Tracking the history of Constitutional Amendments in Zimbabwe since the days of Robert Mugabe has confirmed that the process has largely an affair of consolidating power in the hands of the ruling elite.
This was achieved by a constitutional scheme that strengthened the powers of the executive against the other two arms of the state and by giving constitutional status to strong views held by the executive. The latter point is evidenced by a series of amendments meant to reverse decisions of the Supreme Court merely to impose the strong views of the executive. In the executive presidency, the framers found an effective devise to undermine traditional checks and balances utilised by most democratic governmental systems.
It is striking that these amendments were not subjected to public debate. The mere say-so of the executive was sufficient to justify fundamental political changes. As a consequence, political
intolerance became a driving force in constitutional reform. This is a recipe for disaster: a constitution must be able to outlive the political emotions of the day.
The surest way of achieving this is to subject constitution-making to an open and broad people-centred process transcending partisan political interests.
This is the lesson to be learnt from the haphazard and partisan constitution-making process of the period examined in this article.
Amendment I (1981): Black Advancement or Affirmative Action
This amendment was effected by Act No.
27 of 1981. It may appropriately be described as a “black advancement or affirmative action” amendment. The original Lancaster House provisions required appointees to the Senate Legal Committee and the Judicial Service Commission to be lawyers of not less than seven years experience.’3 The new government immediately realised that few blacks had the requisite number of years of experience to qualify for appointment and yet it was imperative in the new political dispensation for blacks to be appointed to key institutions.
Amendment 2 (1981): Establishment of Supreme Court and High Court
This amendment was effected by Act No. 25 of 1981. Before this amendment, the highest court in Zimbabwe was the High Court, which had two divisions: the Appellate Division of the High Court and the General Division of the High Court.15 The amendment merely created two courts from one, with the Appellate Division beir g transformed into a Supreme Court while the General Division became the High Court. There was no change of substance and the motivation for the amendment must have been to create a new look court consistent with the practice of other countries.
Amendment 3 (1983): Abolishing Dual Citizenship
This amendment was effected by Act No. 1 of 1983. Although it dealt with other issues, its most far reaching provision was on dual citizenship.
Amendment 4 (1984): Strengthening the hand of the Prime Minister vis-avis the non-executive President
The Lancaster House Constitution provided for a parliamentary executive system of government headed by a Prime Minister and with a non-executive President as head of state. The framers devised a system whereby the nonexecutive President, while largely acting on the advice of the Prime Minister, retained some discretionary powers in relation to certain specific issues.
Amendment 5 (1985): Provincial Governors
This amendment dealt with a new political institution in the form of provincial governors. Provincial governors were not provided for in the Lancaster House Constitution. The amendment inserted a new section 111 A in the Constitution which stated that “an Act of Parliament may provide for the appointment by the President of governors for any areas within Zimbabwe”. It did not specifically refer to “provincial governors” and was worded in such a way as to permit the appointment of district and/or regional governors.
Amendment 6 (1987): Abolishing the Reserved Seats for Whites
Among the most notorious provisions of the Lancaster House Constitution were those clauses that preserved the privileged status of the white population. The constitution provided for two voters rolls: a “white roll” on whom were registered white voters and a “common roll” on whom were registered all other voters.43 White voters participated in a separate election in which they elected their own members of the House of Assembly. Twenty seats out of one hundred seats in the House of Assembly were reserved for whites44 while in the Senate, out of forty members, ten had to be white.45 The latter were elected by an electoral college consisting, exclusively of the twenty white members of the House of Assembly.
Amendment 7 (1987): Executive Presidency
This amendment introduced the most substantial change to the governmental system in Zimbabwe. In one swap, the parliamentary executive system of the Lancaster House Constitution was metamorphosed into some obscure system most of whose features exhibited a presidential character.
Amendment 8 (1989): AttorneyGeneral
The most substantive portion of Amendment 8 dealt with the office of the Attorney-General. In the Lancaster House Constitution, the Attorney-General’s office was purely professional. Making the Attorney-General part of the Public Service was intended to create a nonpartisan official. Amendment 8 made substantial changes to this notion of the Attorney-General by turning the office, by and large, into a political institution.
