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Cultivating a constitutional culture for a new Zimbabwe
April 07, 2006
ONE of the key
rallying points of the current struggle is the campaign for a new
It is widely believed that the current patchwork that we call a
constitution is fundamentally flawed and therefore requires urgent
This idea of the campaign is correct and commendable.
My concern however, is that it targets a change of the set of rules
under which the country is governed without placing similar emphasis
on the culture and norms that define the attitude and conduct of
individuals between themselves, organisations and the state.
It is a note of caution suggesting that the success of a new constitutional
order depends not necessarily on the beauty of the new legal rules
that are established but on the behaviour, norms and socio-political
culture in the society.
Without the constitutional culture the spirit of constitutionalism
cannot be sustained.
The growth of this culture starts at the very basic unit of society
to the highest organs of the state.
To that end, the family, the village, neighbourhood, local community,
civil society organisations, political and non-political organisations,
commercial and non-commercial organisations all have a role in cultivating
this constitutional culture, which supports constitutionalism.
It is not mere adherence to rules that matter, but whether those
rules encapsulate the values of a given society lived and experienced
by the citizens.
This bundle of factors determining whether or not there is a suitable
constitutional culture is what leading scholars have called "social
Instead of expecting the constitution to save people from misery,
it is the people who have an obligation to save the constitution
The current approach assumes in part that the constitution can work
as a tool of social engineering, that is, as an instrument of changing
the political culture and conduct of the leadership towards the
citizens and democracy.
It is argued that a key fault in the current constitution is that
it centralises power in the executive arm of government.
However, it also assumes that if a new constitution is promulgated
the political leadership will have the right attitude and inclination
to conduct themselves in ways that further the goals of the constitution.
This assumption is inaccurate.
It also assumes that the citizens will have the desire, capacity
and resources to serve and defend the constitution.
A new constitution does not equate to a new constitutional culture.
Indeed a constitutional culture is not automatically and instantly
triggered by the emergence of a beautifully crafted constitution.
Developing social capital to grow the constitutional culture is
a long-term issue and it is often unattractive to politicians seeking
immediate political power.
It is also a remote incentive for people who are struggling to get
by under very difficult socio-economic conditions. Politicians tend
to focus on the tangible document — the constitution.
But we must also talk about these unpopular, less eye-catching issues
and place them in the marketplace of ideas for people to define
their agenda for change.
But how then can the requisite constitutional culture be developed?
The key thing is that it is an organic process, which simply needs
to be nurtured and encouraged.
The constitution is a testament of the values cherished and protected
by a society over a period of time.
It is therefore important to have a good appreciation of the constitutional
history of the nation.
This history is vital because it shows us the values that have been
cherished and advanced at each stage of development and therefore
shapes the future direction.
Constitutional culture is at the same time local and international
— local in that it grows out of the needs and experiences of the
Zimbabwean people and global in that there are common threads that
can be identified in all societies across the world based on the
idea that at the centre of all political struggles is the desire
for human dignity and respect.
In essence therefore, the creation of a constitution is part of
the political struggle. If it is correct that constitutions are
products of political struggle, there are three key points that
follow from this characterisation:
First, every constitution ought to reflect the values, ideals and
goals of the society engaged in political struggle. A constitution
is therefore likely to be unique depending on the experiences of
that particular society.
The key here is for society to identify and entrench its values
in the constitution — in other words, the values that the constitution
protects cannot be prescribed from outside and cannot be divorced
from the values of the living communities.
The values to which a society aspires define the conduct and attitudes
of individuals that is essential for cultivating the constitutional
Close observation shows that Americans always refer to their values,
as do the British, the French or other societies that have had long
recorded constitutional histories.
Our values do not have to equate to those of any other country,
but they must be defined nonetheless;
Second, because it is part of the political struggle, constitution-
making is necessarily an on-going process.
My concern is that the current approach seems to have given the
impression that the creation of a new constitution is an achievement
that will guarantee good governance and everyone will live happily
The reality is that constitution- making will not stop on the day
a new document replaces the current one. It is worth remembering
in the history of modern Zimbabwe that there have been several episodes
when the constitution has been changed.
It is easy to forget that the pre-colonial societies had their own
constitutional arrangements as did the colonial society afterwards.
Constitutional historians therefore have a key role to play in the
In essence, citizens must be prepared that constitutional struggles
will continue, albeit in different forms over the course of time;
Third, by virtue of it being a political struggle, there will inevitably
be victors and losers at every stage.
