Omar Bennett
Zimbabwe's constitutional development has been marred by a history of violence, electoral fraud, and the prolonged stay in power of the ruling party. The country's constitutional reform can be traced back to the 1979 Lancaster Constitution, with subsequent drafts and amendments being made over the years. The process of constitution-making has often been influenced by the political interests of the ruling parties, with 17 amendments made to the 1980 Charter by the Mugabe regime, solidifying its power. The challenges to constitutionalism in Zimbabwe include the need for democratic governance and stability, the increasing deficit of which has been highlighted since 2000. The country has also faced challenges in conducting free and fair elections, with the ruling party manipulating the electoral system to retain power.
| Characteristics | Values |
|---|---|
| Electoral fraud | High |
| Violence during elections | High |
| Prolonged stay in power by the ruling party | High |
| Political polarisation | High |
| Economic crisis | High |
| Social mistrust | High |
| Lack of literature on decentralisation and constitutional issues | High |
| Lack of public participation in the constitutional amendment process | High |
| Lack of democratic governance and stability | High |
| Authoritarianism | High |
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What You'll Learn
The 1979 Lancaster Constitution and subsequent constitutional reform
The Lancaster House Agreement, signed on 21 December 1979, was a pivotal moment in Zimbabwe's constitutional history. The agreement, reached after a conference in London, outlined a post-independence constitution, pre-independence arrangements, and a ceasefire between warring parties. This agreement marked the end of the Rhodesian Bush War and Rhodesia's Unilateral Declaration of Independence, with the country temporarily reverting to its colonial status as Southern Rhodesia.
The 1979 Lancaster Constitution, as it came to be known, included significant provisions. Firstly, it guaranteed majority rule and enshrined this in the constitution, ensuring no retrogressive amendments could be made without the approval of black representatives in parliament. Secondly, it abolished racial discrimination, providing for an immediate improvement in the political status of the black population. Additionally, it reserved 20% of parliamentary seats for whites for a period of seven years. The constitution also addressed the land question, allowing the new government to purchase land from white settlers, but only from "willing sellers" with compensation.
However, despite these advancements, the Lancaster Constitution faced criticism for its failure to adequately address land reform. The "crucial land question" was seen as side-lined during the conference, and while the Carter Administration promised financial backing for land restitution, land reform was delayed by a decade. Furthermore, the British were accused of protecting "white farming interests" in Zimbabwe.
In the years following the Lancaster Constitution, Zimbabwe continued to face challenges in its constitutional and electoral processes. There were attempts at reform in the late 1990s, with the establishment of the National Constitutional Assembly (NCA) in 1998 and the state-appointed Constitutional Commission (CC) in 1999. However, these efforts were met with limited success, as evidenced by the violent general and presidential elections in 2000 and 2002, respectively. The drafts proposed by the CC and NCA were rejected, leading to a contentious election campaign.
The rejection of the drafts highlighted the need for further constitutional reform. This led to the COPAC-led constitutional reform process, which faced its own challenges. The elite theory of constitutional-making suggests that the procedures and contents of constitution-making reflect the interests of the political elites of that time. Zimbabwe's ruling parties, stemming from former liberation movements, have been accused of manipulating electoral systems to retain power. This has resulted in violence, electoral fraud, and prolonged stays in power, hindering the country's progress towards democratic governance and stability.
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The elite theory of constitutional making
Zimbabwe has had a tumultuous history since its independence, with its politics marred by violence, electoral fraud, and prolonged stays in power by the ruling party. The country has struggled with the transition to democratic governance and economic and social stability.
The elite theory can be observed in Zimbabwe's constitutional history, specifically in the rejection of the Chidyausiku Commission Draft. The draft was contested by the growing opposition, which included the MDC and a coalition of civic societies whose interests were not considered. The ZANU-PF-led government's failure to engage in negotiated dialogue with the opposition elites led to the rejection of the draft. This incident illustrates how the elite theory informs the modus operandi of constitution-making in Zimbabwe, with the democratic theory taking a back seat.
The country's constitutional development can be traced back to the 1979 Lancaster Constitution, followed by the Constitutional Commission's draft of 1999/2000 and the 2001 National Constitutional Assembly (NCA) draft. The COPAC-led constitutional reform process faced challenges due to the political environment, which was influenced by the interests of the political elites.
