7 ’s Unfulfilled Struggle for a Legitimate Constitutional Order

Muna Ndulo

his chapter is primarily focused on the but also enjoys the allegiance and support need to examine the extent to which of most Zimbabweans. It examines broadly the process of constitution making the constitutional and canT become a vehicle for national dialogue details the numerous efforts to develop an and the consolidation of peace, allowing enduring constitution for that country, pay- competing perspectives and claims within a ing particular attention to the structures of postwar society to be aired and incorporated. the processes that have been employed; the © CopyrightA number of issues affect the by development the of Endowmentscope, nature, and effectiveness of ofpublic par- a country’s constitution, especially when the ticipation in the constitution-making pro- country has undergone some degree of polit- cesses; the relevance of international human theical turbulence.United Nevertheless, States most scholars Instituterights norms in the process;of Peaceand the role the would agree that one issue that stands out, international community can or should play and often bedevils post-conflict societies, is in constitution-making processes in post- how to establish nation states with institu- conflict societies. tions that promote reconciliation, economic Who should initiate a constitution- development, and good governance; facili- making process? For how long should the tate political harmony and stability; manage process run? What kind of forum offers the diversity; process disputes between state and best framework for the process? What are citizens and among citizens; and minimize the mechanisms for maximizing citizen par- the possibility of conflicts through enfran- ticipation? How should the final adoption of chisement of the people.1 This chapter seeks the constitution be organized? We address to examine the experience of Zimbabwe in its these questions and also highlight the main efforts to develop a constitutional order that issues, context, and substance regarding the not only addresses the issues raised above Zim­babwe constitutional process. While rec-

176 Framing the State in Times of Transition 177

ognizing the uniqueness of the Zimbabwean proximately 1830, the Matebele ethnic group, experience, we also attempt to draw common an offshoot of the Zulu nation, established a lessons learned from the process with respect centralized state in the southwestern part of to achieving an acceptable and durable con- modern day Zimbabwe, with as stitution that can foster peace, stability, and its capital. By 1888, , the Ndebele prosperity for post-conflict societies. king, claimed sovereignty over all the terri- This chapter is organized as follows: First, tory that now forms Zimbabwe, including it will provide an overview of the most press- what was known at the time as Matebeleland ing challenges confronting Zimbabwe in and .2 terms of constitution making; second, it will In October 1889, obtained a assess the relevance of international human royal charter of incorporation setting up the rights norms to the constitution-making British South Africa Company3 (BSA). Un- pro­cess in post-conflict societies; third, it der the charter, the BSA was authorized and will summarize Zimbabwe’s colonial history empowered to hold, use, and retain for its as it bears on current governance; fourth, it purposes the full benefit of the concessions will assess the crisis of legitimacy surround- and agreements it had already acquired from ing the 1980 Lancaster House Constitution; African chiefs insofar as they were valid. It fifth, it will assess the failure of the 1999 was further empowered, subject to the ap- constitutional process, its impact on national proval of one of the principal secretaries of reconciliation and the ongoing crisis which state, from time to time to acquire any pow- has resulted in the 2000 and 2008 elections’ ers of any kind or nature whatever, includ- producing a government which lacks both ing powers necessary to govern and preserve national and international legitimacy; and public order.4 In 1890, the Mashonaland part sixth, it will make observations regarding of present-day Zimbabwe was occupied by the international community’s role vis-à-vis British South Africa forces, which founded an individual nation’s constitution-making the capital in Salisbury (now ); in the ­process. The chapter will conclude with a following year, the territory was declared a discussion of the lessons learned from the British protectorate. In 1893, hostilities be- Zimbabwe experience. tween the BSA and the Ndebele led to the © Copyright by the Endowmentoccupation of present-day Matebeleland. of 5 Lobengula was forced to flee, the British theThe UnitedColonial Period States Institutedeclared the Matebeleland of Peace kingdom to be The colonial history of what is today Zim- ended, and the company seized land and cat- babwe bears directly on the political, eco- tle. In 1895, the entire territory was named nomic, and social development of the country Southern . The establishment of and many of its current obstacles to effective BSA and British rule over the territory was democracy. Zimbabwe, formerly Southern fiercely resisted by the African population.6 Rhodesia, was originally inhabited by de- Nevertheless, until 1923, scendants of the great southern migration was administered by the BSA.7 that populated most of present-day Zimba- In 1922, when the BSA’s mandate was bwe and Central Africa. A highly organized about to end, a referendum was held regarding Shona-speaking state developed with a tra- a new constitutional structure and the ques- dition of self-government and independence tion of whether Rhodesia would become part going back to the kingdom of Monomotapa of the union of South Africa. The majority and centered on . In ap- of white settler voters opted for responsible 178 Muna Ndulo

