CONSTITUTION WATCH 2/2024
[25th May 2024]
The Zimbabwe Constitution is Eleven Years Old
We at Veritas join other progressive Zimbabweans in commemorating the 11th anniversary of the Constitution. It was adopted after a referendum in 2013 to usher in a new era of constitutionalism and it remains a symbol of progress, democracy and the aspirations of the Zimbabwean people.
The Lancaster House constitution, which the current Constitution replaced, could be regarded as a ceasefire agreement between the liberation movements and the colonial minority government of Rhodesia. The 2013 Constitution, by contrast, was the result of negotiations between the main political players in Zimbabwe and was in many respects a compromise. Nonetheless Veritas believes it reflects the views and aspirations of the great majority of Zimbabweans. It brought an extended and expansive Declaration of Rights, greater separation of powers, term limits for certain public officers and devolution of power to provincial governments and local authorities.
Although the new Constitution brought hope for a democratic future for Zimbabwe, developments since then give rise to concerns about the Government’s commitment to democracy, the rule of law and other ideals enshrined in the new Constitution.
Of particular concern to Veritas are the following:
Constitutional Amendments
The Constitution has been subjected to two substantive amendments within the first decade of its existence.
· Constitution Amendment No.1 brought back the imperial presidency that people rejected in the 2013 referendum. The President now has power to appoint the Chief Justice, the Deputy Chief Justice and the Prosecutor General without making them go through public interviews.
· Constitution Amendment No.2 allowed the President to extend from 70 to 75 years the age at which the Chief Justice and other judges should vacate office. It also expanded the National Assembly by creating 10 additional seats reserved for youths and extended the life of women’s proportional representation quota by another two parliamentary terms.
These amendments did not correct any obvious errors in the Constitution, nor did they noticeably advance the ideals enshrined in it – except perhaps by giving increased parliamentary representation to youths and women. On the other hand, they undermined the principles of separation of powers, transparency and respect for human rights that the Constitution aimed to uphold. They have undermined the Founding Values as laid out in section 3 of the Constitution.
Devolution of Powers
Devolution of governmental powers and responsibilities from central government to provincial and local authorities is enshrined in Chapter 14 of the Constitution and is one of the principles of good governance among the founding constitutional values listed in section 3.
We are worried by the sluggish implementation of devolution. Provincial councils are still to be set up and made operative, 11 years after the Constitution was adopted. Local authorities have not been given any extra powers, and the law on local government remains as it was under the old Constitution – substantially unchanged since colonial times.
Democratic Freedoms
Democratic freedoms have not been noticeably enhanced since the Constitution came into force.
Freedom of expression remains restricted. The crime of insulting the President (section 33 of the Criminal Law Code) inhibits political debate, as does the recently enacted crime of “wilfully injuring the sovereignty and national interest of Zimbabwe” (section 22A of the Code, as amended by the “Patriot Act”).
Freedom of association, in a political context, is constrained by the Maintenance of Public Order Act which is almost identical to the pre-constitutional Public Order and Security Act – which in turn was very similar to the colonial Law and Order (Maintenance) Act.
The Private Voluntary Organisations Amendment Bill, currently before Parliament, threatens to stifle civil society organisations by bringing them almost completely under government control and denies principles of access to justice. Many of the Bill’s clauses are unconstitutional.
Term Limits
Some sections of the ruling party have proposed that the President should be allowed to serve another term in office after he reaches his two-term limit in 2028. This would entail amending section 91(2) and probably section 328 of the Constitution.
The President has not endorsed the proposal but nor has he clearly rejected it. The calls for him to remain in office have persisted, and seem likely to continue until the next election, or until the Constitution is amended. This is unfortunate, because term limits for executive heads of State are an important guarantee of democracy since they discourage the establishment of dictatorships.
We urge the Executive to reflect on why term limits were put into the Constitution. If we abolish them it will erode democracy and trust in institutions.
Conclusion
As the nation commemorates the 11th anniversary of the Constitution, we must strive for a society firmly grounded in democratic values where the rule of law is upheld, institutions are independent, and the fundamental rights of citizens are protected.
Veritas therefore urges the Executive and Parliament to implement the Constitution in both its letter and spirit, to embrace the principles of constitutionalism and to be circumspect about bringing in new constitutional changes.