The elite cohesion theory, an offshoot of the elite theory, explains the adoption of certain documents as working constitutions due to the mutual consensus between interested internecine parties. This theory downplays democratic and pluralist theories, emphasizing that constitutional-making processes reflect the fears, aspirations, and interests of the rulers rather than the masses.
In conclusion, the elite theory of constitutional making is evident in Zimbabwe's constitutional development. The country's political landscape has been shaped by the interests of ruling parties, with limited public participation. The rejection of drafts, the influence of political elites, and the adoption of constitutions based on elite consensus support the notion that Zimbabwe's constitution-making processes reflect elite interests.
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The Mugabe regime and its impact on the 1980 Charter
Robert Mugabe, a Zimbabwean revolutionary and politician, served as Prime Minister of Zimbabwe from 1980 to 1987 and then as President from 1987 to 2017. Mugabe's rule began with him being internationally acclaimed as a revolutionary hero who was embracing racial reconciliation. He expanded healthcare and education and, despite his professed desire for a socialist society, largely adhered to mainstream economic policies. However, over the years, his administration became increasingly repressive and brutal.
Mugabe's rise to power was influenced by his anger towards white minority rule in his homeland within the British Empire. He embraced Marxism and joined African nationalists in calling for an independent state. After making antigovernmental comments, he was imprisoned from 1964 to 1974. Following his release, he fled to Mozambique, established his leadership of the Zimbabwe African National Union (ZANU), and led its successor, the ZANU-Patriotic Front (ZANU-PF). In 1979, he participated in peace talks in the UK that resulted in the Lancaster House Agreement, ending the Rhodesian Bush War.
In the 1980 general election, Mugabe led the ZANU-PF to victory, becoming Prime Minister as Zimbabwe gained internationally recognized independence. During the first decade of his governance, Mugabe was regarded as a "'demi-god' within ZANU-PF and enjoyed considerable popularity in Zimbabwe, especially in the Shona-dominated regions.
Mugabe's impact on the 1980 Charter, which presumably refers to the 1979 Lancaster Constitution, is not entirely clear. However, it is known that the background to constitutional reform in Zimbabwe can be traced back to this document. The 1979 Lancaster Constitution was followed by the Constitutional Commission's draft of 1999/2000 and the 2001 National Constitutional Assembly (NCA) draft, which proposed important provisions for electoral reform.
The Mugabe regime's legacy is complex. While Mugabe initially promoted racial reconciliation, his calls failed to stem growing white emigration. Relations with Joshua Nkomo's Zimbabwe African People's Union (ZAPU) also deteriorated. Mugabe's writings called for "'command economics in a peasant society, mixed with anti-colonial nationalism,'" which Blair noted was common among African guerrilla leaders at the time. Mugabe argued that Western countries kept African countries in a state of subservience due to their desire for natural resources.
In conclusion, while Mugabe's regime began with a focus on racial reconciliation and expanding healthcare and education, it ultimately became repressive and brutal, contributing to the complex challenges facing Zimbabwe's constitutional development. The country continues to struggle with democratic governance, economic stability, and social mistrust, with some attributing this to the manipulation of electoral systems by ruling parties in former liberation movement governments.
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The role of the judiciary in entrenching constitutionalism
Zimbabwe has faced several challenges in its journey towards constitutionalism and democratic governance. The country's history has been marred by political polarisation, economic crisis, social mistrust, and a prolonged stay in power by the ruling party. The 2000 elections, which followed the rejection of a draft constitution, were particularly violent and contentious. This highlighted the urgent need for constitutional and electoral reform.
The judiciary plays a pivotal role in entrenching constitutionalism in Zimbabwe. Constitutional Court Judge Justice Rita Makarau has acknowledged the country's efforts to uphold constitutionalism, specifically citing the timely holding of harmonised elections in 2023. She emphasised the judiciary's crucial role in driving constitutionalism into the fabric of Zimbabwean society.
The judiciary serves as a guardian of the constitution, interpreting and applying its provisions to ensure compliance with the rule of law. Judges are tasked with resolving disputes and interpreting the constitution impartially, free from political influence. They act as a check on the other branches of government, ensuring that legislative and executive actions do not exceed their constitutional authority.