government rather than incorporation into at independence in 1980, the most produc- the Union of South Africa, and Southern tive land remained in the hands of whites, Rhodesia became a British colony. Accord- whose interests were protected by complex ingly, under letters patent (1923), the coun- provisions against compulsory land acquisi- try became a self-governing colony. How- tion for a minimum of ten years contained in ever, the constitution provided for such a the 1979 independence constitution.10 high degree of internal autonomy that South- In 1961, a new constitution provided for ern Rhodesia held a special position among considerable internal sovereignty and, for British dependencies. From 1923, the head the first time, included a justiciable declara- of the government was called prime minister. tion of rights.11 Under the 1961 constitution, Britain retained the power to veto legislation Britain relinquished virtually all its powers as a safeguard of African rights, but never ex- in return for a declaration of rights and a ercised it, though the British government did multiracial constitutional council that was exercise, in theory, a limited restraining influ- charged with reviewing subsequent legisla- ence. Thus, the overwhelming black majority tion in light of the declaration and assur- found themselves governed under the loos- ances that Southern Rhodesia would enter est of imperial supervision by ministers re- a new phase in political and social devel­ sponsible to a legislature elected by the white opment. The 1961 constitution was to be settlers and under the day-to-day control of the first step toward ultimate majority rule, an administration staffed by locally recruited while the newly entrenched declaration of whites. In 1953, Britain formed a federation rights was to ensure the elimination of dis- of Southern Rhodesia, with the two northern crimination, equality before the law, and the territories of and Nyasa- protection of the rights and liberties of the land, both of which, unlike Southern Rhode- individual.12 sia, were administered as colonial protector- However, the declaration of rights suf- ates. The federation failed as a consequence fered two notable omissions from the tra- of the conflict between the growing African ditional list of : the right to nationalism in the north and the hesitant and the right to free white reformism of the South. In 1963, the choice of employment. Even the protections ©federation Copyright was dissolved. The two by northern the that Endowment the declaration granted were rendered of territories soon became largely illusory by a number of careful and states of and . Southern far-reaching exceptions and qualifications. Rhodesiathe remainedUnited a self-governing States colony In Instituteseveral sections, the legislature of Peace was given and was not to become independent until af- the power to derogate in normal times from ter a protracted liberation war. the rights and liberties for stated purposes, The issue of land ownership, which re- such as the exercise of police powers.13 A mains a matter of bitter dispute, has its roots major weakness of the 1961 constitution was in the BSA’s expropriation of 39 million that it exempted all preexisting laws from hectares of land from indigenous people, the need to comply with the declaration of without compensation.8 In 1930, the Land rights.14 Consequently, all the existing ma- Apportionment Act formally introduced the chinery of repression and discrimination principle of racial discrimination into land was safeguarded. The constitution was fatally allocation by, among other things, assigning flawed, however, in that its franchise provi- 50.8 percent of the land to the sole occupa- sions supposedly enshrined the principle of tion of whites, who comprised less than 25 unimpeded progress to majority rule, but in percent of the population.9 This meant that practice, the educational and economic re- Framing the State in Times of Transition 179

quirements for voting all but guaranteed a The majority of the Southern Rhodesian ju- permanently subordinate role for Africans.15 diciary continued to recognize the legality During this period, the Southern Rhodesian of the Smith regime and ignored the privy government enacted and used increasingly council decision. The unilateral declaration repressive security legislation.16 In particular, of independence succeeded and lasted fifteen the government extensively used the 1960 years. It did so largely because while the in- Law and Order Maintenance Act, which ternational community condemned Smith’s provided for preventive detention.17 unilateral declaration of independence, it On November 11, 1965, the Rhodesian did not take any positive action to end the government, led by , declared rebellion.23 unilateral independence against the British In 1970, the Smith regime purported to government and adopted the 1965 consti- adopt a republican constitution, which pre- tution.18 The British government responded cluded any prospect of majority rule.24 The by making drastic changes to the 1961 con- constitution had a declaration of rights, but stitution and declaring null and void and of rendered it ineffective by providing that “no no effect any law passed or promulgated by court shall inquire into or pronounce upon the illegal Smith regime.19 It also revoked the validity of any law on the ground that the legislative power of Southern Rhodesia’s it is inconsistent with the Declaration of legislative assembly, enabled the British par- Rights.”25 Further, the bill of rights did not liament to legislate for Rhodesia, and con- outlaw discrimination.26 From 1970 to 1979, ferred executive power in Rhodesia upon the the Smith regime’s violation of human rights British secretary of state for commonwealth was systematic and widespread: Captured relations.20 The Southern Rhodesian courts, and suspected guerrillas—as well as their however, recognized the Smith regime as supporters—were mercilessly tortured to ex- valid. In 1966 and 1968, Southern Rhode- tract confessions and information. The viola- sia’s high court ruled that although the uni- tion of human rights was a deliberate tactic lateral declaration of independence and the aimed at intimidation and deterrence.27 1965 constitution were illegal, the revolution Organized African resistance to white had achieved internal success and the Smith rule began around 1947 with the establish- © Copyrightregime was the only effective by government the Endowmentment of the African Workers Voice of Associa - in Southern Rhodesia; therefore, necessity tion, which was an important forerunner to demanded that the de facto government be the African nationalist groups.28 The orga- theendowed United with all the power States of its predeces- Institutenization was banned of in 1952, Peace but in 1957, sors under the 1961 constitution. In another the first African nationalist party, the Afri- decision in 1968, the high court finally gave can National Congress (ANC), was formed the regime de jure recognition based on the with as president. The ANC argument that not only was the government was likewise later banned, as were its succes- in effective control, but there were no pros- sors, the National Democratic Party (NDP) pects that any actions by the mother country and the Zimbabwe African Peoples Union would alter that condition.21 Matters came to (ZAPU). In 1963, a split emerged in the a head in Madzimbamuto v. Lardner-Burke.22 nationalist movement with the founding Here, the judicial committee of the privy of the Zimbabwe African National Union council upheld the right of the UK parlia- (ZANU). Both ZAPU and ZANU launched ment to exercise unfettered legislative power armed struggles, but it was not until 1980 over Southern Rhodesia and to deny all legal that this finally led to independence.29 In the validity to the actions of the Smith regime. 1970s, both ZAPU and ZANU forces inten- 180 Muna Ndulo

