via The Experience of Zimbabwe 21 November 2014
I am not a lawyer or a Jurist and I count it a great privilege to be asked to speak to this subject at this particular gathering of the legal elites of Africa. I am an economist, businessman and politician who is also one of the many millions of people who have chosen to make Africa their home and who hold the fundamental interests and concerns of Africa in their hearts.
The Constitution of Zimbabwe has gone through a series of revisions since Independence in 1980. We started our history as an Independent African State with a Constitution that was crafted in London and used to manage the end of a civil war and the subsequent transfer of power from the previous settler regimes to a new majority Government. This Constitution was based on the so called Westminster model and included clauses designed to protect minority interests for a set period of time.
In the following two decades, the Constitution was amended 19 times; in each amendment the power of the Head of State was gradually enhanced and the protective clauses removed. The consolidation of power at the center of the State reduced accountability and in 1995 demand began to emerge calling for constitutional change. This resulted in a Commission of Enquiry in 1998/99 and the preparation of a new Constitution which was put to a national referendum in February 2000. The referendum was defeated and a struggle for power ensued which culminated in 2008 in the negotiation of a “Global Political Agreement” which then led to a Government of National Unity in 2009.
The GNU was intended to agree and implement reforms among which was a resumption of the constitutional debate. In 2013, this culminated in the adoption of a new Constitution in a national referendum held in March. This time the new Constitution received overwhelming support and was signed into law by the State President shortly thereafter.
The resulting document is the first real attempt to craft a Constitution that is truly African and Zimbabwean in character. It runs for 151 pages and provides for a strong declaration of rights, a devolved State and the usual three central pillars of the State – the Executive, the Judiciary and Parliament. The latter is bicameral with a Senate and a Lower House.
To give life to the new Constitution some 420 Acts of Parliament require amendment and of these over 220 represent substantial changes to our body of legislation. In the past year only three of these required amended Acts have been brought to the House of Assembly and dealt with and there is an urgent need to accelerate this process in order to give life to the new Constitution. In the interim the adage that the Constitution is the supreme law of the country assumes ascendancy where there are disputes and this is being dealt with on a case by case basis by our new Constitutional Court.
Clearly, there is a great deal more to the management of a process of Constitutional change than simply instituting a national dialogue to agree principles and then to assign responsibilities for crafting the necessary drafts and then seeking national approval. Once this process is concluded we have to align our existing laws to the new dispensation and this process is fraught with dangers and difficulties.
In Zimbabwe this process is made much more difficult by the absence of any common vision for the State and fundamental differences between the ruling and the opposition political Parties. We are a deeply divided society and it’s by no means certain that the implementation process of the new constitutional dispensation will be managed so as to implement the Constitution in both the spirit and the letter of the law. The enactment of a new Electoral Law in the recent past, illustrates this point as it does nothing to remedy the weaknesses in past legislation or to reflect the clear intentions of the new Constitution.
This raises the next issue, which in my view is the whole question of how African States implement and administer the rule of law. Judged by our Constitutions, most African States have a perfectly acceptable basic legal framework. However when closely examined, the realities on the ground are far from this reality. We appoint our Judges on a political basis and then subject them to patronage and undue influence. In Zimbabwe the new Constitution makes provision to try and find a remedy for this by changing the whole basis on which Judges are nominated and selected. Already this is impacting on the selection and appointment of people to vacancies on our bench.
Then there is the aspect of how the Judiciary should be funded and how their remuneration should be established. If we are going to expect the Judiciary to act independently and with integrity, they must be funded adequately and without any undue influence or pressure. Tenure rights are also critical. These are usually covered in our Constitutions but they are not reflected in our budget processes, allocations and procedures.
In Zimbabwe failures in this sphere have resulted in a Judiciary where they have made decisions and rulings in recent years which have undermined human and political rights, property rights and contract law. In addition corruption at lower levels in the Magistrate Courts has become endemic as Court Officers are very poorly paid and supported. It is possible to buy a decision in the lower Courts which flies in the face of the law and the facts. Confidence in our Courts is at a low level and is undermining our society and our economy.
The rule of law is not an optional extra for a developing State; it is a sine qua non for development and progress. To achieve this we need a number of elements to be in place:
First, we need to achieve what we have already done which is to ensure that our national Constitutions meet our basic needs as nations.
Secondly, the need to give legs to the principles enunciated in our national Constitutions in the form of legislation that actually gives life and form to the principles embodied in the Constitution in our societies.
Thirdly, we need to establish a professional, well trained and experienced Bench to govern and give expression to our laws in resolving the conflicts that govern our daily lives. These men and women are at the pinnacle of our systems of law and must be properly remunerated and secure and well serviced in their places of work.
Fourthly, we need to ensure that attention is paid to the provision of justice in time. All too often our Prisons are packed with people on remand, sometimes for years. Judges and Magistrates must pay greater attention to the productivity of their Courts, decisions which take months or even years to be handed down, cases that take months to reach a conclusion. Justice delayed is Justice denied.
Finally, we need to create a national consensus around the issue of respect for the Constitution in society. Constitutionalism has a critical role to play in our pursuit of the creation of a decent, honorable society. In the United States there is a widespread understanding and knowledge of the Constitution. This begins in school with the teaching of the Constitution as the basic law of the country. New citizens are required to have a basic understanding of the Constitution.
Legislators must all have an understanding of the supreme Laws of the State. They should ensure that these laws are respected in the enactment of laws and in the way the affairs of State are administered. The Head of State and all his entourage must be seen to be respecting and obeying the national Constitution. They must lead by example.
