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The Constitution of Zimbabwe: Towards A Model for Africa?

Published online by Cambridge University Press:  28 July 2009

John Hatchard
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Extract

On 18 April, 1991, the Republic of Zimbabwe celebrated its 11th year of independence. Coincidentally, just a few months earlier, the 11th constitutional amendment Act was passed. This flurry of legislative activity was the result of a desire on the part of the government to develop a new constitutional structure rather than to remain with the constitution which was essentially imposed upon it by the British during the 1979 Lancaster House conference which eventually led to independence in 1980. The new constitutional model is of considerable interest as it is based upon those operating in many other African nations but, according to the Minister of Justice, is designed to provide safeguards on the exercise of presidential power and to avoid unnecessary conflict and division between the various branches of government. On several occasions, ministers have stressed the autochthonous nature of the new structure and some have indeed suggested that it might form a model for other African countries.

It is the intention of this article to examine the legitimacy of these assertions by analysing both the new constitutional structure and its operation in practice. In order to assess the significance of these changes, it is first necessary to examine very briefly the Lancaster House constitution and constitutional developments in the early years of independence.

Type
Research Article
Information
Journal of African Law , Volume 35 , Issue 1-2: RECENT CONSTITUTIONAL DEVELOPMENTS IN AFRICA , Spring 1991 , pp. 79 - 101
Copyright
Copyright © School of Oriental and African Studies 1991

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References

1 See, for example, Parliamentary Debates 27 10, 1987Google Scholar.

2 Constitution of Zimbabwe Amendment (No. 5) Act.

3 Constitution of Zimbabwe Amendment (No. 4) Act 1984Google Scholar. Other amendments included: the abolition of dual citizenship (1983); reduction in the minimum age for membership of statutory commissions and the Senate (1981) and the replacement of the old court system of the General Division and Appellate Division of the High Court with a new court structure consisting of the Supreme Court and High Court (1981).

4 At most they constituted no more than 3% of the total electorate. In the 1985 General Election the total number of votes cast in the white roll elections nationwide did not exceed the total number of votes cast in any one of the 80 common roll constituencies. In fact the total number of votes cast in the white roll election represented a mere 1.1% of the total votes cast in the entire election. The disparity is further highlighted in that the averagenumber of votes required to elect an MP in the common roll elections was 37, 151 whilst in the white roll elections an average of just 1, 787 was needed.

5 In this regard, it is perhaps significant that no such provision was included in the Namibian Constitution.

6 Constitution of Zimbabwe Amendment (No. 6) Act.

7 A new political force, the Zimbabwe Unity Movement (ZUM), led by Edgar Tekere, a former secretary-general of ZANU, won two seats. The remaining seat was won by a candidate representing ZANU (Ndonga), a party which supports the former nationalist leader Ndabaningi Sithole.

8 Namibia is now the only sub-Saharan state which makes provision for a second elected chamber, the National Council. Members will be elected on a regional basis rather than on a constituency basis as is the position for the lower house. For details see Cottrell, J., “The Constitution of Namibia: An Overview” (above, p. 56)Google Scholar and Hatchard, J., and Slinn, P., “Namibia: The Constitutional Path to Freedom” (1990) X(2) International Affairs 150Google Scholar. Curiously, in April 1991 the Mvunga Commission in Zambia, which was set up by the President to draw up a new constitution, also recommended a bicameral structure.

9 Constitution of Zimbabwe Amendment Act (No. 9).

10 The figure includes the Attorney-General who is also a member of the Cabinet ex officio and has a seat, but no voting rights, in parliament.

11 See the comments of the Senior Minister of Political Affairs in Parliamentary Debates 16 08, 1990Google Scholar.

12 See section 23, Constitution of Zimbabwe.

13 Section 41(1). The provision was introduced in the Constitution of Zimbabwe Amendment (No. 9) Act.

14 Curiously, no such disquiet was evidenced when several PF-ZAPU members crossed the floor of the House to join ZANU(PF) prior to the unity agreement.

15 A point recognised by Robert Mugabe himself: see Mugabe, R. G., “The Parliament of Zimbabwe and Some Aspects of the Constitution”, The Parliamentarian LXV, 1984, 5Google Scholar.

16 See Klieman, , “Emergency Powers and Liberal Democracy in Britain”, (1975) 16 Journal of Commonwealth and Comparative Politics 190CrossRefGoogle Scholar. Cf. Tordoff, W., “Residual Legislatures”, (1974) 15 Journal of Commonwealth and Comparative Politics 235CrossRefGoogle Scholar.

