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This article participates on the following special index pages:
New Constitution-making process - Index of articles
versus constitutionalism: Lessons for Zimbabwe's constitutional
Dr Alex T. Magaisa, OSISA
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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
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.
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.
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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