Where the domestic legal system falls short in terms of protecting and implementing the Bill of Rights in the Constitution, there must be provision for recourse to a higher Court – in this case regional Courts of Appeal or Regional Tribunals. In the land cases that have bedeviled the Zimbabwe situation since the State began forcibly taking over commercial farms in Zimbabwe, the domestic Courts have consistently failed to deal with the issues properly and when those whose basic rights had been abused turned to the Regional Tribunal in Windhoek and secured a decision in their favour, regional leaders responded by suspending the Tribunal only to reinstate it at a later date with specific restrictions to their mandate so that individuals can no longer seek redress at that level.
International legal decisions have not been that helpful nor contributed significantly to the restoration of the security of property rights or justice except in so far as they have allowed those affected to recover some recompense from the sequestration of State assets – for example the recent sale of a diplomatic property in the Cape Province and the seizure of $45 million in proceeds from diamond sales in Belgium.
The search for justice in respect to gross violations of human and political rights in Zimbabwe, including genocide, torture and violations of electoral rights has not played a significant role in the resolution of our crisis. The Constitutional premise is that the Judiciary are the custodians of the law in our society and have the right and the responsibility to speak into our situation with both authority and the force of law. The reality is far from this position and the silence of our Judges on these critical issues is deafening.
In those few cases where the ICC in Europe has tried to deal with violators under international law, the record is dismal – two cases finalized in 20 years at a cost of millions. It is self evident that when the Rwandese chose to deal with the thousands of cases of gross violations of human rights that occurred during their genocide, that they turned to their tribal and traditional Courts for Justice. The danger is that if Zimbabweans cannot look to our Courts for Justice in their struggle for democracy and freedoms that they might eventually take to the streets for progress.
In so far as women’s rights are concerned, Zimbabwe has a strongly paternalistic traditional system that treats women as minors in legal terms, all their lives. At Independence in 1980, the Government made it clear that they were going to espouse the principle of gender parity and gender justice. However in the 34 years since, little has been achieved in terms of actually changing the position of women in traditional society or even in the modern sector.
The new national Constitution has taken this issue by the horns and has stipulated that gender parity should apply in all State institutions and made provision for a special, time limited, women’s quota in the House of Assembly. As a result we suddenly have near parity in both Houses and this is having a profound impact on both the character and the work of Parliament.
I have no doubt that Constitutional provision in this instance has made an immediate and significant contribution to achieving real change in our wider society. As we revise existing legislation this new factor in Parliament is going to ensure that the principle of gender justice spills over into our wider society through legislative change.
The Judicial system could further strengthen this initiative by seeking similar goals in terms of the composition of the Bench. An increase in the number of professional women on the Bench of our senior Courts and in the Magistrates Courts would further assist in that they would enforce gender issues in the home, the economy and society in general.
Finally let me speak about the rule of law and the administration of elections in Zimbabwe. The SADC has clearly set out, in various protocols, the basic guidelines that should apply to all elections within the region. In the case of Zimbabwe these are flouted on a regular basis with the danger that our people are beginning to think that participation in the democratic process is a waste of time. This is reflected in reduced participation in elections and a decline in the quality of candidates seeking election to our local and central authorities.
In 2002, in the national elections for President in Zimbabwe, the elections were subjected to serious manipulation and distortion with hundreds of thousands of voters denied the vote. The South African Government had the election investigated by senior Judicial officers who made a report to the President, which should have been made public. To this date (12 years) it has been held under lock and key by the South African authorities and successive applications to the Courts to have it released have failed.
Inside Zimbabwe the losing candidate, Mr. Morgan Tsvangirai, took the election to the Supreme Court and the Judge who presided over that case has yet to hand down his Judgment. You can put what interpretation you want to these happenings but the reality is that we are convinced that Mr. Tsvangirai should have been declared the winner and sworn in as President and was not. Justice was denied and democracy cheated.
The 2005 elections were heavily manipulated and rigged and it again proved to be impossible to secure any sort of coherent legal opinion on the elections from local Courts. In 2013 the elections were macro managed by the Military and even the ruling Party was surprised and shocked by the results. Even so an upfront fee was demanded by the Court designated to deal with the objections and this resulted in the great majority of cases being abandoned.
The electoral roll which should have been released to the participating parties was kept under wraps and to date has not been released despite applications to the Courts.
The list of electoral infringements is a long one and the legal issues are clear and yet those who wish to challenge the Government on these matters simply find that legal recourse is impossible and even if it was, it would be very costly. The struggle to correct these problems and to strengthen our democracy would be assisted enormously if our Judges would take these issues on board and make resolutions on just what was needed to rectify the shortcomings in our electoral system.
Finally, let me conclude by saying that in my view, the rule of law and the need for a new spirit of constitutionalism is critical to the welfare and growth of the African continent. It is perhaps one of the most important single building blocks that will secure the foundations of the modern progressive and productive States we are constructing.
Unlike the other two pillars of the State – the Executive and the Legislature, the legal process is very largely an intellectual one, requiring the application of our best minds and men and women of integrity and wisdom. In a fragile State like Zimbabwe where we have recently been through a near total collapse of the State, one thing I can ascribe to is the importance of our professions – the accountants, engineers and perhaps most of all, our lawyers, advocates and Judges. Your burden is to play your part in this complex world by carrying out your calling and profession in a manner that will strengthen governance and equity and our faith in our institutions as citizens.
There is no part of our lives that will not benefit from your attention to applying the rules and principles of modern law to the way we are governed and our democracies are managed.