This weekend we have an unusual edition of The Big Saturday Read. There are two #BSRs instead of one. The first #BSR deals with the issue of amending the Constitution, which ZANU PF is planning and the second #BSR deals with the legalities of succession to the presidency under Zimbabwe’s Constitution.
The 2013 Constitution is just three years old but already, the ZANU PF government is plotting the first stages of its mutilation.
There have been noises lately within the corridors of power where some are calling for government to intervene urgently and amend the Constitution. In a recent editorial, the Herald implored ZANU PF to use of its two thirds parliamentary majority to amend the Constitution. It was dismayed by a decision of a High Court judge to allow a demonstration to go ahead in the face of government’s opposition.
On 2 September 2016, the Herald quoted the ZANU PF Chief Whip in Parliament, Lovemore Matuke, stating that the ruling party would be working on amending what he called “problematic clauses” in the Constitution. The paper also referred to “analysts” who said the Constitution was making it “difficult to govern”.
One of the targeted provisions is the right to demonstrate, which is provided for under section 59 of the Declaration of Rights. These partial demands for amendments to the Constitution come in the wake of the recent spate of demonstrations led by citizens’ movements such as #ThisFlag, #Tajamuka and traditional opposition parties which are calling for electoral reforms. There have been running battles between police and protestors, each accusing the other of violent conduct. The government is uncomfortable with the newfound enthusiasm among the public to express themselves, hence the moves to change the Constitution.
For those of us who were involved in the constitution-making process, there is some strange vindication in the criticisms and expressions of displeasure by the ruling party over the Constitution. I have always said while it was a product of political compromise and while there are some clauses which could have been better designed, the Constitution as a whole represents a progressive development for the country’s constitutional democracy. The fact that ZANU PF, which traditionally leans towards repression, is already making moves to amend a Constitution which is still in its infancy indicates that the ruling party did not always have its way during the constitution-making process.
This article assesses the various ways by which the ZANU PF government has tried to erode the Constitution and focuses on an important right which could be the target of proposed constitutional amendments given its significance in protecting human lives against law enforcement agencies.
Erosion by omission
The first way by which ZANU PF has eroded the substance and effect of the Constitution is by deliberate omission. The ruling party has shown its displeasure by completely disregarding parts of the Constitution which it never supported, such as devolution. This is why 3 years after the Constitution was adopted, devolution still only exists on paper. Instead of the provinces being led by elected Chairpersons under devolved structures, President Mugabe simply appointed Provincial Ministers in 2013. ZANU PF was staunchly opposed to devolution during the negotiations and its response after retaining power in 2013 has been to pretend that the part on devolution in the Constitution does not exist.
Unfortunately, the Constitutional Court has condoned this deliberate breach by refusing to consider the merits of a challenge brought by a citizen to force the government to comply and implement devolution. When former MDC-T Minister, Sam Sipepa Nkomo took the matter to the Constitutional Court, his case was inexplicably dismissed. In the case of Jealousy Mawarire v Mugabe and others (2013), the matter which infamously rushed an ill-prepared nation into the 2013 elections, there was a firm precedent justifying access to the court by any citizen who feels aggrieved by the failure to implement the Constitution. However, the Constitutional Court took a different turn from the liberal and permissive approach it had taken in the Mawarire case and ruled against Nkomo. Without judicial scrutiny, the government has been able to get away with literally ignoring and disregarding the Constitution.
Slow alignment of laws with the Constitution
Another way by which the ZANU PF has deliberately undermined the Constitution is through a slow and inefficient process of re-aligning existing laws with its new standards. The realignment of laws is an important process which ensures that existing laws comply with the new Constitution. Indeed, the fact that laws have not been realigned is an excuse that has been used to justify failures by state bodies to comply with the Constitution. For example, when ZEC was asked to register voters in 2014, as required by the Constitution, its argument was that the Electoral Law had not yet been realigned with the Constitution. However, this was a lame argument because the Constitution clearly states that all existing laws must be construed in accordance with the new Constitution and all laws are invalid to extent that they are inconsistent with the new Constitution. Realignment of legislation is a useful exercise but it is not an essential element that validates the Constitution. The Constitution is the highest law in the country and whatever it says should take priority above other laws. ZEC could not therefore hide behind the lack of realignment because the Constitution already conferred powers upon it to register voters.
