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Ours is a Rotten Constitution

IN his essay entitled “Some comrades are more equal than others”, the late political science professor, Masipula Sithole, attributed Zimbabwe’s problems to the forgetful political class.

He also made reference to the fact that most people in our country were having it rough, they were hurting; they felt cheated over what he termed the “Independence dividend”. Constitution Amendment No 7 passed in 1987 shows us the extent to which we can rightly say ours is a rotten constitution.

One key provision of the Constitution Amendment No 7 Act in Zimbabwe is the creation of the position of executive president. The creation of the position of executive president led to the combination of the ceremonial role of the old president with the executive functions of the prime minister. Such a move dealt democracy a lethal blow in Zimbabwe. This is so largely because it turned Robert Mugabe into an unquestionable dictator by virtue of his being above all other people in Zimbabwe.
Being above all other people means that one can also be above the law and this hinders the development of democracy in the country.
Who in his right mind then can deny the fact that the creation of the position of executive president gave Mugabe excessive powers which turned him into a tyrant interested only in his own good and wielding power for the sake of satisfying his ego. This makes sense especially when considering the fact that no other person has ruled Zimbabwe since Independence in 1980.
Noteworthy also and germane to this discussion is the fact that Constitution Amendment No 7 empowers the president to veto any Bill presented by members of parliament as it pleases him. Such power works against the development of democracy in Zimbabwe.
The president can accept a Bill that has serious negative implications for citizens just because of selfishness. This is true when looking at the draconian laws that were pushed through in parliament.
The Public Order and Security Bill is one such bill that was signed into law yet it severely curtails the citizen’s right to assembly, association, expression and movement.
The Access to Information and Protection of Privacy Bill also signed into law is anathema to freedom of expression and media freedom. Surprisingly, the two Acts are unjustified in a democratic society but because Mugabe wanted to maintain his grip on power, he signed them into law. This also means that any proposals that threaten Mugabe’s power will be pushed aside and this is not good for democratic development in Zimbabwe.
Constitution Amendment No 7 also provides for the prerogative of mercy. The incumbent president has excessive powers from this amendment to ensure that convicted members of his party do not serve prison sentences.
This encourages contempt and disregard for the rule of law, especially by members of the ruling party. Several Zanu PF supporters, the police, soldiers, war veterans and youth militia responsible for political violence in the elections of 1990, 2000 and 2002 were pardoned.
Corrupt government officials such as those involved in the “Willowgate scandal’” were also pardoned. The question we should grapple with is: Will such acts of mercy be extended to members of the opposition? The answer is no. If the answer is no then prospects for democratic development in Zimbabwe remain uncertain at best and gloomy at worst.
Finally, Constitution Amendment No 7 provides for presidential immunity. This means that as long as he remains in office Mugabe shall not be charged with a criminal offence nor shall he be sued in any court of law. This places the president above the law and this contradicts Article 7 of the Universal Declaration of Human Rights which says that: “All are equal before the law and are entitled without any discrimination to equal protection of the law”.
This threatens democracy and its development in Zimbabwe. When some people are more equal than others it becomes difficult for any country to enjoy social equality, parity, fairness, equal opportunity, impartiality and egalitarianism and because of this it can be established beyond any reasonable doubt that key provisions of the Constitution Amendment No 7 are antithetical and incompatible with democratic development in Zimbabwe.
On the whole, it can be concluded that the aforesaid provisions are the five key provisions of the Constitution Amendment No 7 which have dealt a smooth trajectory from authoritarianism to democracy a lethal blow.

Mutsa Murenje,
Nairobi, Kenya.

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