17 The problems of the legislature are compounded by the fact that only a handful of backbenchers ever make regular contributions to debates and that all legislation in recent years has been passed without any meaningful changes thereto by parliament. The apathy of members was epitomized on 28 02, 1991Google Scholar when Parliament met at 2.15 p.m. and adjourned at 2.35 p.m. because of lack of contributions on two debates covering important national issues. Indeed the Minister of Justice later strongly criticized members for their lack of contributions (see Parliamentary Debates 5 03, 1991)Google Scholar.

18 See Constitution of Zimbabwe Amendment (No. 7) Act.

19 This sets an useful precedent for South Africa where many exiles have returned with children who were all born outside the country. Cf. Namibia where citizenship by descent may only be claimed through parents and is not acquired automatically but is subject to a registration procedure: section 4(2). See Hatchard, and Slinn, , op. cit, at 152Google Scholar.

20 For the purposes of the election of the first executive president, members of the legislature met as an electoral college and on 30 12, 1987Google Scholar, unanimously elected Robert Mugabe.

21 Minister of Justice Parliamentary Debates 27 10, 1987Google Scholar.

22 In addition, long serving presidents often retain essentially the same set of advisers. This has the tendency of frustrating younger and potentially more able individuals and deprives the nation of new and innovative ideas.

23 As the case in Zambia highlights where the popularity of President Kaunda has dropped dramatically in recent years.

24 See the Presidential Pensions and Retirements Benefits Act.

25 The first President, Rev. Canaan Banana, stood down from office to allow Mugabe to become executive president. In addition to his pension (and also his salary up to 1992) Banana became entitled to the following: (a) the services of 1 domestic worker; 1 cook; 1 gardener; 2 drivers; and 1 private secretary; (b) the facilities of 1 Mercedes Benz motor car; 2 colour television sets; and a Government office and telephone. See statement of the Vice-President in Parliamentary Debates 24 03, 1988Google Scholar.

26 Act 7 provided for the appointment of one Vice-President. The first office-holder was Simon Muzenda, the former Deputy Prime Minister. In 1990, and as part of the unity process, provision was made for a second Vice-President—see Constitution of Zimbabwe Amendment (No. 10) Act.

27 See Parliamentary Debates 27 10, 1987Google Scholar.

28 See proviso to section 31H(5).

29 See, for example, N'Cube, W. and Nzombe, S., “The Constitutional Reconstruction of Zimbabwe: Much Ado about Nothing?”, (1987) 5 Zimbabwe Law Review 2, at 13Google Scholar.

30 Parliamentary Debates 27 10, 1987Google Scholar.

31 See Minister of Justice, Legal and Parliamentary Affairs, Parliamentary Debates 27 10, 1987Google Scholar.

32 For a similar view see Nwabueze, B., Constitutionalism in the Emergent States, London, 1973, 77Google Scholar.

33 Section 29(3).

34 Constitution of Zimbabwe Amendment (No. 9) Act.

35 See, for example, the speech of the Minister of Home Affairs, Parliamentary Debates 13 07, 1982Google Scholar.

36 For a full discussion see Hatchard, J., Individual Freedoms and Security Powers in Zimbabwe, London, 1991Google Scholar.

37 It is interesting to note that when, in 01 1990Google Scholar, parliamentary approval was sought (successfully) for a renewal of the state of emergency for the 49th consecutive time, the Minister of Home Affairs condemned a letter sent by the Catholic Commission for Justice and Peace in Zimbabwe to all MPs urging them to end the emergency stating that members should not be subjected to outside influences as they were perfectly capable of making up their own minds.

38 For example, in 11 1980Google Scholar emergency regulations amended the Electricity Act and thus permitted the Minister to impose a development levy designed to finance the building of a new power station. This was a blatant circumvention of the legislative process.

39 Oddly, the Attorney-General is appointed by the President after consultation with the Judicial Service Commission. The office-holder requires similar qualifications and enjoys similar protection to those of a High Court judge. However, the office does not now form part of the public service. Under the Lancastei House Constitution, the Attorney-General was a public officer with a status comparable to that of a permanent secretary. He/she had the power to instigate, take over or discontinue any criminal proceedings (section 76(4)). Other legal matters were performed by the Minister of Justice, Legal and Parliamentary Affairs. This division of responsibility was unacceptable to government and so in 1989, the Attorney-General, in additional to existing duties, was made the chief government legal adviser with a seat (ex officio) in both Cabinet and Parliament (section 76(1)).

40 Introduced by Act 11.

41 This would mean that the legislature would, in theory, be able to enact a law convicting a person of a criminal offence and imposing a sentence therefor, without judicial determination of the matter. See the discussion in Nwabueze, , op. cit., 69–70Google Scholar.

42 Although a judge may elect to remain until 70 years of age (section 86(1)).

43 See York v. Minister of Home Affairs (1982) (unreported)Google Scholar.

44 S v. Slatter [1986] LRC (Const) 66Google Scholar.

45 For a full discussion ofthe case see Hatchard, J., “The Right to Legal Representation in Africa: The Zimbabwean Experience”, (1988) 4 Lesotho Law Journal 135, 140Google Scholar.