sified the armed struggle within the - coun zorewa regime, which Ian Smith had in- try.30 With the continuing success of the stalled in Zimbabwe, and call for the lifting struggle and international pressure, in 1978, of sanctions against Zimbabwe. The British the Smith regime was forced to seek an in- government was aware that the frontline ternal settlement with a number of compliant states could not provide the kind of support African leaders.31 As a result, a new consti- the liberation movements needed to continue tution for the renamed Zimbabwe-Rhodesia the liberation war. Further, the states were was introduced.32 The unhappy with the provisions relating to the failed largely because it lacked legitimacy nature and extent of executive powers, the or- and did not end the war, which was clearly ganization of the legislature and the judiciary, intensifying, and it equally failed to receive and the general protection of racial interests any international recognition. in the bill of rights, including guaranteeing Thus, in 1979 an all-party constitutional a voter roll for the white population.36 Even conference was held at Lancaster House in so, the most remarkable feature of the Lan- from September 10 to December caster House conference was that it produced 21, at which an independence constitution a settlement that led to a peaceful transition was agreed.33 The conference followed a to majority rule. Southern Rhodesia reverted commonwealth heads of government meet- to being a British colony, and a British gov- ing in Lusaka, at which it was agreed that ernor was installed to run the country until Britain was responsible for granting legal independence.37 ZANU won the elections independence to Zimbabwe. The conference that followed, and Zimbabwe became an in- was attended by delegations from ZANU led dependent state on April 19, 1980. by , ZAPU, led by Nkomo, The new majority government adopted and the Zimbabwe-Rhodesia government, a policy of reconciliation toward the white which included Ian Smith’s population and its black rivals. However, it and Muzorewa’s United African National retained the state of , which the Congress. The conference was organized and Smith regime had announced in 1965 before negotiations mediated by the British gov- the declaration of unilateral independence; ernment under the leadership of Lord Car- this continued until 1990, along with all the ©rington. Copyright The constitutional negotiations by thedid repressive Endowment security laws inherited from of the not provide for public participation. previous regime.38 Shortly after indepen- The new constitution provided for a cer- dence, violence erupted in Matebeleland. emonialthe president,United a prime minister, States and a Emergency Institute powers were widelyof usedPeace to quell bicameral legislature consisting of elected the violence, including both preventive de- members of parliament and an indirectly tention laws and restrictions on movement. elected senate. The legislative chambers A special unit sent to the area, known as the were to be elected on two race-based rolls. fifth brigade, was responsible for perpetrat- Executive power was to reside in the prime ing widespread human rights violations. minister, assisted by a cabinet chosen by the The problem was ended in 1987 by a unity prime minister.34 The liberation movements agreement that led to ZAPU being merged39 (ZANU and ZAPU) were virtually forced to into ZANU, giving the ruling party an over- accept its terms, including the restrictive land whelming parliamentary majority.40 Not un- acquisition provisions.35 Lord Carrington’s til the late 1990s did a viable new political strategy was to push for an agreement; he party, Movement for Democratic Change warned that if there was no agreement, the (MDC), appear on the scene to seriously British government would recognize the Mu- challenge ZANU’s dominance. However, as Framing the State in Times of Transition 181

the economy has declined, opposition to gov- eral, and all the provincial governors without ernment has increased. From the 1990s to consulting the other parties that are mem- date, Zimbabwe has experienced a total col- bers of the Unity Government.46 lapse of its economy and widespread human rights abuses as the government has sought to remain in power by any means.41 By 2009, Constitution Making: The Challenges Zimbabwe had the highest inflation rate in in Zimbabwe the world, and its economy had shrunk by In 1980, after ninety years of colonial rule almost a third.42 Two recent examples that and decades of armed struggle against a white highlight the human rights abuses and the minority government regime, modern Zim- regime’s determination to stay in power are babwe inherited a constitution, which was a the breach of electoral laws by the govern- result of a negotiated settlement at Lancaster ment in the 2008 elections and the manner in House in London.47 The Lancaster House which ZANU PF has continuously violated constitution-making process was dominated the Global Political Agreement to further its by the British government, which was asso- interests. The mediation between ZANU PF ciated at the time with the minority govern- and MDC under the supervision of Presi- ment of Southern Rhodesia.48 A majority of dent led, among other things, the liberation movements perceived the con- to the amendments of the Electoral Act in stitution as unsatisfactory, as it lacked popular Zimbabwe.43 Section 110 of the Electoral participation and contained unsavory provi- Act provided for a runoff election within sions. The liberation groups believed that a twenty-one days of the announcement of the new constitution was needed to consolidate results if no single candidate managed to ob- a democratic state in Zimbabwe once in- tain 50.1 percent of the total votes cast in a dependence was achieved. In significant re- presidential poll. When ZANU PF realized spects, Zimbabwe’s 1980 constitution contin- that they had lost the 2008 election and that ued the colonial legacy in the sense that some there was a high probability of losing the run- of its provisions maintained the economic off election as well, they delayed announcing status quo. Immediately after the Lancaster the presidential election results by more than House constitution was adopted, elections © Copyrightthree weeks and, instead of holdingby electionsthe Endowmentwere held and a populist government of led by within the stipulated twenty-one days, held ZANU was elected to power: ZANU won the election three months later. The delay fifty-seven seats, ZAPU twenty seats, ANC thewas designedUnited to allow ZANU States PF to purge Institutethree seats, and the Rhodesianof Peace Front all the the electorate of opposition support. Massive twenty seats reserved for whites. violence and killings were inflicted on oppo- Although a constitution is primarily a le- sition supporters, forcing the MDC to with- gal document, it is at the same time a politi- draw from the elections.44 On the current cal charter, particularly when it is expected government of national unity, ZANU PF has to enact far-reaching change in the political acted in bad faith before and after signing the and economic structure of society. Unfortu­ Unity Agreement. President Mugabe went on nately, the Lancaster House Constitution did to appoint permanent secretaries unilaterally, not create the potential for the necessary without consulting the other parties that are ­institutional change—not merely the insti- members of the government, in contraven- tutions in the political realm, but also the in- tion of the Global Political Agreement.45 In stitutions that govern the way the economy addition, the president unilaterally appointed functions and influence productivity and the reserve bank governor, the attorney gen- eq­uity. The Lancaster House Constitution 182 Muna Ndulo

