted or leave to a very small section of the population. Yet they have wider and far-reaching impact on the political, economic and social life of the nation.

One of the problems is that wider society is generally unaware of the significance of the constitution and constitutionalism. In Zimbabwe, prior to 1999 knowledge of the constitution was largely restricted to the legal profession, politicians, political scientists and few other professions whose constituents had come across the document in the course of their studies. The constitution itself was a compromise reached at the Lancaster House Conference in 1979 to end the war of liberation.

As with many other African countries, the constitution in Zimbabwe was not created by the local people but was a document drawn up with the strong influence of the former colonial power. This flawed process of creation is part of the fundamental weaknesses of constitutional democracy in countries like Zimbabwe as opposed to South Africa, which created its own constitution in a more inclusive and open process in which citizens were widely represented.

The compromises at Lancaster are reflected in the original constitution, which by and large postponed some of the problems that have recently come to haunt Zimbabwe. It may be no use crying over spilt milk but suffice to say that had the original constitution been more people-driven and inclusive, perhaps things could have turned out different. A constitution should reflect the history, aspirations, and vision of the nation. The original constitution did not do this and for that reason it was a weak legal instrument. And perhaps Britain as the former colonial power may have to acknowledge its part in the failure to usher proper constitutional basis at the relevant time.

The recent amendments, as others before in the last 25 years, are attempts to re-work the original constitution to reflect some of these concerns by a section of the society. Constitutionalism holds that the process by which a constitution is made is as important as its content. Similarly, the process by which the government is trying to change the constitution is also flawed. Some of its intentions that at any other time would be right and legitimate have been tainted by the manner in which they have been done.

The number of amendments that have been made over a short space of time – 17 amendments in 25 years reflects some of these errors. Zimbabwe’s constitution now resembles an old pair of trousers with several patches all over. In Shona, we would say rave tirauzi rine zvigamba. In our youth, it was not nice to be seen in public wearing such a pair of trousers. It was better to get new material and ask the local tailor to make a new one. This is what Zimbabwe needs – a new pair of trousers rather than one with patches all over.

In conclusion, these amendments demonstrate that as a people we seriously need to re-examine our attitude to the constitution. The constitution is not simply a document that should concern lawyers and political scientists. It is the soul of the nation and the foundation of the system of governance. Ideally, the constitution should regulate the power and relationships between the government and the citizens and not as a means of legitimising the exercise of state power.

The idea of the constitution is not to give power to the state but to limit its exercise in order to protect the minority from the oppression of the majority. When the constitution is created to legitimise state actions and validate its exercise of power and remove limitations, the result is a constitution without constitutionalism. Legal constitutionality as opposed to constitutionalism is as dangerous as arbitrary rule. The constitution should be sacred, serving the interests of the people and safeguarding their rights.

We must avoid at all costs attempts to manipulate or downgrade it. Piecemeal amendments are not the solution to the flawed constitution handed down at Lancaster in 1979. As in South Africa in the early 1990s, a people-driven, more inclusive process and a home-grown constitution is what Zimbabwe desperately needs at this stage.

And better still, that could be the most convenient forum to address the critical problems currently facing the country. But this requires political will both of the chief political players in Zimbabwe and the external friends and associates of the country.

*Dr Alex Magaisa is a specialist in corporate and financial servics law. He can be contacted at wamagaisa@yahoo.co.uk

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