By Pedzisai Ruhanya
THE doctrine of constitutionalism entails among other things institutions of government and the allocation of power to these state institutions. Crit
ically constitutions seek to control, govern or restrain the exercise of power by democratically established institutions. The doctrine of constitutionalism therefore rests on restraining governments in their exercise of power over those that they govern.
A critical analysis of the political context of Zimbabwe since the Constitutional Referendum loss in February 2000, the farm invasions and the lawlessness associated with it, as well as the subsequent disputed elections in 2000, 2002, 2005 and the circus in the local government system administered by Ignatious Chombo, with the connivance of Zanu PF and therefore the executive arm of the government, are matters urgent enough to call for a thorough and broad-based constitutional reform process in the country.
Beyond the urgent need for a democratic constitutional framework, Zimbabwe requires a regime change of its political culture in both the ruling Zanu PF and resistance movements such as the two factions of the Movement for Democratic Change (MDC) as well as civil society organisations.
A combination of the above issues has created the current political and economic crisis that Zimbabwe will remain trapped in until it extricates itself through a democratically established supreme law of the land that will lay the foundation of a democratic society founded on law and order and not on the rule of the “dear leader” as is the situation in the country.
Scholars who study institutions have concerned themselves with the problem of ensuring that the exercise of power by government officials, which is essential to the realisation of societal values, should be controlled so that it should not be destructive of the values it was intended to promote. It is in this light that most modern constitutional debates have always linked the idea of constitutionalism with the use and abuse of power both in theory and in practice. From a historical perspective, it has been argued that the concept of constitutionalism has been a reaction against the concentration of power that accompanied the consolidation of modern states, and in Africa it has to do with the post-colonial administration that sought to consolidate its power after independence, Zimbabwe included.
The need for constitutions to restrain the powers of the executive or the governing authority could be further understood from the creation of the United Nations Charter in 1945 and the Universal Declaration of Human Rights in 1948 which fundamentally were created to protect and promote the rights of both nations and individuals following the devastation caused by the Second World War where Adolf Hitler and his likes violated the human rights of those who opposed his authoritarian rule.
A new constitutional dispensation in Zimbabwe should seek to have executive restraint apart from having independent institutions such as the legislative and the judicial arms of the state. Zimbabwe currently has an imperial executive arm with sweeping powers and accountable to itself. The head of state, the executive president, is answerable to himself and there are no constitutional safeguards to control the abuses associated with that office. This scenario has led to other arms of the state to be appendages to the executive to the extent that the president indirectly runs the judiciary by using his proxies to appoint judges to the bench. The result is that the country’s judiciary, especially the High Court and Supreme Court, are now packed with political appointees with no capacity to make independent rulings against the executive arm of the state.
The independence of the judiciary especially at the level of the Supreme Court should be seen by making robust judgements against the powerful in society especially the government. If the judiciary fails to make such judgements in a troubled country such as Zimbabwe, then that judiciary cannot be regarded as independent.
Since the Constitutional Referendum fiasco in 2000, the farm invasions and the violence associated with the elections in 2000, 2002 and 2005 and the current state-sponsored violence against people demonstrating for constitutional reform and other issues such as the sky-rocketing cost of education and poor remuneration in the country, it has become even more clear that dialogue based on a new constitutional order is the way forward out of the crisis in the country. The electoral disputes and the institutions put in place to administer the elections have been exposed for lacking constitutional independence to run their own affairs without interference from the incumbent government of Zanu PF. As a result, processes administered by the Registrar-General, the Zimbabwe Electoral Commission (ZEC), all run by the government, would not in the eyes of Zimbabweans produce legitimate electoral processes and outcomes. The only way is to create independent electoral institutions that are not administered by civil servants and serving or former soldiers in order to have a democratic electoral process and outcome. So far, Zanu PF has refused and cheats itself by saying these institutions packed by its supporters are impartial.
It is a circus of greatest proportions to posit that ZEC under Justice George Chiweshe, the war veteran and former soldier, is independent. Assuming that ZEC was independent, then the question to ask is why is it silent about the failure to hold elections in Harare to choose the local authority’s leadership? The situation becomes sad when Chombo through Zanu PF is allowed to fire elected officials and appoint Zanu PF people as commissioners while refusing to hold elections. Recently Zimbabweans witnessed Zanu PF’s Harare province passing a vote of no confidence in Sekesai Makwavarara, a clear indication that commissioners are serving the interests of Zanu PF. Having lost the elections and fearing to lose again, Zanu PF refuses to have elections in Harare and administers the affairs of the capital through the back door.
It is therefore imperative to have a democratic constitution that clearly outlines the role of the executive in local government in order to deal with the chaos currently prevailing in Zimbabwe and benefiting losers such as Zanu PF.
In order to have a constitution in both theory and practice, Zimbabweans starting with Zanu PF need to change their political culture so that it entails the ethos of democratic governance. Critically Zanu PF needs to dismantle its infrastructure of violence such as the Border Gezi militias and de-militarise state institutions and that the repressive state institutions such as the army, the police and the Central Intelligence Organisation (CIO) should not be involved in party political matters. There should be a culture of political tolerance and Zanu PF needs
to cultivate that among its supporters.
Zanu PF followers should know that it is lawful to differ on political grounds and legitimate to disobey, criticise or demonstrate against a government failing to deliver on its electoral promises or against state-sponsored violence. They should be told about the sacrosanct nature of the constitution and other legitimate and democratic laws of the state but not the Public Order and Security Act and the Access to Information and Protection of Privacy Act. These should be lawfully defied.
Political culture is important because without it, even the best of constitutions will not work. For instance for the past six years, Zanu PF violated even that bad constitution that it has amended 17 times. It has violated property rights enshrined in the constitution. It went further to violate other rights such as the right to freedom of expression, banning newspapers such as the Daily News and the Tribune. Zanu PF went further to violate its own constitution when in November 2004 its politburo amended its constitution outside its congress and without the authority of its central committee in its bid to elevate Vice-President Joice Mujuru to the second vice-president of the party. This is the political culture that needs to be changed because it becomes difficult for Zanu PF to respect the national constitution when it disrespects its own.
In my view it’s the duty of all political players and civic society organisations to make sure that Zimbabweans understand that for a constitution to have meaning, it must have people who respect it. This calls for national programmes of education in schools, churches and communities on political tolerance.
This brings me to the current dispute in the MDC where the two factions are accusing each other of violence. It is a shame that such a huge democratic resistance organisation finds itself in such a situation. MDC leaders should occupy the moral high ground and condemn violence and other illegitimate political practices by its members. However, in accusing each other of violence the two factions should understand the divisive nature of Zanu PF. They should work together to identify the source of the violence and if it is not inspired by Zanu PF then they should deal with it thoroughly.
The attack against Trudy Stevenson in Harare and that of Temba Sibanda who lost his eye in Bulawayo are the worst things to happen in a party fighting a regime that has “degrees in violence”. Both Stevenson and Sibanda have the right to differ with anyone and carry out their political activities without fear. This is the freedom that most Zimbabweans want to reclaim from Zanu PF, otherwise the new constitution and the new Zimbabwe we want will be doomed if people emulate Zanu PF’s medieval political tactics.
* Ruhanya studies at the University of Essex in the UK.