ZIMBABWE’S governing elite has the unerring instinct for doing wrong things for the wrong reasons. It has an odd inclination for spitting the dummy whenever situations appear to overwhelm it through enacting contentious and debasing legislation. For the pas
t 25 years, Zanu PF has been amending and degrading the Lancaster House constitution and laws it deems objectionable more for political expediency than to promote democratic practices.
The constitutional amendment that Zanu PF hurtled to enact this week illustrates how the ruling elite has let Zimbabwe fly off the handle through bad governance and are groping about to gain a total stranglehold on public life.
Legal experts say the welter of amendments contained in the Constitution of Zimbabwe Amendment Bill seeks to curtail the most fundamental principles of democratic government entrenched in the separation of powers of the Legislature, the Executive and the Judiciary. In any democratic country the separation of powers provides vital checks and balances to prevent abuse of power by those who wield it on behalf of the people.
The constitutional amendments mean Zimbabwe will no longer be a land of the habeas corpus — a fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.
Says the Law Society of Zimbabwe (LSZ): “The amendment will seriously erode if not remove the enjoyment of fundamental rights to property, secure protection of the law and freedom of movement of the people who rely on the Constitution for protection against unchecked state action.”
In a statement censuring the Constitution of Zimbabwe Amendment Bill, the LSZ says government intends to oust the jurisdiction of the courts, while other critics say the amendment will emasculate the judiciary and raise barriers to independent judgements.
MP for Tsholotsho Jonathan Moyo says the Bill has nothing to do with Zimbabwe’s national interest as it serves Zanu PF interests only.
“The Bill does not have ideological, constitutional, institutional or economic principles that are shared by the body politic. All it has is the principle of political expediency,” he said.
Much more than anything else, amendments to the Land Acquisition Act regarding compensation need a re-look in the interest of equity and social justice in order to restore much-needed national and international confidence in the economy.
Land experts say the haphazard land reform programme, initiated more out of political expediency than economic sense, has cost the country an estimated US$15 billion in lost value over the years.
In any event, the best of the farmland in Zimbabwe will have no market value as an economic asset as long as the acquired land is not compensated for.
“Solving an administrative problem through a constitutional amendment is the height of incompetence and lack of creative imagination and a government that suffers from this to the point of seeking constitutional refuge has no business pretending to be in power,” Moyo says.
“The effect of the Bill will elevate to constitutional provisions legislation which allows the executive to deprive property owners of their property,” the LSZ argues.
Twenty-five years ago the world hoped that Zimbabwe would learn from the bad example of colonial Rhodesia and chart a new path of just laws.
It is as ironic as it is dismaying that the Mugabe government has instead decided to follow the example set by Rhodesia in creating repressive laws that restrict individual freedoms.
Those offensive laws are upheld by a compliant judiciary that appears to act from a position of threatened privilege.
“Zimbabwe’s judiciary has not been left to interpret legislation independently. The Supreme Court has been fully packed with those who are Mugabe’s acquiescent adherents. The High Court has also been ‘transformed’ into one that largely upholds the government’s wishes,” says the International Bar Association.
Besides, the Bill will allow the Executive to restrict the movement of the people, depriving citizens of such a basic human right. Legal experts fear that the Executive could act on the basis of vague and ambiguous criteria which can easily be abused such as national interest.
It allows for the reinvention of a Senate stuffed mostly by also-rans in the last election as a reward for their membership of the ruling party. More significantly, the reintroduction of the Senate where President Mugabe appoints six members will perpetuate the undemocratic practice of allowing an individual to usurp the electorate’s right to select representatives of their choice.
Legal Affairs minister Patrick Chinamasa assured the Zanu PF politburo that the Senate was a stop-gap measure until year 2010.
The Senate proposed under the Bill signifies a penchant for profligate use of taxpayers’ money without adding justifiable value to democratic practice during a time when the national economy is tottering on the edge of the precipice.
Moyo says the Zanu PF government has lost a glorious opportunity to prove their detractors wrong by demonstrating an unwavering commitment to the rule of law and there cannot be any rule of law where the courts are ousted from their constitutional role of interpreting the law.
Paul Themba Nyathi, the opposition Movement Democratic Change (MDC) secretary for information says the passing of the Constitutional Amendment Bill represents a flagrant disregard for democratic processes.
“The creation of a Senate is in no way a move to improve legislative oversight. It has simply been created as an extension of presidential patronage, aimed at soothing bruised egos within the ruling party,” Nyathi says. He says a constitution should be formulated in full consultation with the people.
“It rejected this opportunity and instead doggedly pursued a piecemeal approach to constitutional reform. This is an approach aimed to ensure that the constitution is shamelessly corrupted to support the political objectives of the ruling elite at the expense of the people,” he says.
Joseph James, LSZ president, in a seperate statement said lawyers had, for the first time, taken a stance against the new legislation.
“It is worse than Posa and Aippa as the current legislation attacks the very basis of our constitution,” he says in reference to two controversial laws that limit freedoms of association and expression.
With the new law, government will be able to seize the passports of its critics. “This will take away the right of those people to go outside the country and ask other countries to impose sanctions on Zimbabwe,” said Chinamasa, who is among 200 of Mugabe’s cronies slapped with an EU travel ban.
Chinamasa says amendments to the Land Acquisition Act will stop evicted white farmers from frustrating land redistribution to black Zimbabweans. “It will close the chapter of colonisation,” Chinamasa said during a stormy debate before the vote on Tuesday.
Lovemore Madhuku, chairman of the National Constitutional Assembly which mobilised opposition to Mugabe’s attempt in 2000 to entrench his rule indefinitely, said the amendments add to a host of repressive measures already imposed by Mugabe’s 25-year-old regime. “But in time, it will eventually collapse,” he said. “Do you think the people are going to accommodate this for all time?”