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Constitution
without Constitutionalism: Negating Constitutionalism in Zimbabwe
Dr Alex T. Magaisa
September 02, 2005
This week
the parliament of Zimbabwe passed Constitutional
Amendment (No. 17) which impacts significantly on property rights,
freedom of movement and introduces the Senate. The amendments and
the process used were controversial. Dr Magaisa wrote a critique
of the amendments when the Bill was tabled before parliament. Here
Dr Magaisa argues that the amendments demonstrate an unfortunate
obsession with the constitution while negating the idea of constitutionalism.
Instead of limiting powers, the constitution has become a tool to
validate and legitimise government actions. A constitution that
is manipulated to justify use of excessive power is no more than
a tool of arbitrary rule and negates the spirit of constitutionalism
that is essential in a constitutional democracy. Worse, the whole
exercise sets an unfortunate precedent and will do further damage
to the country’s profile and economic fortunes. As usual, otherwise
good intentions are tainted by the manner in which we seek to put
them into effect. A proper constitutional reform exercise that is
more inclusive and people-driven could pave the avenue for change
of political and economic fortunes of the country.
One of the key
features arising from the recent constitutional amendment (Amendment
No. 17) in Zimbabwe is the concern over the legal and institutional
basis of governance in the local political context. In particular,
the amendments raise questions over the purpose of the constitution
and the distinction between constitutionality and constitutionalism.
It seems that the leadership is more preoccupied with constitutionality
than it is with advancing constitutionalism. Instead of the constitution
being the supreme legal document regulating the exercise of state
power, it has become an instrument for control and attempts to legitimise
arbitrary actions. Such manipulation of the constitution will do
further harm to the country’s political profile and consequently,
its economic fortunes. The content of the constitution is affected
by the manner in which it is created. With greater political a wider
and more inclusive process of constitutional change could pave the
way for wider political and economic transformation in the country,
in the same way that the Convention for A Democratic South Africa
(Codesa) talks ushered change in South Africa in 1994.
It is generally
accepted that in a constitutional democracy the authority of the
majority is limited by legal and institutional arrangements in order
to protect the rights of the minorities and individuals. The system
is expected to ensure that while the majority has the authority
to form the government and rule the rights of minorities are also
taken into account. The constitution is the basic document that
provides for the basic legal and institutional structures for the
exercise of state power and its relationship with the citizens.
It enshrines the Bill of Rights to protect the individual and provides
for the separation of powers between the different arms of the state
in order to prevent the concentration of power in a single individual
or structure. It also enables the provision of checks and balances
between the structures of state power. In all this, the basic aim
is to ensure that those who govern are restrained by observing the
laid down rules and procedures so as not to excessively use their
powers. It also enables individuals and minorities to seek recourse
whenever the majority threatens their rights. There are fundamental
values underlying the system of constitutional democracy – fairness,
justice, equality, separation of powers, due process of law, etc.
The antithesis is arbitrary rule where the state exercises its power
without restraint or checks and balances.
The recent amendments
demonstrate an unhealthy preoccupation with constitutionality but
no concern for constitutionalism. By this I refer to the tendency
to focus on the constitution as a simple legal document with a set
of rules that simply validate and legitimise government actions.
The idea is that those in power find comfort in inserting rules
in the constitution for purposes of validating their actions regardless
of their impact on the rights of citizens. Whenever they are challenged
they always raise the defence that they are acting precisely in
terms of the constitution. Such rules may even entrench arbitrary
rule and may violate the basic values of constitutionalism but they
nonetheless satisfy the basic needs of those that propagate them
since they are technically part of the constitution.
This tells us
that mere legal constitutionality is not the answer in a democracy.
In other words, simply inserting clauses in a constitution does
not meet the basic demands of constitutionalism and does not advance
democracy. The source of legitimacy does not lie in the mere presence
of a clause in a constitution but also in the values that it represents
and the way in which it is created.
Defining constitutionalism
is a matter of great philosophical debate and cannot be exhaustively
covered in this article. However, the implication of constitutionalism
is that in exercising its powers the government should be limited
by law. Its authority over the people is dependent on its observance
of the limitations under the law. Those limitations are usually
enshrined in the constitution. When such limitations are removed,
as is the effect of the recent amendment, which ousts the jurisdiction
of the courts in matters involving certain aspects of property,
it undermines the very essence of constitutionalism. The implication
is that unlike constitutionality, the mere insertion of a clause
in a constitution does not mean that the government is acting according
to the tenets of constitutionalism. The government ought to observe
its limitations and address constitutional values as defined by
the people. Whereas simple adherence to constitutionality might
give comfort to the government that it is right because it is acting
in accordance with the constitution, it does not mean that its actions
are legitimate if they violate the spirit of constitutionalism.
