A new Constitution will not Save Zimbabwe

By Dr Alex Magaisa

The constitution-making season appears to have begun, albeit with squabbles over the notorious Kariba Draft concocted by a collection of politicians sometime in 2007.

When the National Constitutional Assembly (NCA) chairman Lovemore Madhuku protested against entrusting politicians with the constitution-making process, vamwe vakati anorwara nepfungwa (some said Madhuku is mad).

Hopefully, now they respect Madhuku’s right to be “mad” especially if in that “madness” he points to some uncomfortable truths. As Zimbabwe embarks on this admittedly important process, another cautionary note is pertinent.

As a people, we need to look beyond the constitution as the panacea to all our troubles. I notice, with particular concern, what appears to be a pre-occupation with the idea that the crafting of a new constitution will pave the way for a free and fair election, something that has eluded us for a long time.

Underlying this notion is the belief often couched in mathematical formulae that a new constitution will lay conditions for a free and fair election and consequently will help resolve many of our governance problems.

That, to my mind, is naïve and too simplistic a view of politics in Zimbabwe. It shows that we have not yet properly understood the core elements of our problems, which in reality lie beyond the text of the constitution.

Regular readers have heard this before in these pages but it is important that the message be communicated again. It would be a great mistake if we thought that the constitutional issue represents the Alpha and Omega of our national problems and consequently the solutions.

There is something more critical; something that has little to do with the constitution but more to do with the progression and evolution of society as a civilised entity.

The trouble, as I see it, is that a lot that has gone wrong in Zimbabwean politics cannot simply be placed at the door of a defective constitution. These problems have happened not because of but in spite of the constitution. Let us consider a few examples:

First, when the military generals declared that they would neither support nor salute anyone who did not participate in the liberation struggle – participation here being narrowly defined because in reality everyone played a role in that struggle – they were not acting in terms of the constitution.

In fact, they were defying the constitution which requires them to defend it as the supreme law of the land. So, no, you cannot lay blame on the constitution for the conduct of the men in uniform. Their behaviour
cannot simply be explained by the argument that there is a defective
constitution.

Second, when law enforcement authorities abduct or become violent
towards ordinary citizens, it is not because the constitution prohibits people from demonstrating or that the constitution commands the authorities to be violent to ordinary citizens. They do so in spite of the provisions of the constitution which safeguards citizens’ liberty and protection of the law.

Citizens are entitled to seek recourse in the courts of law. The courts of law may pronounce judgment in favour of citizens but that is only half the story. That order will have to be enforced against the state. However, there is no guarantee that the state will obey the order.

As we have seen in Zimbabwe, ministers can choose to ignore the
judgment and absolutely nothing will happen to them. We saw this very
recently when the High Court authorised journalists to cover the COMESA
Summit without the need for registration with the authorities. However, the
authorities chose to ignore the judgment. Can you really blame the constitution for that behaviour? I do not think so.

The constitution does not make people behave badly. And the constitution alone will not stop them from behaving badly.

There is some other cause for their behaviour, beyond the constitutional rules just as there is probably another way of minimising that behaviour that cannot simply be mandated by the law.

This clearly shows us that there is something fundamentally wrong in
the moral fabric of our society or at least, at the leadership level. It is this that needs to be attended to and I confess I do not know how best to do it. But I am not persuaded that the law alone provides answers to these hard
questions.

And I do fear that in trying to deal with our national problems, we often place faith in the law, perhaps too much faith, when in fact the law is one of many facets of society’s architecture that guides our behaviour and attitudes.

We must search for those other facets; for those other elements that can more effectively compliment the law in achieving its purpose. I do not know what these elements are but I like to think there are others better schooled and well-positioned to at least think about these things.

There is something more, beyond having a constitution, that is vital in controlling the behaviour of leaders and their use of political power. It is often referred to as constitutionalism.

The constitution is the national covenant on the way a country is governed but constitutionalism goes further, embracing the culture by which the constitutional rules are created and given full effect. In other words, there is a distinction between on the one hand having a good constitution and on the other hand, the concept of constitutionalism – the culture of obeying the demands of that constitution.

It’s a cultural issue; one that I think grows with the progressive evolution of society. It means that in exercising its powers, the state should not only be limited by law but it must have regard to the generally accepted principles and values of society.

Things should be done not just because the law/constitution demands them but because the principles and values of society compel actors to obey
them. We can use an example here:

Few people may be aware but the British Constitution is largely unwritten. There is no single document which can be said to be the British Constitution. In fact, some governance issues are addressed by way of what are called “constitutional conventions”, which are not necessarily enforceable at law. The question one must ask is: what is it that makes the relevant actors obey these conventions if in fact they do not necessarily impose legal obligations?

We can observe that there is something more, beyond the force of law,
which compels them to obey these long-held conventions. It is this, among
other things, that we must try to grasp: that some things do not require the
force of law; that there are higher values and traditions that are not
necessarily couched in legal terms, which our leaders must obey because they
are right and accepted by society.

The Queen will always give assent to Bills passed by Parliament
because this is an expression of the popularly elected representatives. In
the same way, the President should not use his power to override laws passed by the Zimbabwe parliament. The fact that he does so might make it legal and constitutional but it does not make it right in a democratic context where the majority will must be respected.

We must, as we craft a new constitution, define those general principles and values by which we expect the nation to be governed. These fundamental principles and values include fairness, justice, equality, separation of powers, due process of law, supremacy of the constitution, and many more.

It is in accordance with these values, not just the words of a constitution, that the state must be governed. We should, even in a deadlock over the words contained in a constitution, be able to appeal to those higher values and principles for guidance.

Let us remember that not even the most beautiful words of a constitution will stop election violence. They will not compel the police to act fairly and impartially. They will not make the electoral commission fairer and more impartial. They will not cause ministers to evolve to a stage where they actually obey the orders of the courts without cherry-picking them.

Sometimes we place too much reliance on the constitution but not even
the constitution can save us from the bad things that have happened.