itself failed to serve as a framework for lo- accessible to the people without compro- cal political and economic actors to negotiate mising the integrity and effectiveness of the the transformation from a colonial state with process. great economic disparities to a more equi- In Zimbabwe, a serious search for viable table Zimbabwe, largely because it contained constitutional arrangements must begin with entrenched provisions, which ensured certain the frank recognition of the specific prob- policies could not be changed until a speci- lems confronting the country. Foremost is fied time.49 As a result, the basic structure of the need for sufficient national unity or co- Zimbabwean society, especially as it related hesion to generate social and political power to land ownership, remained the same. As strong enough to enable the diverse peoples protests mounted regarding the govern- that make up Zimbabwe to achieve a level ment’s corruption and failure to improve the of well-being and development beyond their quality of life for the majority of Zimbabwe- reach as separate units. Any constitutional ans, the government became undemocratic structure adopted in Zimbabwe likewise and authoritarian, increasingly centralizing needs to accommodate the ethnic diversity of power in its attempt to stay in office. The the country. The issue of ethnicity could po- attributes of the Zimbabwean state thus in- tentially destabilize the democratic process; clude the following: a highly centralized sys- democracy could magnify the adverse effects tem of governance; excessive state control of of ethnicity. At the same time, there is the all aspects of human endeavor, coupled with need to accommodate the racial minorities limited capacity to govern; excessive regula- that exist in the country. The constitution- tion of civil society; weak institutions of state making process must deal with all these facts and civil society; few countervailing forces to sensitively, consciously assuming the fears the power of the executive branch; limited and apprehensions of minority groups, meet- participation in governance by the general ing their legitimate demands, and involving citizenry; and preferential access to power them in meaningful ways in the political sys- and resources, often determined by religious, tem and nation building. Zimbabwe cannot ethnic, and geographical considerations. The ignore the disproportionate economic and result has been unprecedented economic de- social importance of public office to individ- ©cline Copyrightand increasing poverty among by ordinary the uals Endowmentin the midst of widespread poverty ofand Zimbabweans. ignorance. A serious search for a viable con- Clearly, the Lancaster House Constitu- stitutional arrangement must respond to the tionthe failed United to gain legitimacy States or provide a need Institute to decentralize power. of It must Peace find the framework for the democratic governance means to eradicate the pervasive inequality of Zimbabwe. The challenge for Zimbabwe of the sexes perpetuated by traditional roles remains how to achieve a stable political and assigned to women. The constitution-making constitutional order that promotes develop- process must also address the question of ment and good governance and guarantees peaceful transfer of power from one leader to citizens government under the another. Several of its neighbors—Zambia,50 regardless of their gender, color, sexual ori- Malawi,51 and South Africa,52—have adopted entation, sex, or ethnic origin. This calls for term limits for presidents to ensure a change the development of political, economic, and of leadership from time to time. The essence administrative institutions for the proper of government is power, and power, lodged governance of the state. The aim should be as it must be in human hands, is always li- to achieve a constitutional order that is le- able to abuse. Limits are therefore essential to gitimate, credible, enduring, and structurally minimize the danger of dictatorship and the Framing the State in Times of Transition 183

development of an oligarchy in a presidential tion.63 The Human Rights Committee states system. that the right to hold opinions without inter- ference permits no exception or restriction.64 The committee also states that the right to Constitution-Making and International freedom of expression includes not only Human Rights Norms freedom to impart information and ideas but It is important to ensure that a constitution- also the freedom to seek and receive them.65 making process relies on international stan- To ensure the full participation of the people dards. This acts as a check on government and in a constitution-making process, all obsta- empowers minorities and other stakeholders. cles to individual participation in the affairs Democracy involves three central rights: the of the state must be removed. Public partici- right to take part in government, the right to pation not only ensures that the development vote and to be elected, and the right to equal of basic law goes through a process of popu- access to services. The Universal Declaration larization and legitimization but facilitates of Human Rights (UDHR) states that the consensus building. Only under such an at- will of the people shall be the basis for the mosphere will participation be effective and authority of government.53 A number of in- contribute to the development of a durable ternational instruments reflect the principal and widely acceptable constitution. To that concerns underlying governance, including end, as Thomas Franck has argued, the idea the right of peoples freely to determine their that only democracy validates governance is political status,54 the right of all elements an emerging norm.66 A corollary norm may of society to participate actively in defining also be emerging that only a democratic and achieving developmental goals,55 and ­constitution-making process validates a con- the right of all people to participate in the stitution. Governments increasingly recognize political life of their country. Thus, interna- that their legitimacy depends on meeting the tional instruments for promoting and pro- normative expectations of the international tecting human rights within the UN system community and their own citizens. are replete with admonitions that popular political participation must be free.56 While © Copyrightsuch instruments do not describe by a particuthe- EndowmentThe Postindependence Constitution- of lar methodology for ensuring such freedom, Making Process in Zimbabwe their essence is clear: To be free, participa- The 1979 constitution is commonly referred thetion inUnited the political processes States of a country Instituteto as the Lancaster Houseof PeaceConstitution. It must be conducted in an atmosphere char- contains a justiciable bill of rights, which acterized by the absence of intimidation and recognizes a range of rights, including the the presence of a wide range of fundamental rights to freedom of expression, association, human rights.57 and assembly.67 Beginning in 1980, however, While the UDHR enunciates the rights, the government amended the Lancaster the Covenants elaborate upon each of the House Constitution repeatedly, on the pre- rights, and regional conventions contribute text that it needed to be made more relevant to their protection. Some rights take on addi- to Zimbabwe’s particular situation. In real- tional importance for political participation ity, the amendments concentrated more and purposes, such as the rights to free opinion,58 more power in the executive.68 By the 1990s, free expression,59 information,60 assembly the Zimbabwe constitution, in important and association,61 independent judicial pro­ respects, bore little relationship to the origi- cedure,62 and protection from discrimina- nal 1980 document. Sixteen separate amend- 184 Muna Ndulo

