Constitution Principles

What is a Constitution

What is a Constitution?
The constitution of a country is a set of rules that define the nature and extent of the country’s government. It is sometimes referred to as the country’s fundamental or basic law, and has supremacy over all other laws. A constitution establishes the basic institutions of the State and regulates the executive, legislative and judicial branches of government and the relationships between those branches; many modern constitutions also regulate relationships between individuals and their government, particularly by guaranteeing individuals certain fundamental human rights. The provisions that can and should go into a constitution will be dealt with under the following headings:

A Preamble to a Constitution

What is a preamble?

The preamble to a constitution is an introduction to the constitution and usually bears the formal heading “Preamble”. It presents the history behind the constitution’s enactment, and sometimes sets out the nation’s core principles and values.

Do all constitutions have preambles?

Founding Principles of a Constitution

Founding Principles of the Constitution can be described as: “those values that citizens commit themselves to their adherence. They are the foundations of the Constitution and they reflect the manner in which the people desire to be governed.”

Introduction

The Constitution and the Rule of Law

What is the “Rule of Law?”

Our current Constitution states that public officers owe a duty to everyone in Zimbabwe to observe and uphold the rule of law [section 18(1a)], and the “Kariba Draft” Constitution contains a similar provision. However, most people — including lawyers — have only the vaguest idea of what the expression “rule of law” means. This is understandable because it is an elastic concept. Fundamentally it means that people’s rights and obligations must be determined by laws rather than by individuals or groups of individuals exercising an arbitrary discretion. From this fundamental concept several principles are derived:

Citizenship

Should the new Constitution deal with citizenship?

Citizens form the basis of every independent State because a State is an abstract concept comprising the people who live within a defined area. Of the people who constitute a State it is the citizens who have a right to determine who will govern them and, sometimes, to decide the form which their government should take.

A Declaration or Bill of Rights

Most modern constitutions have a Declaration or Bill of Rights setting out fundamental rights and freedoms that are specially protected by the constitution. Declarations of Rights have a long history. English-speaking people regard their first as the Magna Carta of 1215, while the French look to the Declaration of the Rights of Man and of the Citizen, which was adopted at the beginning of the French Revolution in 1789. The practice of including a statement on rights in constitutions became prevalent after the UN General Assembly adopted the Universal Declaration of Human Rights in 1948.

Social and Economic and Cultural Rights

What are Social, Economic and Cultural Rights?

“Liberty, Equality and Fraternity” was the slogan of the French Revolution, and some writers have used the slogan as a rough guide to divide human rights into three “generations”.

The first generation of human rights, which were the first to be recognised in international law, are those concerned with “liberty”, i.e. with the right to participate in political life. Examples of these rights are the rights to personal liberty and the protection of law, freedom of association and speech, and the right to vote in elections.

Separation of Powers

Introduction

The doctrine of separation of powers was touched on in an earlier Constitution Watch. It is one of the essential elements of the rule of law, because without a proper separation of powers the rule of law will be imperilled, but the doctrine has a wider application and this Constitution Watch will examine it in greater detail. It will be seen that although the doctrine represents an ideal which cannot be put into practice absolutely, it does emphasise the need to provide adequate checks and balances within the governmental system.

Executive Powers

Introduction

In the previous paper we outlined the doctrine of separation of powers between the three branches of government, namely the Executive, the Legislature and the Judiciary. We noted that although the doctrine shows how important it is for the three branches to be autonomous, it does not deal with the nature and extent of the powers that each of those branches should exercise within their own spheres. In this and subsequent papers we shall deal with the powers of the individual branches, starting with those of the Executive.

Legislature

The legislative branch of government is the branch which makes laws for the country. A legislature embodies the idea that people are the source of political power in the State and should control the law-making process. It is an institution of representative democracy under which the people elect representatives to act for them, as opposed to direct democracy under which the people enact legislation themselves through referendums or mass assemblies.

The Judiciary

The judiciary is one of the three main branches of government, the other two being the Legislature (i.e. Parliament) and the Executive (the President, Ministers, the Public Service, the Police and Defence Forces). The judiciary consists of all judicial officers, namely, the people such as judges and magistrates who decide civil and criminal cases in courts.

Security Services and Security Service Commissions

Under the Present Constitution

The disciplined services – the Defence Forces (consisting of the Army and the Air Force), the Police Force and the Prison Service – are the subject of separate parts of the present Constitution.

The Public Service and Public Service Commission

Some Basic Principles

As the name implies, the Public Service exists to serve the public. Public servants are paid by the public and should serve the public impartially and in a professional manner, irrespective of their own political views or those of the members of the public with whom they are dealing.

Constitutional Commissions

Under the Present Constitution

Four constitutional commissions are established by the Zimbabwean Constitution:

· the Zimbabwe Electoral Commission

· the Zimbabwe Anti-Corruption Commission

· the Zimbabwe Media Commission

· the Zimbabwe Human Rights Commission.

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