AS the process to craft a new constitution for Zimbabwe rumbles on, there is need to pause a minute and look at the constitutionality of a constitution.
This process, called constitutionalism, must run parallel to the formulation of the supreme law in the land if as a country we are to heal the scars of the past.
According to Wikipedia, constitutionalism is the limitation of government by law, as prescribed by a constitution. Constitutionalism implies also a balance between the power of the government on the one hand and the rights of individuals on the other.
These fundamental principles and values â€“â€“ by which we expect the nation to be governed â€“â€“ include fairness, justice, equality, separation of powers, due process of law, supremacy of the constitution, and many more.
Do we have any guarantees that these will be respected when the new constitution comes into being? Has there been a change of mindset in the powers that be, or in those that believe they have the inalienable right to lord it over us?
Constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law.
Do we have a paradigm shift â€“â€“ running parallel to the constitution-making process â€“â€“ in the minds of the military brass, senior government officials, civil servants, political party officials, chiefs, headmen, the judiciary, the police, the intelligence services, relatives of the high and mighty, friends with connections in high places, business leaders who feast at the tables of power, â€œNicodemussedâ€ church pastors who preach against violence by day but fire the flames of the same by night, national youth service militia; the list goes on.
Constitutionalism is the political and social practices that make a constitution an institution rather than a paper parchment.
The absence of respect for the constitution and constitutionalism was aptly demonstrated when Local Government minister Dr Ignatious Chombo directed the Harare City Council to ignore a Supreme Court order for the re-instatement of two employees, Engineer Christopher Zvobgo and Misheck Mubvumbi, who had been on suspension for the past nine years and six years, respectively.
I take my hat off to the local authority which, through the person of mayor Muchadeyi Masunda, said council would comply with the court order reinstating the two, in effect overriding the Chombo directive barring the reinstatement.
â€œWe cannot afford to be in contempt of court orders. Court orders are there not to be defied,â€ Masunda said.
Will we have a paradigm shift by the Chombos of this world that they will respect court orders, let alone implement them?
Will we have the police timeously investigating cases of political violence without showing favour for one political party over the other? Will the old order of detention without trial be rife and rampant, and the rights to life, personal liberty, and freedom of expression, association, assembly and movement no longer be badly hampered?
It is every stateâ€™s primary duty to protect its own population from grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made, as enshrined in the constitution. Will this be adhered to?
Will the army be restricted to the barracks and only let loose for the protection of the country and its citizens â€“â€“ and not to bash heads in support of one political party.
Will we see the judiciary fearlessly passing judgements that are legally considered to be in line with substantial justice?
That to me is the parallel process that we need to be inculcating in not only the political leadership, but right across the country.
We must disabuse ourselves of this delusion and pre-occupation that the crafting of a new constitution will pave the way for a free and fair election, something that has eluded us for a long time.
There is a crying need a paradigm shift that ensures that the tenets of the constitution will be upheld and respected by all and sundry.
â€œThe only honourable course for a citizen is to conduct his life as though the constitution, as originally understood, is in full force and effect, and if and when that brings him into conflict with public agents, to take a firm stance in opposition to their usurpations, regardless of consequences to himself, to them, or to others. Maintaining the Constitution, in every particular, is more important than human lives, even millions of them, if it should come to a choice. Individuals die. The constitution needs to live for as long as one human remains alive, and perhaps even beyond that.â€ â€” Jon Roland, 2003.
Thondhlana is editor-designate of the forthcoming NewsDay.
BY BARNABAS THONDHLANA