ments, all of which made multiple constitu- In addition to amending the constitution, tional changes, entirely reshaped the docu- the government has resorted to legislative ment. Given the circumstances of its birth, measures to overrule court decisions without some amendments were inevitable and en- any hesitation when it disagrees with those tirely desirable,69 but the same cannot be decisions. When the Supreme Court ruled said of the majority of the amendments.70 in S. v. Juvenile77 to outlaw judicial corpo- In 1989, the constitution was amended to ral punishment of juveniles and, in an obiter shield the president from questioning by and dicta, reached a similar conclusion regarding accountability to parliament.71 Some provi- corporal punishment of school pupils, the sions of the amendment placed the president legislative response of the government was above the judiciary, in that the judiciary was to amend the constitution to permit corpo- denied the right to question the substance ral punishment to be imposed on children by of or the process through which presidential their parents, guardians, and persons in loco decisions were reached.72 The constitution parentis, and on male juveniles convicted of furthermore provides for presidential pow- criminal offenses.78 In September 2000, the ers (i.e., temporary measures) that essentially government intervened in the case of Capi- give the president rule-making ability equal tal Radio (Pvt) Ltd. v. Minister of Informa- to that of the legislature.73 The constitutional tion & Others,79 in which a private radio sta- amendments have sought to limit the juris- tion, Capital Radio, filed suit in the Supreme diction of the courts,74 prevented the Su- Court against Section 27 of the Broadcasting preme Court from hearing a particular case Act. Capital Radio argued that Section 27, relating to fundamental rights provisions, which prohibited the unauthorized posses- and overturned the court’s decisions regard- sion, establishment, and operation of signal ing that case.75 In 1990, in S. v. Chileya, the transmitting stations, contravened Section Supreme Court asked for full argument on 20 of the Zimbabwean constitution, which the issue of whether the use of hanging in guarantees freedom of expression and in- the administering of the death penalty con- formation. The section effectively prohibited stituted inhuman or degrading treatment or privately owned radio stations in Zimbabwe. punishment contrary to Section 15 (1) of the The Supreme Court ruled in favor of Capital ©constitution. Copyright A date was set for theby hearing. the Radio, Endowment80 enabling it to begin broadcasting of as The government’s response was immediate: a radio station. In response, in October 2000, Shortly before the hearing, a constitutional the government promulgated the Presiden- amendmentthe United bill was published Statesthat included tial Institute Powers (Temporary Measures)of Peace Broad- a provision specifically upholding the - con casting Regulations, arguing that the Su- stitutionality of execution by hanging. The preme Court’s decision created a regulatory minister of justice, legal, and parliamentary vacuum. Under the regulations, the govern- affairs informed parliament that any - hold ment created a board consisting of members ing to the contrary would be untenable to appointed by the minister of information, government, which held the correct and which was tasked with issuing licenses. The firm view that parliament made the laws and board declared independent radio stations the courts interpreted them. He added that illegal, ordered them switched off, and had abolishing the death sentence was a matter their broadcasting equipment confiscated. for the executive and legislature, and that the The board promptly proceeded to revoke government could and would not counte- the license that had been issued to Capital nance the death penalty’s de facto abolition Radio as a result of its Supreme Court case, through a legal back door.76 reversing its victory.81 Framing the State in Times of Transition 185

