Learning to Walk – The Story So Far

Introduction

The purpose of the report provides a big picture of the milestones of the Constitution’s journey since it was adopted in 2013. It is intended to provide a balanced picture of what has been done and how the constitution has fared so far; the lessons learned and finally a set of recommendations.

This report is being launched at a time when the Constitution is under severe stress. This after the passing of two constitutional amendments, namely Constitutional Amendment Act No. 1 (hereafter, “Amendment No. 1”) and Constitutional Amendment Act No. 2 (hereafter, “Amendment No. 2”) both of which are subject to legal disputes. The situation is one of a constitutional crisis, because the constitutional arrangements designed to resolve the legal disputes lead to a cul-de-sac. The CLC’s primary mission is to promote, defend and protect the Constitution.

This report captures landmark moments of the journey of the Constitution since it was adopted at a referendum on 16th March 2013 and became operational from the 22nd of May 2013. The launch comes on the 8th anniversary of the Constitution. In that brief period, there have been several important developments that affirm the mission of the CLC.

Who We Are

The CLC is a consortium of 6 organizations that are involved in research and advocacy regarding constitutionalism and human rights. They are ZimRights, Centre for Applied Legal Research, WeLead Trust, Women’s Institute for Leadership Development, Justice for Children Trust, and Zimbabwe Human Rights NGO Forum. Together, the organizations bring an array of skills and resources that set the CLC on a firm foundation to promote, defend and protect the Constitution.

The CLC is designed to ensure that its output feeds into the work of the consortium partners, providing intellectual leadership in research and development. We are united in the belief that as the supreme law of the country, citizens’ awareness of the Constitution is essential for developing and enhancing a culture of constitutionalism and the rule of law.

Adoption of the new Constitution

The adoption of the new Constitution in 2013 was a landmark moment in the history of Zimbabwe. It was the culmination of a long process that began in the late 1990s when the National Constitutional Assembly put constitutional reform on the national agenda. At that time, the weaknesses of the much-amended Lancaster House Constitution had become apparent. The first attempt to re-make the Constitution when the government set up the Constitutional Commission in 1999 failed when the Draft Constitution was rejected at a referendum in February 2000. While this resulted in stalling the constitutional reform agenda, advocacy for a new Constitution continued.

The constitutional reform agenda was resuscitated in 2008 when it was included in the Global Political Agreement in the aftermath of the 2008 general elections. The GPA laid the foundation of the Inclusive Government and it was under the stewardship of this governance arrangement that the new Constitution was negotiated. Indeed, it was one of the major achievements of the Inclusive Government which represented a success of consultation, co-operation, and consensus. The great lesson to draw from the adoption of the new Constitution in 2013 is that Zimbabwe has the potential to achieve progressive milestones through these processes of consultation, cooperation, and consensus.

Aligning Law to the Constitution

Although the adoption of the 2013 Constitution was a momentous occasion, it was only ever going to be the start of a long journey. Much work lay ahead, particularly to ensure that laws were aligned to the new Constitution. In this regard, the Constitution was born with an inherent weakness. It is that it did not have a formal constitutional implementation organ. Such an organ would have been given specific tasks and timelines within which to complete the process of re-aligning existing laws to the new Constitution. In the absence of such a specialized organ, the task of realigning legislation fell to the government.

While there have been efforts to realign some legislation to the 2013 Constitution, the criticism has been that the process has been slow. That notwithstanding, there has been a significant increase in the pace of alignment in the last 3 years. For instance, out of the 59 targeted laws for alignment, 30 laws have been aligned to date, while 29 are currently awaiting cabinet approval. The increased pace of alignment may be attributed in part to a higher level of ‘political will’ on the part of government than before, increased levels of technical support and citizen action.

For example, while the government had committed to establish a law establishing an independent complaints mechanism, it was only after the Constitutional Court ordered the setting up of an Independent Complaints Mechanism required by section 210 of the Constitution that the government was hastened to introduce the Zimbabwe Independent Complaints Commission Bill to Parliament. Some of the most contentious legislation of the pre-2013 period have been repealed and replaced by new laws. For example, the notorious Public Order and Security Act has been replaced by the Maintenance of Peace and Order Act while the Access to Information and Protection of Privacy Act has been repealed and replaced by the Freedom of Information Act and the Zimbabwe Media Commission Act. However, there has also been criticism aimed at some these new laws.

It is not the purpose of this report to do a critical assessment of some of these laws, but it suffices to say that may be grounds of criticism, the new laws have also presented opportunities that can be used for progressive reforms. For example, operationalizing and making use of the Freedom of Information Act, which gives effect to the right of access to information in section 62 of the Constitution can help to promote public access to information held by the government. Likewise, the proposed legislation to set up the Independent Complaints Mechanism under section 210 of the Constitution presents opportunities to seek remedies for harm caused by the conduct of members of the security services.

Conclusion

  • Constitutionalism is a culture that must be nurtured and promoted over time. The Constitution represents the collective imagination of a nation, it’s values, principles and aspirations. It cannot promote or defend itself. For these purposes, it relies on institutions and human agents. They must believe in the Constitution and in constitutionalism and the rule of law. That way, they can promote and defend the Constitution when it is under threat.
  • Recognising that it cannot succeed without help, section 7 of the Constitution created a mechanism for its promotion. It requires the state to take measures to promote it. It also requires all persons, including civic organisations to promote the Constitution.
  • The 2013 Constitution was the product of political negotiations. While it has several progressive features, it is by no means perfect. There must be constitution-driven reforms but also where necessary there must be constitutional reforms. However, where such reforms are contemplated, they must be people-driven, which means there must be full participation of the citizens. The constitutional procedures for changing the Constitution must be adhered to both in letter and spirit.
  • This report has shown that while there have been some important developments over the past 8 years, there is still a long way to go to create a culture of constitutionalism and the rule of law. Lack of citizens’ awareness of the Constitution is a critical deficit which is impeding the growth of constitutionalism. This is why it is very important for the CLC and its partners to take a strong lead in promoting constitutional awareness and knowledge at all levels of society, working with both state and non-state actors.

Read the full report here (1MB PDF)

Source: Zimbabwe Human Rights Association

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