BY SHARON HOFISI
As the publicity over the constitutional amendment No. 2 Act has shown, government actions are increasingly becoming constrained by litigants who simply and strategically use constitutional cases that help explain the doctrine of essential function of the constitution.
This doctrine establishes and regulates the relations and limitations on the relations between or among state institutions.
Decisions about the meaning and fundamentality of the constitution’s provisions are usually enmeshed in constitutional values such as those spelt out in sections 3 (founding values), 46 (interpretation of Bill of Rights and constitutional provisions on constitutional amendments), 194-5 (public administration) and 298-300 (public finance management) of Zimbabwe’s 2013 Constitution.
Such values effectively prevent the weaponisation of constitutional provisions by state functionaries or any section of our constitutional society. And courts of law in particular are frequently called to interpret new regimes concerning constitutional transition and culture.
By and large, constitutional transitions which are more partisan and highly one-sided: such as when the state’s ruling party controls the transition and its top priority is the consolidation of political party or regime interests; Parliament should defer to the judgment of courts.
Judges should then interpret the legislation that bears on constitutional change so that the same Parliament which controls the constitutional legislation from the perspective of a dominant political party or status quo regime is not given a second bite of the cherry to re-consolidate its interests.
In contrast, where a society shuns constitutional democracy, is paternalistic and authoritarian, judges’ powers to interfere with Parliamentary legislation are normally limited.
Zimbabwe adopted a progressive and justiciable Constitution in 2013 that was predominantly concerned with making sure that seating judges do not benefit from amendment to term limits.
In other words, the 2013 Constitution asks judges of superior courts to restrictively interpret constitutional amendments that seek to reverse the position in the 2013 Constitution.
The restrictive doctrine was used in Kika v Minister of Justice and Others to force the legislature as represented by Parliament and the President to respect the constitution.
In all this, getting it wrong when deciding constitutional cases could prove to be very costly for constitutional stability. This is why the question of tenure and extension of age of a seating judge must be properly canvassed.
To make sure Zimbabwe is not lost in constitutional transition and does not engage in litigious constitutional behaviour, litigants in constitutional cases should also innovate on the choice of court and quality of legal arguments they raise when imploring the courts to adopt certain positions.
This is because the constitution has been considered by fine intellectuals like professor Aharon Barak as a legal text that sits at the top of the normative pyramid and shapes the character of society and its aspirations throughout history. This cannot be bettered when it comes to Zimbabwe’s history of constitutionalism.
Barak also monumentally advances the point that a constitution establishes the nation’s basic political points of view; and lays the foundation of social values, setting goals, obligations, and trends that guide human behaviour and manage political behaviour.
From this view, parliamentarians as extensions of political parties or independent appointments by the electorate are obligated by section 67 of the Constitution to enjoy their political rights including through representing their political parties in amending constitutional legislation.
They must however do so in ways that do not violate constitutional principles or provisions. This is because the constitution must not be interpreted in ways that shape the future of a society through wrongly decided decisions. Because the constitution is at once philosophy, politics, sociology and law, judges must be prepared to collectively say, “we are right” when they make their judgments.
As the Constitution of Zimbabwe and its jurisprudence are not yet mature, courts must not make their decisions complex or be decided based on preliminary points.
This is where I also find the Kika judgment to be important as it was decided on the merits, something which the Constitutional Court does not normally do due to the invocation of the avoidance doctrine. I believe the newly appointed Constitutional Court judges will end the court’s flirtation with the avoidance doctrine and its variants and begin to decide constitutional cases on the merits.
This is because the Constitutional Court has the power to authoritatively determine constitutional rights and constitutional provisions are understood and applied in our country.
This is not to underestimate the fact that decisions of the High Court and Supreme Court also bear significantly on what constitutional jurisprudence means in Zimbabwe. How, then, can we make sure that Zimbabwe is not lost in constitutional transition, or by parity of reasoning, new approaches to constitutional interpretation of new constitutional regimes or provisions?