Yet another example of the government’s The Zimbabwean experience highlights defiance of the judiciary was its reaction to the problem of centering the amendment the Supreme Court’s decision in Rattigan and procedure of the constitution solely in the Others v. Chief Immigration Officer and Oth- legislature, even with special majorities, as ers.82 The court declared that a female citizen opposed to providing checks such as re- of Zimbabwe who was married to an alien was quiring constitutional amendments to be entitled, by virtue of the right to freedom of approved in a referendum or by a high per- movement—protected under Section 22 (1) centage of provincial legislatures where they of the constitution—to reside permanently exist. As one political party has dominated with her husband in any part of Zimbabwe.83 the first twenty years of independence, a two- The decision held that to prohibit the alien thirds parliamentary majority has proved of husband of a marriage genuinely entered no practical value to check retrogressive con- into with the shared intention of establishing stitutional amendments. It is arguable that a matrimonial abode in Zimbabwe from re- the ruling party’s overwhelming parliamen- siding in Zimbabwe would place the wife in tary majority demonstrated that it enjoyed the dilemma of having to decide whether to the popular support necessary to pass such accompany her husband to a country other amendments. However, this overlooks the re- than Zimbabwe and live together there or to ality of a dominant one-party state in which exercise her constitutional right to continue the party seeks to exercise complete control to reside in Zimbabwe without him. Within over voting in parliament: The result is that a matter of months, the ruling was extended parliament rubber-stamps all constitutional in Salem v. Chief Immigration Officer and amendments. Further, it is questionable that Others84 to embrace the mobility rights of the all members of parliament are able or pre- citizen wife and the right of the alien hus- pared to undertake a critical and informed band to lawfully engage in employment or view of proposed constitutional changes, es- other gainful activity in any part of Zimba- pecially as such amendments are more often bwe. On December 6, 1996, the Constitu- than not rushed through parliament. tion of Zimbabwe Amendment (No. 14) Act Zimbabweans’ desire in the 1990s for the was promulgated.85 The amended paragraph elaboration and adoption of a new constitu- © Copyrightprovided that by the Endowmenttion arose not only because of the of need to right the inequities of the 1980 constitution nothing contained in or done under the au- but also because, as mentioned above, the thethority United of any law shall be Statesheld to be in con- Institute of Peace travention of sub section (1) to the extent that 1980 constitution had been made increas- the law in question makes provision for (i) the ingly less democratic through numerous imposition of restrictions on the movement or government amendments. As the Zimba- residence within Zimbabwe of any person who bwe Council of Churches (ZCC) succinctly is neither a citizen of Zimbabwe nor regarded stated: “A just system is based on a just con- by virtue of a written law as permanently resi- stitution.” Agitation for a new democratic dent in Zimbabwe, whether or not he is married or related to another person who is a citizen or constitution was spearheaded by the non- permanent resident in Zimbabwe. governmental organization (NGO) com­ munity, which set up the National Consti- However, the effort to undo the court’s de- tutional Assembly (NCA), an NGO-driven cisions proved unsuccessful, as a subsequent constitution-making process comprised of Supreme Court case ruled that the new a number of civil-society organizations, wording did not diminish the rights of the with the collective mission of developing a citizen wife.86 new democratic constitution for Zimbabwe.87 186 Muna Ndulo

Clearly wishing to control the process, the ticipation in the commission’s process on the government responded by establishing its own grounds that, first, the constitution should be constitutional commission, with the major- developed by a constituent assembly along ity of members being its own supporters.88 the lines of the South African model90; sec- The main body of the commission was ond, not all stakeholders agreed to the com- a plenary made up of about five hundred mission as an appropriate method to make commissioners. The substantive work of the the national constitution; third, the exercise commission was to be carried out through of national consensus building on the values nine thematic committees, each with about and provisions of a national constitution could forty-three commissioners. The commission not be done through a process that was ex- adopted nine themes: the nature of the ex- clusive, partisan, divisive, conflict ridden, and ecutive organs of state; citizenship, funda- contested; fourth, the commission’s appoint- mental, and directive rights; separation of ment under the Commissions of Inquiry Act levels of governments; public finance and meant that the process and results were en- management; customary law; independent tirely subject to the president’s powers to re- commissions; separation of powers among ject or modify the will of the people; fifth, the the three branches of government; transi- commission was dominated by members of tional arrangements; and legal matters.89 one political party and was therefore not na- The thematic committees were formed into tional in character; sixth, the fixed period of one hundred provincial teams that held six months to complete the exercise was too meetings in which they received submis- short and inhibited full public participation; sions from the public. The provincial teams and seventh, there should have been legally each had nine members, representing each binding guarantees that the commission’s of the nine major themes examined by the constitutional recommendations, as arrived at committee. While the commission’s secre- through public participation, would be final. tariat provided logistical support, the com- The commission’s opponents considered the mission’s coordinating committee, made up legal framework of the Commissions of In- of about twenty-five commissioners, did the quiry Act91 to be inadequate for constitution substantive organization and management making, as it gave sweeping powers to the ©of the Copyright commission’s thematic work. by thepresident Endowment to alter, revoke, or stop the process, of With the launching of the government’s and therefore, did not guarantee the effec- constitutional commission—and the NGO- tive participation of all stakeholders. Further, sponsoredthe NCA’sUnited decision to boycott States it—two while Institute the act provided for theof commission Peace to parallel processes were under way. The NCA report to the president,92 opponents noted concentrated on both providing civic educa- the act’s failure to oblige the president to tion on the constitution throughout the coun- publish the commission’s findings. This un- try and gathering views on the constitution. dermined the constitution-making process Initially, the NCA spent most of its energy by placing the president in a dominant and on the process of constitutional reform. determinative role rather than a facilitative Later, it turned to the problems of constitu- one.93 Critics also objected to the commis- tional content, discussing in great depth the sion’s gender imbalance.94 kind of constitution the people wanted. It In its work, the constitutional commission sought to develop an alternative constitution developed a program for public participa- to the document that the constitutional com- tion. The commission noted that getting the mission was developing. The NGO commu- views of the public on the kind of consti­ nity and opposition parties rejected any par- tution that Zimbabweans wanted should be Framing the State in Times of Transition 187