In any event, ZEC soon recognised the folly of its argument when it was called upon to run and supervise by-elections in early 2015. To do so it needed a voters’ roll. Its argument that it could not register voters because the Electoral Law was not realigned with the Constitution became self-defeating. It had no choice but to reverse its ill-considered decision and start registering voters, albeit on a case by case basis, as by-elections fell due. This is the mode in which it is still operating, despite the fact that the Constitution requires it to register voters on a continuous basis.
The point is that the government and related institutions should not hide behind the lack of realignment, firstly because the delays are deliberately caused by government and secondly, the fact of non-alignment does not invalidate the Constitution. The Constitution must be implemented by the government and its institutions regardless of whether or not there has been legislative realignment. Yet they continue to use this lame excuse to subvert the Constitution.
Erosion by amendment
The most drastic way by which the Constitution is eroded is through amendment. So far, ZANU PF has hesitated to take this drastic route. This reluctance is probably due to embarrassment at moving to amend the Constitution so soon after its adoption, when ZANU PF was a key participant in the constitution-making process. It chose, instead, as we have seen above, to ignore parts of the Constitution which they do not like. However, now that they are encountering constitutional rules which are impeding the operations of its repressive machinery, they are moving to take the drastic steps to amend the Constitution.
This is the context in which the police issued an order this week banning demonstrations in central Harare for a period of 2 weeks, from 2 to 16 September 2016. As I have argued elsewhere, the order effectively amounts to amending the Declaration of Rights by subsidiary legislation, which is a serious violation of the Constitution https://alexmagaisa.com/2016/09/01/why-si-101a-banning-protests-in-central-harare-is-unconstitutional/
In the above article, I have already argued why the order which bans demonstrations in Harare is unconstitutional. Here, I address another constitutional issue, which I suspect government might move to amend, as law enforcement authorities might think it impedes them in the execution of their duties. It is the protection of the right to life and the power of police to use live ammunition in dealing with demonstrations. So far, the police have used tear-gas, water cannon and batons to deal with demonstrators. They have shown restraint in so far as using live ammunition is concerned. This restraint is arguably on account of provisions of the new Constitution, in particular, section 48 which guarantees the right to life.
Right to life and law enforcement
The need to balance the right to life and law enforcement is an important issue. The Zimbabwean Constitution now leans heavily towards protection of the right to life and severely limits the powers of law enforcement authorities. While much of focus on section 48 has been on the issue of the death penalty, less attention has been given to the revolutionary manner in which it re-defines relations between law enforcement authorities and members of the public. Section 48 has re-defined and outlawed what previously qualified as “lawful killing” by law enforcement authorities.
Section 48 outlaws the death penalty in respect of all women, men below 18 and above 70. However, even in the case of men between 18 and 70, its use is now very limited. More importantly, according to the strict protections in section 48(2), life cannot be taken away except in accordance with “a final judgment of a competent court”. The effect of this provision is to severely restrict circumstances under which a person may be lawfully killed to where a competent court so orders. The only competent authority which is permitted to allow lawful killing is a court of law that is duly empowered to impose such a penalty. In the past, the Constitution allowed the death penalty and more importantly, for law enforcement authorities, there was ground for them to use force which could result in so-called “lawful killings”. Police could therefore in exceptional circumstances use live ammunition which could result in killings – which could be deemed lawful. Now, however, a strict reading of the Constitution constrains the power of law enforcement authorities as no person is permitted to kill another except in accordance with a court order.
