BY SHARON HOFISI
Many people in Zimbabwe want a career in law. But many of those reading the constitution or developments associated with it, such as controversial amendments, conveniently blame lawyers when the constitution appears to have been shredded.
It is this approach which has created variegated opinions on the effects of Zimbabwe’s Constitutional Amendment Bill No.2.
In all this, the demand for lawyers and legal drafters is celebrated. It seems no one is thinking about how politicians, lawyers, drafters and advisors of the politically-driven constitutional process that led to the adoption of the 2013 Constitution retained the provisions of the Kariba Draft. I can even go back to the Old Constitution where the problematic provisions that restrict Parliament’s role to at least two-thirds affirmative vote were there in 1990.
Such an approach helps us to avoid making some dubiously pedantic conclusions around the procedures or politics of constitutional amendments in Zimbabwe. As a result, the hot porridge approach is used here to demonstrate how all those who were involved in the constitution-making process should not ignore the fundamental provisions they smuggled in or allowed to be smuggled into the 2013 Constitution.
And because most lawyers shy away from the politics of interpretation or analysing legal developments, I have decided to present arguments in this article as a seriatim, meaning, one by one, in some order.
For years, I have taught law courses to students of political science, public administration and international relations. I have come to realise the need for a seismic shift in legal instruction both when teaching lawyers or non-lawyers. I praise those who teach the sociology of law in their law school curricula. It is about time we also teach and understand the politics and sociology of law in Zimbabwe. This should not be confused with the law of politics, as there seems to be none.
I have had occasion to read through some courses that used to be taught in the Faculty of Law between 2001 and 2003. The University of Zimbabwe regulations, for instance, showed at that time that students were supposed to be taught Constitutional History and Law.
There were supposed to be some courses such as Socialist Law and Legal Systems. At Masters’ level, the student had to take courses that include the political economy of the legal order, the theory and history in legislation and legislation drafting.
Such courses I strongly believe enriched the capacity of lawyers to think outside legalistic terms. No wonder some jurisdictions allow their undergraduates to get a juris doctorate or some qualification similar to our honors degree in laws (LLBs). Some universities allow students to major in law and take other subjects as minors and vice-versa. The goal is to produce all-rounders who know the politics of laws in various fields of study or operation.
I am sure those students who are currently doing substantive law as a degree but have degrees from other fields of study such as political science, public administration or some experience from state and private institutions will easily understand the point I am raising. They can easily understand why their first degree matters a lot in helping them to easily comprehend many legal issues around their world of work.
I may buttress my point with some observations that I made some few years into my law school days. Students who were fresh from high school were very good at writing narrative essays. But those who had some work experience as magistrates and prosecutors were very good at problem-type questions.
They could apply case law to hypothetical situations and score very good marks in case analysis with ease. In all that, I learnt that lawyers need institutional, emotional and political intelligence. This is why the legal adage says “good lawyers know the law, better lawyers pass the law, but the best lawyers know the judge”. Put differently, lawyers should think beyond their professional training.
And now on constitutional amendments in Zimbabwe, a lot shows why everyone, lawyers included, appears to be taking a morning-after approach to resolving problems that shape Zimbabwe’s democratic development and constitutionalism.
In Zimbabwe’s first ceasefire charter, the Lancaster House Constitution, no objections were raised to the constitutional provisions that spoke to political compromises, building the legacy of compromised constitutionalism.
The government under the late former president Robert Mugabe then benefitted from the negotiated or suffocated constitutional work that’s been done in the name of political compromises.
The 19 amendments to the Lancaster House Constitution became tools to promote political benefaction and not to improve the Constitution as a living document.
Imagine if the National Constitution Assembly (NCA) and the opposition had agreed to the Chidyausiku Constitutional Draft which had the same amendment provisions, but had beautiful provisions on limiting the terms of the President. It would mean Robert Mugabe would have left power at most in 2008.
In the build-up to a homegrown constitution, even the NCA and the Chidyausiku Commission produced some constitutional drafts with a lot of similar provisions. Alas, those constitutional moments were ignored.
The NCA’s proposed draft made under the instructions of a wide spectrum of stakeholders, who include thousands of individual Zimbabweans in the NCA, churches and other religious groups, trade unions, women’s organisations, youth groups, student movements, human rights organisations, media groups, political parties and Members of Parliament was ignored.
While the Constitutional Commission Draft had provisions similar to the current section 328 which provided for two-thirds affirmative votes for both Houses of Parliament at the final vote on the Bill, section 174 of the NCA Draft Constitution was framed differently.
It was clear that proposed amendments to any constitutional provisions of Chapters 1-6 (including bill of rights, parliament and executive) and Chapter 15 (constitutional amendment and transitional provisions) had to be put into a referendum and a majority of voters was required to support such an amendment.
The other amendments, including matters relating to judges, required at least three-quarters of the membership of each chamber further under the NCA Draft.
This was over and above the giving of 30 days’ notice of such proposed amendment to the members. The active participation and relevance of the generality of citizens was guaranteed.
Fast-track to 2007, the Kariba Draft Constitution which was rejected as a product of the political compromises between Zanu PF and MDC formations had a section s 139 (4), which provided that a constitutional bill would be regarded as passed by Parliament if at the final vote on the Bill in each House of Parliament it receives the affirmative votes of at least two-thirds of the total membership of the House.
This same provision was a repetition, word for word, of section 52 (2a) of the 1980 Lancaster House Constitution. Sub-section 2a of the Old Constitution was inserted by section 17 of Act 31 of 1989 and as amended by section 6 of Act 15 of 1990. It also retained the same grains of the rejected Chidyausiku draft.
Any current heated rhetoric from lawyers and politicians who participated in the processes above seems disingenuous. Such rhetoric creates the impression that lawyers and politicians have their eyes on a quiet audience.
I do not think such an audience exists-despite lack of candid responses from non-lawyers or non-politicians. But the risk of a hot-porridge approach is felt by all who have watched the responses of babies when they are being fed.
It is an oat-milk exercise, nothing much. The mothers try to spread the porridge to the edges of a plate, making it a bit cooler. But without warning, the mother or caregiver’s spoon quickly picks the parts with the hot-porridge. An ear-piercing cry comes from the child.
This is what the drafters, party advisers and those who voted “Yes” to the adoption of the current Constitution did. So far, section 328 (5) of the Constitution of Zimbabwe, 2013, is a replica of provisions in the Old Constitution, as well as the Chidyausiku and Kariba Drafts.
The point is clear: the current section 328 (5) was overlooked by state and non-state actors, including civil society organisations or citizen’s voices. Nothing was done to insert a boiler-plate provision that would have standardised the procedure relating to Constitutional Bills at every reading stage.
No wonder why Zanu PF and some MDC parliamentarians have easily found some trade-ins on running mates, issues relating to judges or the extension of the proportional representation seats on women, albeit with some 10% to young women parliamentarians below 35 years of age.
In all this, we just took our constitutional making process as some hot meal. For some like us who are transdisciplinary, section 328 (5) epitomises the zenith of a quiescent citizenry which could not object to political compromises and political party collusion in a constitutional democracy.
Hofisi is a transformative transitional justice practitioner, normative influencer and disruptive thinker