In Zimbabwe, the judiciary has been instrumental in addressing constitutional challenges and advancing democratic norms. For instance, the judiciary has overseen the establishment of conflict resolution committees (CMCs) in each province to mediate disputes and complaints arising from elections. These CMCs, which include representatives from various sectors, play a proactive role in initiating and sustaining conflict resolution mechanisms, thereby reducing instances of mistrust, intimidation, and violence during and after election campaigns.
However, the judiciary in Zimbabwe has also faced criticism for decisions that appear to entrench authoritarian rule. For example, the Constitution of Zimbabwe Amendment (No. 1) Act, 2013 gave the President the sole power to appoint senior judicial officials without public interviews or recommendations from the Judicial Service Commission. This centralisation of power in the presidency raised concerns about the independence of the judiciary and the potential for executive interference.
Despite these challenges, the role of the judiciary remains essential in entrenching constitutionalism in Zimbabwe. Young Zimbabweans, in particular, recognise the importance of defending the constitution and resisting any attempts to undermine its principles. They view their role as one of protecting the country's fragile democracy and ensuring a peaceful turnover of power through mechanisms like term limits.
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The challenges of democratic governance and stability
Zimbabwe has faced several challenges in its journey towards democratic governance and stability. The country's history has been marred by political polarisation, economic crisis, and social mistrust, which have all impacted the nation's ability to establish a stable and democratic government.
One of the key challenges has been the manipulation of the electoral system by the ruling party, which has resulted in violent elections, electoral fraud, and a prolonged stay in power. In 2000, Zimbabweans voted on a draft constitution that included provisions for electoral reform, but it was rejected, leading to a bitter general election campaign. The subsequent general and presidential elections in 2000 and 2002, respectively, were the most violent in the country's history. Despite holding regular elections, the ruling party has consistently manipulated the system to retain power, undermining the democratic process.
The country's constitution has also been a source of contention. The 1980 constitution, established after independence, was designed to end autocratic rule but preserved colonial-era inequalities, including unequal land distribution and white dominance. This provided the foundation for the Mugabe regime to initiate amendments that consolidated their power. The abolition of seats reserved for the white minority in parliament and the creation of an executive presidency effectively made Zimbabwe a one-party state. The 2013 Constitution, born out of a fight for a people-driven Constitution, was a step towards democracy. However, the current ruling party, ZANU PF, is now pushing for the extension of President Emmerson Mnangagwa's term beyond the two-term limit, further eroding democratic norms and guardrails against the concentration of power.
Despite these challenges, there are positive signs. The judiciary in Zimbabwe has been commended for its efforts to observe constitutionalism, with the religious holding of elections being highlighted as a step in the right direction. Conflict resolution committees (CMCs) and independent electoral commissions have also played important roles in initiating and sustaining conflict resolution mechanisms, reducing instances of mistrust, intimidation, and violence during and after election campaigns. Young Zimbabweans are also recognising the importance of defending the Constitution and resisting constitutional abuse, understanding that it is an act of patriotism and a protection of their present and future.
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Frequently asked questions
Zimbabwe's constitutional development has faced challenges due to the political interests of its rulers, with allegations of manipulating electoral systems, violence, electoral fraud, and prolonged stays in power by the ruling party. The country has also faced challenges in addressing deficits in democratic governance and stability, with questions raised about the transparency, autonomy, efficiency, and fairness of its electoral system.
The judiciary plays a crucial role in entrenching constitutionalism in Zimbabwe, as noted by Constitutional Court Judge Justice Rita Makarau. The judiciary upholds the constitution as the supreme law, ensuring any inconsistent laws or practices are invalidated.
Zimbabwe's history, including its colonial past and the Mugabe regime, has influenced its constitutional development. The preservation of white dominance and land ownership inequality during colonialism provided ammunition for the Mugabe regime to initiate amendments, solidifying their power and contributing to a de facto one-party state.
The shortfalls in Zimbabwe's constitutional and electoral processes have implications for democratic governance and stability. The lack of confidence in the electoral process and stalled constitutional reform create challenges for the country's democratic development.
Zimbabwe has made efforts to observe constitutionalism, including holding regular elections and promoting public awareness of the constitution. The 2013 Constitution outlines rights and freedoms, aiming to build a united, just, and prosperous nation. However, challenges remain, and the country continues to work towards addressing them.