In turn, the very basis of legitimate governance is undermined.
This is why
the recent amendments raise questions over the approach we are taking
as a nation. The amendments have the effect of validating the exercise
of state power by making its actions (including past actions) technically
constitutional. However, fundamental questions remain as to whether
the key values of constitutionalism have been taken into account.
This is more than a question of legal technicalities. It goes beyond
the concern of lawyers but touches on the very essence of governance.
Do we have constitutions simply to validate government actions or
do we have them to create the legal and institutional structures
to safeguard citizens’ interests? Is the constitution an instrument
for the exercise of power or is it for the control of power? If
the constitution is simply to provide for the exercise of power
is it necessary at all? In my opinion, these are questions that
we often overlook, take for granted or leave to a very small section
of the population. Yet they have wider and far-reaching impact on
the political, economic and social life of the nation.
One of the problems
is that wider society is generally unaware of the significance of
the constitution and constitutionalism. In Zimbabwe, prior to 1999
knowledge of constitution was largely restricted to the legal profession,
politicians, political scientists and few other professions whose
constituents had come across the document in the course of their
studies. The constitution itself was a compromise reached at the
Lancaster House Conference in 1979 to end the war of liberation.
As with many other African countries, the constitution in Zimbabwe
was not created by the local people but was a document drawn up
with the strong influence of the former colonial power. This flawed
process of creation is part of the fundamental weaknesses of constitutional
democracy in countries like Zimbabwe as opposed to South Africa,
which created its own constitution in a more inclusive and open
process in which citizens were widely represented.
The compromises
at Lancaster are reflected in the original constitution, which by
and large postponed some of the problems that have recently come
to haunt Zimbabwe. It may be no use crying over spilt milk but suffice
to say that had the original constitution been more people-driven
and inclusive, perhaps things could have turned out different. A
constitution should reflect the history, aspirations, and vision
of the nation. The original constitution did not do this and for
that reason it was a weak legal instrument. And perhaps Britain
as the former colonial power may have to acknowledge its part in
the failure to usher proper constitutional basis at the relevant
time.
The recent amendments,
as others before in the last 25 years are attempts to re-work the
original constitution to reflect some of these concerns by a section
of the society. Constitutionalism holds that the process by which
a constitution is made is as important as its content. I have already
stated that the process by which the original constitution was made
was wrong and is part of the problem we seek to address today. Similarly,
the process by which the government is trying to change the constitution
is also flawed. Some of its intentions that at any other time would
be right and legitimate have been tainted by the manner in which
they have been done.
The number of
amendments that have been made over a short space of time – 17 amendments
in 25 years, reflects some of these errors. Zimbabwe’s constitution
now resembles an old pair of trousers with several patches all over.
In Shona, we would say rave tirauzi rine zvigamba. In our
youth, it was not nice to be seen in public wearing such a pair
of trousers. It was better to get new material and ask the local
tailor to make a new one. This is what Zimbabwe needs – a new pair
of trousers rather than one with patches all over.
In conclusion,
these amendments demonstrate that as a people we seriously need
to re-examine our attitude to the constitution. The constitution
is not simply a document that should concern lawyers and political
scientists. It is the soul of the nation and the foundation of the
system of governance. Ideally, the constitution should regulate
the power and relationships between the government and the citizens
and not as a means of legitimising the exercise of state power.
The idea of the constitution is not to give power to the state but
to limit its exercise in order to protect the minority from the
oppression of the majority. When the constitution is created to
legitimise state actions and validate its exercise of power and
remove limitations, the result is a constitution without constitutionalism.
Legal constitutionality as opposed to constitutionalism is as dangerous
as arbitrary rule. The constitution should be sacred, serving the
interests of the people and safeguarding their rights.
We must avoid
at all costs, attempts to manipulate or downgrade it into an ordinary
document. Piecemeal amendments are not the solution to the flawed
constitution handed down at Lancaster in 1979. As in South Africa
in the early 1990s, a people-driven, more inclusive process and
a home-grown constitution is what Zimbabwe desperately needs at
this stage. And better still, that could be the most convenient
forum to address the critical problems currently facing the country.
But this requires political will both of the chief political players
in Zimbabwe and the external friends and associates of the country.
*Dr Magaisa,
a lawyer is formerly a Lecturer in Law at the University of Nottingham.
He writes a law and business column in the Zimbabwe Independent
newspaper. He can be contacted at wamagaisa@yahoo.co.uk
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
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