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Constitutionality versus constitutionalism: Lessons for Zimbabwe's constitutional reform process
Dr Alex T. Magaisa, OSISA
June 30, 2011

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http://www.osisa.org/openspace/zimbabwe/constitutionality-versus-constitutionalism

Having inherited a constitution negotiated between the colonial and liberation forces at the dawn of independence (the Lancaster House Constitution) in 1979 and having amended that constitution 19 times in the last 30 years, Zimbabwe is trying for the second time in just over a decade to completely overhaul its constitution. The first attempt to create a new constitution failed when voters at the referendum rejected the proposed constitution in February 2000. The major grievance was in regards to the process of making the new constitution, which civil society groups criticised as dominated by, and intended to advance, government interests. The current process, which is led by a Parliamentary Committee (Copac), is part of the agreed package of reforms in the Global Political Agreement (GPA) that should culminate in a referendum in 2011.

Experience since independence has demonstrated the government's pre-occupation with the constitution as a means of legitimising its power and less as a mechanism for limiting such powers. A number of the 19 amendments have served to reverse the effect of decisions made by the courts of law and some have even ousted the jurisdiction of the courts leading effectively to the concentration of power within the executive branch of government. The government appears to have been interested only in legality/constitutionality and paid scant regard to constitutionalism by which principles governmental power must be limited.

This article demonstrates the dearth of constitutionalism by analysing some court decisions and constitutional amendments that have effectively eroded the limits on governmental power. This article also warns that a narrow focus on constitutionality can mean that instead of the constitution being the supreme legal document controlling the exercise of state power, it simply becomes an instrument for autocratic control, legitimising rather than preventing arbitrary power the very antithesis of constitutionalism. This article demonstrates that constitutionality is not enough and that to promote democracy, it is necessary to implement the principle of constitutionalism. The article draws heavily on Zimbabwe's recent constitutional history to illustrate short-comings in regards to constitutionalism. It will argue that through the colonial period and most of the post-independence era there has been an erroneous focus by successive governments on mere constitutionality (or simple legality) at the expense of constitutionalism.

Overall, this article advocates a serious re-evaluation of the collective attitude and approach towards the constitution; that in making it, concern is not only in defining what is constitutional but also in ensuring that those constitutional clauses conform to and advance the principles and values that underpin constitutionalism. The hope is that as Zimbabwe undertakes the drafting of a new constitution, those tasked with drawing up the draft can learn some lessons about the critical elements that are necessary for this purpose.

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