46 SC–152–89.

47 Parliamentary Debates 5 06, 1990Google Scholar.

48 In Zimnat Insurance v. Chawanda (SC 107/90) the Supreme Court, having noted that law in a developing country cannot remain static but must be constantly on the move, vigilant and flexible to current economic and social condition, stated:,

“The judiciary can and must operate the law so as to fulfil the necessary role of moulding and developing the process of social change. It is now acknowledged that judges do not merely discover the law, but they also make law. They take part in the process of creation. Law-making is an inherent and inevitable part of the judicial process”.

How far this coincides with the view of government is surely debatable.

49 Parliamentary Debates 6 12, 1990Google Scholar.

50 See Emergency Powers (Security Forces Indemnity) Regulations 1982 SI 487/82 and Emergency Powers (Security Forces Indemnity) (Amendment) Regulations No. 2 1983 SI 159/83. The first set of regulations were later found by the Senate Legal Committee to contravene the constitution whilst the second set were declared ultra vires by the Supreme Court in Granger v. Minister of State Security SC 83/84.

51 SC 64/89.

52 For a full discussion of the case see p. 199 below.

53 SC 64/90.

54 The Act does not affect the ruling of the Supreme Court in S. v. N'cube (1988 (2) SA 702Google Scholar; [1988] LRC (Const) 442) that the whipping of adults contravenes section 15.

55 See now section 15(3) Constitution of Zimbabwe. For a critique of the reinstatement of corporal punishment see below at p. 198.

56 Section 15(4) of the Constitution of Zimbabwe.

57 Parliamentary Debates 6 12, 1990Google Scholar.

58 Ibid.

59 A.I.R. 1973 SC 1461Google Scholar. See also the Bangladesh case of Anwar Hossain Chowdury v. Bangladesh 41 DLR (AD) 1989 165Google Scholar.

60 For a useful discussion of the doctrine see Morgan, D. G., “The Indian Essential Features Case” (1981) 30 ICLQ 307Google Scholar.

61 See especially ibid. at 321.

62 Indeed the day following the handing down of judgment in Kesavananda, it was announced that Chief Justice Sikri, one of the majority who upheld the doctrine, was to retire. Against all tradition, his successor was named as Ray, J., who was the most senior member of the minority in Kesavananda: see Morgan, op. tit., at 335–6Google Scholar.

63 Act 11 was passed by 113 votes to 3.

64 Before enacting such a provision a full review of the current Declaration is needed in order, for example, to eliminate the complex protection relating to land.

65 Inexplicably, Zimbabwe has acceded to very few international human rights instruments. It is absolutely essential that Zimbabwe, as a member of the United Nations, should ratify major human rights instruments such as the International Covenant on Civil and Political Rights (and the Optional Protocol) and the International Covenant on Economic, Social and Cultural Rights. This would add further strength to the Declaration of Rights.

66 For an account of the ombudsman see Hatchard, J., “The Institution of the Ombudsman in Africa with Special Reference to Zimbabwe”, (1986) 35 ICLQ 255Google Scholar.

67 After consultation with the Judicial Service Commission—as discussed above, p. 91.

68 See the heartfelt plea for more resources by the Ombudsman in the Sixth Annual Report of the Ombudsman (1988)Google Scholar where a full survey of the operational difficulties are set out.

69 S. 108(2) Constitution of Zimbabwe and ss. 8 & 10 and sch. 1 Ombudsman Act 1982Google Scholar. Also specifically excluded are the President and his staff; the Cabinet Office and judicial officers; the Attorney General and his law officers in relation to legal advice given to the State or legal proceedings, including prosecutions conducted on behalf of the State S. 9 and sch. 2 Ombudsman Act 1982.

70 Parliamentary Debates 06 18, 1982Google Scholar.

71 Minister of Justice Parliamentary Debates 06 18, 1982Google Scholar. The question of security problems and “deluge of frivolous cases” are already provided for in the Ombudsman Act (See s. 8(3)(c) and (d)).

72 The Ombudsmen in Zambia: Tanzania, Uganda and Namibia all have jurisdiction over the security forces and none have reported any problems in exercising its powers.

73 See, for example, the Report of the Secretary-General on the implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Document E/AC.57/1990/3, 15 10 1989 paras. 5–6Google Scholar.

74 First Annual Report of the Zimbabwean Ombudsman, Harare, 1983, at 6.

75 Minister of State for the Public Service discussing the recommendation made for such an expansion in the Report of the Public Service Review Commission 1989: see Parliamentary Debates 11 1, 1989Google Scholar.