Next week Zimbabweans will gather for the Second All-Stakeholders Conference on the new constitution. Report by Alex Magaisa, Constitutional law expert
It is an important event that hopefully will be used productively by all participants. There are compelling reasons why the new constitution must provide a solid foundation for limited government, a government subject to adequate checks and balances.
My role in the current process is not a secret. I sat in Copac as a technical adviser to the MDC-T. I have therefore made my contributions and observed the process at close quarters. The views I present here are, however, my own.
At least I will not write under some shadowy name or from behind a cover pretending to be a neutral critic of the process and the content of the constitution. I take my share of responsibility collectively held by all those who worked on the Copac draft.
There is an erroneous view held in some quarters that limited government is the equivalent of weak government. This is incorrect. Rather, limited government is synonymous with accountable government.
The defining feature of government in its relationship with the governed is power, more precisely the power that it holds over the territory and the people residing in that territory.
The general understanding is the relationship between government and the people is a “social contract” whereby people form government and confer upon it certain powers which it exercises on their behalf. The people do not give up their powers entirely. They expect government to use the power responsibly and within limits.
This relationship can be based on trust; on the faith that those who are given power to govern will use it responsibly. Nevertheless, experience demonstrates the naivety of relying on trust alone. As we learn from Lord Acton’s timeless dictum, “power corrupts and absolute power corrupts absolutely”.
The import of this oft-repeated cliché is that power has a corruptive effect on humankind and even those that start with the best intentions can end up doing the wrong things, having succumbed to the corruptive effect of power.
The founding fathers of the United States constitution, one of the world’s most enduring constitutions, recognised the challenge of government more than 200 years ago and in this regard, James Madison wrote at the time:
“In framing government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on government but experience has taught mankind the necessity of auxiliary precautions.” (The Federalist No. 51)
From this we observe a number of critical points:
First, the necessity of government and its ability to have control over the people is recognised;
Second, the importance of controlling government is recognised and that it must be obliged to have self-control;
Third, the fact that people are the primary means of controlling government is recognised;
Fourth there is recognition that reliance on the people is not enough and fifth, the necessity of “auxiliary precautions” to control government is recognised.
In short, since government cannot be fully trusted with power and while people are the primary controllers of government, there is need for other “auxiliary” mechanisms to keep the power of government in check. These “auxiliary” mechanisms are the checks and balances that are contained in a constitution, this being the physical representation of the social contract between the government and the people.
It is these checks and balances on governmental power that constitute the essence of constitutionalism or limited government. They represent a set of calls not for a weak government but for a government that is accountable to the people.
Here is a misleading and erroneous view that the constitution is being made in the image of and for specific individuals. Therefore, when otherwise legitimate checks and balances are proposed, they are viewed by Zanu PF supporters as an attack on President Robert Mugabe, who has occupied the president’s office since 1987.
In attempts to create a wedge between the MDC-T leader and his colleagues, the limitations on presidential power are presented as an attempt to curb Prime Minister Morgan Tsvangirai.
This attempt to create the constitutional office in the image of existing individuals is an exercise in mischief. Neither Mugabe nor Tsvangirai are destined to be president for eternity. It would be wrong therefore to make a constitution to suit an individual leader’s purposes.
The individual has to fit within the parameters of the constitution rather than having the constitution having to fit into the parameters that fit the individual’s preferences.
Tsvangirai understands this very well. He knows the risks of granting unlimited power to one office and appreciates the importance of checks and balances in a constitution.
That is why together with his party, they embraced the Copac draft constitution at the earliest possible opportunity, appreciating its limitations but nevertheless recognising that it represents a step forward in the democratisation of the Zimbabwean body politic.
There are cheap attempts to make Tsvangirai appear as if he is a victim of some nefarious machinations from within his own party to create the impression that limitations on presidential powers are designed to weaken him. These are puerile efforts designed to use the old and tired “divide and rule” politics within the party.
They are made in the belief that Tsvangirai can be bought off and that somehow a wedge can be drawn between him and his lieutenants whom he delegated to work on the constitution.
Limitations on government include ensuring that the other two arms of the state – parliament and the judiciary are independent of the executive. They include provisions that ensure that whenever the president makes appointments to key public offices, he or she consults other relevant authorities and that he or she acts upon the recommendations and advice given by those authorities.
Sometimes, the control mechanism is that appointments require approval by another authority. The importance of this consultative process is to ensure the president’s discretion is not unfettered.
Limitations also include provisions that place maximum limitations on terms of office. The principle of maximum term limits is a response to the risks that arise when a person stays in one office for too long. It applies to but is not limited to the office of the president.
Likewise the power of parliament to amend the constitution is subject to serious checks and balances, which in some cases include the requirement for approval by the public through a referendum.
The sum total of these various limitations, controls and constraints on governmental power is what is referred to as limited government or constitutionalism. But some misrepresent this as advocating for weak government; for a weak presidency and other descriptions which suggest weakness on the part of government.
Nothing can be further from the truth. These are simply mechanisms to ensure governmental power is used responsibly and they are included in a constitution because it is the physical form of the “social contract” between the government and the people.
Finally, to appreciate fully the importance of constitutional checks and balances on governmental power regardless of one’s political party affiliation, I often implore people to imagine the highest office being occupied by their worst possible enemy.
Would you be comfortable if that person had at his disposal unlimited power to do as he or she pleases? Would you be safe knowing that such a person can appoint any person he wants as a judge or as the head of the body that conducts and supervises elections?
Would you be happy that such a person can unilaterally make virtually any constitutional appointment? Would you be comfortable if he or she had the power to take your property without the prospect of bringing a legal challenge in an impartial court?
These are the some of the critical questions that inform my approach to this debate. The Copac draft constitution is by no means a perfect document but it is better by miles compared to the current, much-amended Lancaster House constitution.
Dr Magaisa is based at Kent Law School, University of Kent.