The best way is to commit ourselves to the need to interpret the constitution as an extraordinary statute. The other way is to ensure that litigants and the courts consider in nuanced fashion the different principles and doctrines that bear on constitutional legislation, whether entrenched, justiciable or non-justiciable.
We can then be prepared to embrace the simple truth that political cultures or constitutional cultures are part of the normative-politics or the psycho-constitutional feelings and actions at the citizen’s level. This helps the generality of Zimbabwean citizens to consider the good governance principles in our constitution to be either negotiable or non-negotiable.
Let us not forget that constitutional culture dines with other offshoots of Zimbabweanised cultures such as political, economic and social cultures.
We demand good governance which in thinly veiled fashion speaks to good political, constitutional, social, ideological and economic cultures.
Regrettably, there is little research on how mass political behaviour (epitomised by the concept of “chaunga” or comfort in numbers) impacts on constitutional culture in Zimbabwe. Such research would significantly balance the theory or narrative thinking with empiricism.
I believe the Kika judgment and the other judgments that could be made on the Constitution of Zimbabwe will properly emboss correlational and meta-analytic researches on how political concepts such as civil society, democratisation, state-society relations, judicial independence, and good governance relate to Zimbabwe’s constitutional democracy.
I believe academia can play an iconic role in building models that balance between political culture theory and constitutional culture theory in Zimbabwe.
This will be critical in ensuring that lawyers, economists, and political analysts who have dominated the constitutional scene are oriented on the three pillars of political action which are cognitive, evaluative and affective.
The cognitive aspect helps in shaping conversations on constitutional culture through use of various knowledge bases to interpret political events and actions, including perceptions that ordinary people have about politics.
This will help ordinary people for instance in knowing the role that political players who are elected in parliament have in changing the constitution; and how political parties may use their ideological or party interests to make constitutional changes appear like they are political events.
In a society that is not immune from fake news, misinformation, blame-shifting, disinformation and mal-information, there is a need to ensure that political and constitutional information in Zimbabwe reaches the masses through credible sources.
This will go a long way in emancipating and empowering Zimbabweans to evaluate, logically praise or condemn political or constitutional performance that works to the detriment of the Zimbabwean society.
This also feeds into the affective pillar by ensuring that understanding of political or constitutional action is done from the perspective of emotional intelligence. The beauty of orienting the society on political action is that Zimbabwe will not be lost in constitutional moments that threaten constitutional stability.
Readers of Zimbabwe’s history, traditional political culture, colonial constitutionalised culture, and post-independence constitutional moments perhaps can use constitutional transitions in 1923, 1961, 1965, 1979/80 and 2013, to explain how the constitutional transition in 2021 shines a light on constitutional stability.
It is my fervent hope that the current litigation around mandatory constitutional provisions that relate to constitutional amendments will provide normative insights on how we want to have other similarly framed constitutional provisions to be interpreted. Much of modern Zimbabwe’s constitutionalism is closely related to litigation on non-negotiable tenets of the Constitution.
The very nature of Zimbabwe’s constitutional fabric must steer unity, fundamental social cohesion, and democratic political development. As a result, the judgments of the Constitutional Court that called Parliament to order and the High Court that spoke to the need to respect seemingly “non-targeting-but-amendable” constitutional provisions, as well as the strategic impact litigation from civil society evoke a series of political gains, entailing constitutional changes which are of a normative nature.
The present constitutional system, therefore, reflects a complex admixture of Orwellianism, limitations on democratic participation, constitutional restraints on party autocracy and political excesses, interparty compromises, and many transitional provisions.
That the resulting arrangement, built upon the debris of political compromises and the bricks of mediated-cum-facilitated resolution of a mediated crisis, should create judicial activism is understandable.
Equally, that the constitutional system in Zimbabwe should become as stable and non-discriminatory as it has been shaped through constitution-making, ratification and strategic litigation, is indeed emboldening.
Hofisi is a transformative transitional justice practitioner, normative influencer and disruptive thinker