The losers at every stage will continue to seek change.
But winners at one stage may become losers at another point depending
on the changes in societal values influencing interpretation of
Values and goals also change over time and with that rights are
either gained or lost.
Historically disadvantaged people such as gays, women, black people
and ethnic minorities have at different times in the course of history
gained rights as societal values in different places changed.
But it is not the constitution that changed the values — the changes
in those values most likely helped to transform society’s views
and therefore political and legal interpretations of already existing
Civil society organisations, political parties and all organisational
units need to engender the constitutional culture at local and national
Indeed, at the very basic unit of society — the family — that is
where values emerge and we have to start from there in developing
the culture that supports constitutionalism.
One cannot emerge from a family unit in which he/she tramples the
values that he/she wishes to preach at the national level.
The children’s behaviour, attitude and conduct are defined at the
family and local level. They grow up to become leaders in society
and their conduct is shaped by the values they learn from an early
If one grew up knowing that nothing can be obtained without paying
a bribe or taking unfair advantage of another person, how can he
be expected to act differently when he assumes a position of power?
Individuals and organisations that govern in traditional and modern
institutions need to cultivate the culture of tolerance, free-speech,
fairness, competition among other values.
Civil society leaders have to start the process internally in order
to make an impact when they preach the word of the constitution
Similarly, the leadership of political parties fighting for democracy
has to realise that its conduct and attitude toward rules, political
institutions and other people is as important as the document that
it continually talks about.
How they respond to dissent, competition and diversity and how we
deal with minorities or those that disagree is part of the process
of building that culture.
I hazard to add that for all its weaknesses, the current constitution
is not exactly the primary problem.
Rather, it is the conduct and behaviour of the incumbent leadership,
indeed any leadership that behaves similarly, that is at fault.
And this deplorable conduct occurs with or without the presence
The constitution has simply been a tool to legitimise actions but
has not necessarily been the main driver of the actions of the leadership.
that conduct that is patently unconstitutional has been permitted
over the years — even in the face of clear constitutional safeguards.
So rules in themselves are not the problem.
A good example of the irrelevance of rules in this context is in
relation to the judiciary.
The leadership could violate the constitution and yet the judiciary
fails to do anything about it regardless of the presence of constitutional
powers and obligations to safeguard the constitution.
We must recall that even the much-criticised judiciary has always
acted under the current constitution and at one point was one of
the best regarded in the Commonwealth.
The constitutional rules have not changed in any fundamental way
— but the conduct and attitude of political actors towards the judiciary
has changed most probably causing the judiciary to change as well
by retreating to the margins.
The rules have not changed but the values, character, ideals and
conduct of the principal actors have changed.
We can have a constitution with all the best safeguards, a constitution
with the most beautiful clauses but if the men and women who exercise
power and make decisions have no will to change their conduct because
they subscribe to different values, then that constitution will
I must end by acknowledging the efforts of the various groups, both
political and non-political, that have played roles in raising awareness
about the constitution.
Certainly, more people know about the constitution in 2006 than
they did in 1996.
However, a lot more needs to be done to promote constitutional literacy
as part of cultivating the constitutional culture.
From primary school, children have to know about the constitution
and its importance in the governance of the country.
When we talk about a new Zimbabwe we often restrict our vision to
an escape from the current malaise. In reality, a new Zimbabwe will
emerge over a long period of time.
It may never be realised in our lifetime but let us look ahead 20
or more years and hope that generations to come will look back and
acknowledge that a firm foundation was laid for them.
The idea of constitutional culture demonstrates that the struggle
for constitutional change is not and must never be the exclusive
preserve of lawyers endowed with drafting and advocacy skills.
It requires us to tap from other disciplines, which best capture
the values and the softer aspects that define the conduct and behaviour
of people in relation to each other and institutions.
It also involves calling upon ideas and wisdom from both traditional
and modern institutions at local and national levels.
It requires every individual to participate at the most basic level
because the people themselves are the constitution for the constitution
is no less than living practice — not just a set of carefully crafted
words on a document stored somewhere in the official cabinets.
The law alone will not change the situation — we have to look beyond
the law in building and nurturing the requisite constitutional culture.
*Dr Magaisa is a lawyer and can be contacted at firstname.lastname@example.org
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