done in a manner that was both politically campaign to approve the constitution, it was and scientifically credible.95 It was mindful rejected by 54 percent of the voters. This that how it gathered information would ul- sparked a furious reaction from the govern- timately determine whether the public and ment. Within days, large-scale invasions of the international community had confidence white-owned farms began, headed by so- in the commission’s process and results.96 In called war veterans who were fanatically loyal its program, the commission used several to Mugabe, as well as vitriolic attacks on the sources of information, including written MDC and white farmers. The constitution- submissions, views of constitutional experts,97 making project was abandoned. In September views by individuals and interest groups giv- 2007, a ZANU PF-dominated parliament ing oral submissions before the commission, voted to pass constitutional amendments, and academic publications relating to gov- paving the way for the holding of joint parlia- ernance. The coordinating committee used mentary and presidential elections in March two methods—an open-meetings approach 2008. The elections were held under increased and a scientific approach—to gather infor- levels of violence and human rights violations. mation from the public. The open-meetings Following these elections, the MDC became approach took three forms: public hearings the largest party in the House of Assembly.100 by the commission’s thematic committees at Both Mugabe and Tsvangirai claimed victory various provincial locations, written submis- in the presidential elections. The results were sions to the commission by members of the not released for three weeks. On May 2, the public, and submissions to the commission’s presidential elections were finally announced. Web site. The commission held well over five Neither candidate passed the 50 percent thousand meetings in all fifty-seven districts threshold to be elected in the first round. Vio- in Zimbabwe.98 The scientific method con- lence increased before the scheduled June 27, sisted of a nationwide opinion poll and the 2008, runoff election. On June 22, Morgan administration of a questionnaire to people Tsvangirai, MDC president, withdrew from throughout the country. the runoff, blaming violence and fraud.101 On Clearly, as a result of pressure from civil September 15, ZANU PF and the MDC society, the constitutional commission at- signed a power-sharing agreement under the © Copyrighttempted to ensure public participation by the in the Endowmentmediation of the South African of president, process. But its efforts were defective: That Thabo Mbeki.102 As part of the 2008 Unity the participation mechanism was set up under Government Agreement, the parties agreed thethe InquiryUnited Act99 implied States that there was no Instituteto come up with a new of constitution Peace in 2009. obligation, if the president so wished, to actu- Once a new constitution is in place, the ally publish what came out of it. In the end, in power-sharing government is expected to call November 1999, the commission adopted a fresh parliamentary, presidential, and local draft constitution, which was submitted to a government elections. Already, differences are referendum. On the whole, the draft constitu- emerging on how the process of drafting a tion contained major improvements over the new constitution should proceed. The Con- 1980 constitution. It recommended limiting a gress of Trade Unions, student groups, and president to two five-year terms in office; a civil society are calling for an independent division of executive powers between the commission to lead the drafting of a new con- president and a prime minister; proportional stitution for the country, rejecting plans by the representation; an independent electoral com- government for parliament to spearhead the mission; and no land seizures without com- writing of the new constitution.103 They argue pensation. Despite a vigorous government that issues of national importance will be lost 188 Muna Ndulo

in the corridors of power if parliament con- took an impressive and wide-ranging con- trols the process. On the other hand, the sultation exercise throughout the country, speaker of parliament has appointed a its work and report were undoubtedly tainted twenty-five-member committee of legisla- by the public’s perception that it was a tors drawn from ZANU PF and MDC that ­government-oriented body. Nonetheless, its will oversee the drafting of the country’s new draft constitution did not satisfy the presi- constitution.104 The speaker insists that par- dent.107 Despite prior assurances to the con- liament will drive the writing of the new con- trary, the government gazette a few weeks stitution, as outlined in the power-sharing later published what were termed “correc- agreement signed by the three main political tions and clarifications” to the document.108 parties in 2008. The 1990 Zimbabwe experi- Despite the rhetoric, these “corrections ence illustrates how a government can use a and clarifications” made several significant commission to ostensibly consult with the changes of substance to the draft constitu- people on constitutional reform while in real- tion submitted with the constitutional com- ity ensuring that the government controls the mission’s report explaining how it conducted process. The president’s establishment of a its work. Both the draft constitution and commission in 1999, using his powers under the commission’s report were available to the Commission of Inquiries Act, had two the public. The president’s power to place significant consequences. First, because the before the electorate whatever proposed president appointed the commission’s mem- constitution he wished was made clear fol- bers, he could determine the commission’s lowing a legal challenge to the referendum, size and composition. As a result, the great brought by some commission members on majority of its five hundred members sup- the grounds that the draft constitution had ported the ruling party. Second, establishing not been properly adopted. In rejecting the the commission enabled the president to pick submission, Justice Bartlett in the Zimba- and choose from among the commission’s bwe High Court stated: recommendations, as he was under no obliga- The president is not in my view required to put tion to accept any or all of them. He rejected before the voters a constitution approved by the a number of recommendations, including the Constitutional Commission. He is entitled to ©one prohibitingCopyright land seizures without by com the- putEndowment forward any draft constitution he so wishes of pensation. The work of the hugely expensive to ascertain the views of the voters. It may or may not be considered unwise to make changes commission was also seriously hampered by the Instituteto a document produced by ofa body specificallyPeace its ridiculously unwieldy size, a fact seemingly set up to produce a draft constitution but it is admitted even by the commission’s chair- certainly not unlawful.109 man.105 Why Mugabe deemed it necessary to appoint such a large number of commission- ers is not clear. Seemingly, it was some kind The Failure of the 1999 Constitutional of presidential overkill, designed to ensure a Process and Its Impact on National favorable report. Reconciliation The commission’s final draft was never put Zimbabwe has acceded to a number of inter- to a vote, but was instead forced through at national instruments, including the Inter­ a plenary session in which the chair declared national Covenant on Civil and Political the draft constitution adopted “by accla- Rights (ICCPR), the International Covenant mation,” despite a number of dissenting on Economic, Social, and Cultural Rights voices.106 Although the commission under- (ICESCR), the Convention on the Elimi­ Framing the State in Times of Transition 189

