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Zimbabwe Briefing - Issue 111
Crisis in Zimbabwe Coalition (SA Regional Office)
May 30, 2013

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New Constitution: What next after being signed into law?

The procedure for amending the Zimbabwe constitution is generally common to everyone who has cared following the general legislative procedure of the parliament of Zimbabwe. So far we have had 19 Amendments to the current constitution. The Bill introducing the final draft to parliament was the 20th amendment, refered to as Constitution of Zimbabwe Amendment (No. 20) Bill.

Just like the solar eclipse, repealing a constitution in its entirety is generally a once in a lifetime process, if ever a lifetime is enough. In some countries generations pass without witnessing the writing of a new constitution. In itself, a constitution is generally meant to live for generations and generations but still resonate with the aspirations and dictates of the time.

After the failed Chidyausiku Constitutional Commission proposal of 2000, finally, 13 years on, Zimbabweans witnessed the adoption and enactment into law of a new set of rules for the country. It might take a long while before this process can be repeated again. It is a historical moment we have been blessed to witness.

In the midst of the historical milestone and the jubilation it brings, a few issues came up. Most importantly, Zimbabweans themselves do not have adequate information on the process of enacting a new constitution. Particularly, very few know when and how the new constitution will become law. For the benefit of the ordinary man, I make a brief account of the constitutional process on how and when the new constitution will come into effect.

We must recall that the constitutional reform process was a creature Article VI of the Global Political Agreement. It is important to make it clear at this stage that the GPA is part of the constitution through amendment number 19 and that the provisions of the GPA as enshrined in the current constitution shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in the current Constitution. However for the purpose of this exposition, it is much easier to refer to the GPA as if it’s not in the constitution and the current constitution as if it does not include the GPA.

The process for the new constitution is laid down in the GPA. However where the GPA does not make provision for a matter incidental to the constitutional process, the current constitution and the relevant legislation such as the Referendums Act, applies. Although the GPA lays down some other processes such as the outreach program and the stakeholders’ conferences that you will not find in any of our laws, most of its provisions on the constitution including time frames slavishly follow the current law.

It is also important to mention that the constitution process as outlined in the GPA ends with the introduction of the new constitution to parliament after the Referendum. Whatever happens after that follows the legislative procedure in the current constitution.

Although the process followed in the constitution making process is provided by law, it is of utmost importance to note that politics had a very bigger role to play. It is in fact the political factor, which shrouds the legal process to an extent that an ordinary person on the street finds it difficult to get a good grasp of the true process and the time frames. Interestingly, a majority of the parliamentarians had no clue not only about the process but even the nature of their role in the legislative process. The provisions on the coming into force of the new constitution are in the new constitution itself. Although the new constitution is deemed to become law on the day it is published, that is also not accurate in this case. The constitution will come into force in effectively three stages. There are provisions that come into force on the publication day, those that come into force on the effective date and transitional provisions suspended for a certain period.

Chapter 3 relating to citizenship; Chapter 4 being the declaration of rights; Chapter 5 relating to the election and assumption of office of the President; Chapter 6 relating to the election of Members of parliament and the summoning of parliament of the general election; Chapter 7 relating to elections; Chapter 9 relating to principles of public administration and leadership; Section 208 relating to the conduct of members of the security services; Chapter 12 in so far as it relates to the Zimbabwe Electoral Commission; and Chapter 14 relating to provincial and local government come into operation on the publication day. This is the first phase and by Law came into effect on 22 May 2013 when the President ascended to the draft supreme law. The coming into operation of these sections will effectively repeal the equivalent sections of the current constitution. After the publication day we will thus be having two constitutions albeit for different sections. The parts of the current constitution that are not repealed on the publication day will remain in force. The rest of the new constitution comes into force on the effective date except for certain provisions. The effective date is the date on which the president elected in the coming first elections under the new constitution assumes office. The current constitution will stand repealed in its entirety on the effective day.

The third phase involves provisions that are deferred for certain periods after the effective date. These are not many. Provisions such as those relating to running mates and the composition of the constitutional court only come into effect ten years after the first election and seven years after the effective date, respectively.

Perhaps it is important to conclude by saying; the new constitution will begin to take effect in the next two weeks - all things being equal. Elections, which are everyone’s concern, will be held under the new constitution. Although the effective date is only the day when the winning president takes office, the sections of the constitution necessary for the holding of elections come into force on the publication day which can be anytime from the day when the new constitution is signed by the President, approximately in the next few days.

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