This was achieved by making the Attorney-General “the principal legal adviser to the Government and taking the office out of the Public Service”.
Amendment 9 (1989): Abolishing the Senate and introducing a unicameral legislature
The Lancaster House Constitution provided for a bicameral legislature in which Parliament consisted of two chambers, a Senate and a House of Assembly. Amendment 9 abolished the Senate and established a unicameral legislature. The former “House of Assembly” became “Parliament” but with its composition increased from one hundred to one-hundred and fifty members.
Thus, the size of the new one-chamber Parliament was made bigger than its two-chamber predecessor. This raises questions about the intentions of the authors of this aspect of constitutional reform.
Amendment 10: Two Vice-Presidents
This amendment was introduced by Act No. 15 of 1990. Its sole purpose was to make provision for the appointment of a second vice-president. It did not make it mandatory for the country to have two vice-presidents but merely permitted the President to appoint “not more than two Vice-Presidents”.7″ Thus, it left it to the President to decide whether to have one or two vice-presidents.
Amendment 11: First Amendment of the Bill of Rights and Land Reform 1
The Lancaster House Constitution entrenched the Bill of Rights for the first ten years of independence. The entrenchment was in the following form: any proposal to amend the Bill of Rights less than ten years after 18 April 1980 required the approval of all members of the House of Assembly. Amendment 11 was the first attack on the Lancaster House Bill of Rights. It is significant that this first attack was largely directed at section 16 which protects private property. Section 16 had, in the first ten years of independence, been the main obstacle to the new government’s acquisition of land for resettlement for agricultural purposes.
Amendment 12: Service Commissions and Land Reform 2
This amendment was effected by Act number 4 of 1993. Its main focus was on rearranging the Service Commissions. The Lancaster House constitution had purported to settle most questions relating to the organisation and administration of the Public Service, the Police Force, the Prison Service and the Defence Forces. Providing for such issues in the constitution meant that every proposed change to the operational framework of any of these security arms of the state had to lead to a constitutional amendment. The government wanted flexibility in dealing with the security arms and this was achieved by amending the constitution and transferring matters of detail to an Act of Parliament.
Amendment 13: Reversing Supreme Court ruling on death row phenomenon and Land Reform 3
This amendment was effected by Act No. 9 of 1993. The main focus of this amendment was reversing the Supreme Court decision in Catholic Commission for Justice and Peace in Zimbabwe v AG and Others.’03 In that case, the CCJP made an application to the Supreme Court in terms of Section 24 of the Constitution to prevent the execution of four convicted murderers and to have the sentences of death set aside.
Amendment 14: Reversing the Supreme Court ruling in Rattigan and Land Reform 4
This amendment was effected by Act No. 14 of 1996. It had several aspects. The first was a reversal of the Supreme Court ruling in Rattigan and Others v Chief Immigration Officer and Others.’”*
In that case, the three applicants were all Zimbabwean citizens. The department of Immigration had refused their alien husbands permanent residence in Zimbabwe. They sought a declaration that their rights under sections 11 and 22 of the Bill of Rights had been infringed by the refusal of the respondents to permit their alien husbands to reside with them in Zimbabwe. It also held, obiter and in line with its earlier observations in In Re Munhumesol0′ that section 11 of the Constitution was not a mere preamble but embodied substantive rights which included the right to life, liberty, security of the person and the protection of the law.
Amendment 15: Change of Financial Year
This amendment was effected by Act, No. 10 of 1998. It was exclusively a technical amendment which changed the government’s financial year from (1 July to 30 June), to 1 January to 31 December, of each year.
Amendment No. 16 further limited such ‘unjusticiable’ compensation to improvements on land.
Ultimately, Amendment No. 17 was promulgated to oust entirely the jurisdiction of the courts over cases of acquisition of land by the state, thus rendering impotent national and international protections of the fundamental right to protection of the law, a fair hearing, and the independence of the judiciary.
•Amendment No. 17 was also a means for the state to restrict the freedom of persons to move out of Zimbabwe on the vague grounds of alleged public interest, national interests or economic interests of the state.
This was done to circumvent yet another Constitutional Court ruling in Chirwa v Registrar General3, which ruled that such restrictions to freedom of movement were in violation of the Constitution and therefore null and void.