The protection under section 48 is enhanced by the rule in section 86(3) which makes the right to life one of the rights to which no exceptions can be made. In this regard, the right to life enjoys the same status as the right to human dignity, freedom from torture, cruel, inhuman and degrading treatment, which are inviolable rights, and cannot be suspended even during a State of Emergency. Law enforcement authorities cannot use section 86(2) to argue that any killings during demonstrations were within the permissible exceptions. You cannot kill unless you have an order of a competent court: The rule applies to individuals as it does to law enforcement authorities.
It is possible that law enforcement authorities are feeling the strain of these restriction on their powers, particularly in response to demonstrations. It is quite possible that this could be one of the so-called “problematic issues” which have been referred to in the state media. Yet, it would be most retrogressive if the gains made in trying to eradicate the death penalty are derailed by any amendments to section 48. If anything, section 48 should be amended to completely remove the death penalty for men since in any event the provision is very discriminatory.
Constitutional safety-valves
Thankfully, the Constitution contains robust protections against willy-nilly amendments to the Declaration of Rights. When the Constitution was being written, one of the key issues uppermost in the minds of the drafters was to ensure strong protective mechanisms for the Constitution and in particular, the Declaration of Rights. Reading the Herald and the comments made by government and party officials on constitutional amendments, it is apparent that they are oblivious of the hurdles that stand in the way of making the amendments which they are contemplating, particularly in respect of the Declaration of Rights. The only requirement they seem to be familiar with is the two thirds majority needed to amend the Constitution, which ZANU PF boasts of in Parliament. Yet, the reality is that the new Constitution contains more safety-mechanisms beyond the two thirds majority requirement.
Section 328 deals with the process of amending the Constitution. First, it takes a considerable amount of time before a Constitutional Bill is passed into law. For a start, the Speaker must give at least ninety days’ notice in the Government Gazette showing the precise terms of the Bill. There must be a public consultation to gather views of the people on the proposed amendments. Both oral and written submissions can be made in respect of the Bill. In the case of a Bill which seeks to amend the Declaration of Rights, once it has been passed by two thirds majority of both the National Assembly and the Senate, it has to be submitted to a referendum so that voters can decide. These provisions were designed to maintain the spirit of the constitution-making process, during which the public was consulted extensively to inform the process. If they were involved in the constitution-making process, then they must be involved in the amendment process and in the case of fundamental rights, they must approve the amendments.
Further protection is provided by section 328(9) which states that the amendment procedure can only be changed by following the same procedure used for amending provisions of the Declaration of Rights. In other words, section 328 can only be amended by putting the question to a referendum. This safety mechanism was designed to ensure that a ruling party could not change the robust mechanisms for protecting the Declaration of Rights by simply amending the amendment provision using its two thirds majority in Parliament.
An additional safety mechanism is the rule that any amendment to the Declaration of Rights must not be to reduce existing rights but to improve them.
It is clear that the government will have a series of hurdles to surpass before it can make any amendments to the Constitution and in particular, to the Declaration of Rights. However, the noises coming from the corridors of power are ominous. They already signal serious intent on the part of government to start mutilating the Constitution, just like it did with the Lancaster House Constitution between 1980 and 2013. Whenever the Supreme Court passed decisions which the ZANU PF government did not like, it simply went to Parliament where it used its majority to amend the Constitution and reverse the judicial decisions. Unsurprisingly, in 33 years, the Constitution had been amended 19 times.
Now, during its formative years, the ZANU PF government is already making moves to amend the Constitution, which is really an infant. The difference is that the 2013 Constitution has more safety mechanisms to protect itself against ill-considered and rushed amendments. Any amendments will be fought within the Constitution itself, in Parliament (despite the weak minority), in public consultations and more importantly, at the referendum and in the courts of law. The government will find that amending the Constitution won’t be as easy as it was before 2013. Still however, Zimbabweans must remain vigilant.
waMagaisa
