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Submissions to the Portfolio Committee on Justice, Legal and Parliamentary Affairs
Zimbabwe Lawyers For Human Rights (ZLHR)
August 04, 2005

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Introduction
The Constitution of Zimbabwe Amendment (No. 17) Bill, 2005 ("the Amendment Bill") was gazetted on 15 July 2005 and is intended to amend the Constitution of Zimbabwe in several respects. It is the view of Zimbabwe Lawyers for Human Rights (ZLHR) that the Bill raises serious concerns, and the Portfolio Committee on Justice, Legal and Parliamentary Affairs ("the Committee") should be encouraged to present an adverse report to Parliament, based on the analysis, conclusions and recommendations that appear below.

The principle of constitutionalism¹
In the most minimal terms a "constitution" consists of a set of rules or norms creating, structuring and defining the limits of, government power or authority. This requires not only that there are rules creating legislative, executive and judicial powers, but that these rules impose limits on those powers. The only time-tested manner of ensuring such limits is through a constitutional structure which ensures separation of powers, checks and balances, independent constitutional review by an independent Judiciary, and protection of individual rights. This, in essence, is the principle of constitutionalism.

Constitutionalism is a necessary foundation for the rule of law. Laws must exist to place meaningful constraints on government behaviour, and must allow for established procedures to be available, consistently implemented and enforced in order to prevent arbitrary action, which leads to a loss of authority in the eyes of the people who the government seeks to serve.

Constitutionalism does not weaken the government; to the contrary, it allows the government to be stronger and more stable, as it is seen as more responsible, more consistent, more predictable, more just, and more respected.

In turn, constitutionalism cannot exist without the rule of law. if laws are exclusively the results of the "sheer will" of the legislators, there can be no constitutionalism. For a constitutional structure of separation of powers, checks and balances and rights protection to exist, there must be some limits on what the legislators can do. This limit is imposed by the rule of law and implemented through an independent judiciary, the process of judicial review, and the notion that law is, at least in part, the product of independent legal reasoning by judges.

A further important feature of constitutionalism is that the rules imposing limits upon government power must be in some way be entrenched, either by law or by way of "constitutional convention". Those whose powers are constitutionally limited - i.e., the organs of government - must not be legally entitled to change or expunge those limits at their pleasure. Were a government entitled, at its pleasure, to change the very terms of its constitutional limitations, it is questionable whether there would, in reality, be any such limitations.

What is clear from the contents, intent and purposes of the Amendment Bill is that there has been a general failure to subscribe to this fundamental principle.

The Amendment Bill seeks to effectively remove the fundamental rights to property [section 16], secure protection of the law [section 18(1) and (9)] and freedom of movement [section 23] from the people of Zimbabwe who rely on the Constitution for protection against unchecked State action. As an organisation whose primary objective is to foster a culture of human rights in Zimbabwe and promote and protect human rights as enshrined in the Constitution of Zimbabwe and international and regional human rights instruments to which Zimbabwe is a State Party, ZLHR finds these implications in particular to be of great concern.

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