nation of All Forms of Discrimination Human Rights Defenders, entitled Human (CEAFD), the Convention on the Elimina- Rights, highlighted the abuses suffered by tion of All Forms of Discrimination Against human rights defenders in Zimbabwe.115 It Women (CEDAW), and the African Char- noted that since the 2002 presidential elec- ter on Human and People’s Rights (ACHPR). tions, the pressure on human rights defend- A number of other specific commonwealth ers has not only significantly increased but declarations and principles were until recently also developed more subtle and sophisticated applicable to Zimbabwe.110 Under these trea- forms of oppression. The report stated that ties, the government must guarantee equal human rights defenders, including members protection of the law to all persons without of NGOs, lawyers, magistrates, journalists, discrimination and prosecute serious viola- and trade unionists, are constantly harassed tions of the rights enumerated, including and subjected to violence, arbitrary arrest, when the perpetrator is a private citizen. The detention, fiscal pressure, or administrative independence of the judiciary is a cornerstone sanctions. In 2005, in a move condemned of these international provisions. The Zimba- by the and the international bwean constitution provides similar guaran- community, the government demolished the tees. Notwithstanding these frameworks for homes of 700,000 Zimbabwean city dwell- human rights, however, the unprecedented ers.116 President Mugabe claimed that Oper- defeat of the government in the February ation Murambatsvina (Drive Out Rubbish) 2000 referendum regarding whether to ac- was needed to restore sanity to Zimbabwe’s cept the government’s draft constitution ush- cities, which he claimed had been overrun by ered in a rapid deterioration of the human criminals. Human rights activists pointed out rights situation in Zimbabwe111 and ended all that it was no coincidence that opposition government efforts to replace the Lancaster to his rule is strongest in urban areas—and House Constitution of 1980. that in the March 2005 elections, the MDC Since 2000, state-sponsored intimidation, won almost all urban seats.117 As in all previ- arbitrary arrest, , and attacks on the ous , the March 2008 political opposition, independent media, and elections were marred by violence. In the pe- human rights organizations have escalated.112 riod leading to the June 2008 runoff elections, © CopyrightThe government has used itsby supporters the as Endowmentpolitical rallies by the opposition parties of were well as state agents—namely, so-called war virtually not permitted, and in rural areas and veterans, youth militia, police, and the army— high-density areas, attendance at ruling-party theto wage United a targeted campaign States of repression Instituterallies was compulsory. of Opposition Peace party sup- in a bid to retain control. Parliamentary porters were subjected to beatings and had and presidential elections held in 2000 and to flee their homes for safety. As mentioned 2002, respectively, were marred by politically above, this forced Tsvangirai to withdraw motivated violence.113 The government ini- from the election. The elections went ahead tiated a controversial land reform program with only Mugabe as the contestant.118 that sparked illegal occupations of commer- The United Nations Human Rights Com- cial farms by the veterans and other settlers, mittee, charged with monitoring member- resulting in the forced evictions of hundreds state compliance with the ICCPR, noted in of thousands of farm workers, farmers, and 2001 of Zimbabwe 114 their families. Human rights violations that not all of the rights in the covenant have have become commonplace. A 2003 report been made part of domestic law and cannot be of the Observatory of the Protection of invoked directly before domestic courts. Not- 190 Muna Ndulo

withstanding the state party’s policy of thorough tion and to challenge it before a competent legislative review in order to ensure compatibil- and impartial court. In addition, the secu- ity of domestic legislation with the Covenant, the Committee notes the absence of effective in- rity forces and criminal justice system must stitutional mechanisms to ensure systematic im- provide equal protection to all those who are plementation and monitoring of its provisions. victims of violence, and the law should take its course without interference from political The Human Rights Committee expressed authorities. UN Secretary General Kofi An- concern about the increasing trend to enact nan has questioned the Zimbabwean gov- parliamentary legislation and constitutional ernment’s approach to land reform, noting amendments intended to frustrate Supreme that such reform must be credible and legal Court decisions that uphold rights protected and entail adequate compensation to those under the ICCPR and overturn certain laws whose land is being expropriated.123 None- 119 incompatible with it. Similarly, the African theless, the Mugabe regime continues to rule Commission on Human Rights and Peoples’ Zimbabwe and violate the rights of its people Rights has criticized the Zimbabwean gov- for the same reasons that led to the survival ernment. It has stated that, through the use of Ian Smith’s rebellious regime from 1965 of legislation curtailing the rights to freedom to 1980. There has not been concerted inter- of expression, association, and assembly, the national pressure on the regime. To begin to Zimbabwean government has violated the effect meaningful change, the international provisions of the African Charter on Hu- community must insist that the government man and Peoples’ Rights, under which these abide by its constitution and international 120 rights are guaranteed. Further criticism of human rights norms. However, attempts to the government has come from the Inter- censure Zimbabwe have been blocked by Af- national Labor Organization (ILO) Com- rican states whose response has been strongly mittee on Freedom of Association, which in shaped by the history of southern Africa and November 2002 cited Zimbabwe for serious the long struggle to end colonial rule; ex- infringements of the principle of freedom cept for and Zambia, the strong of association and violations of trade union criticism of Zimbabwe by the United States, rights, asking the government to ensure that Britain, and the Commonwealth124 has not ©the principlesCopyright of noninterference by the authe- been Endowment matched by similar statements fromof thorities in the meetings and internal affairs Zimbabwe’s African neighbors. The situa- of trade unions are respected.121 tion is almost a complete replay of the failure theWith respectUnited to the land issue,States Zimba- of Institutethe international community of toPeace deal with bwean human rights groups have observed Ian Smith after he declared independence that, although land ownership reforms are in 1965. needed to address stark inequalities in land distribution and wealth, the crisis in Zimba- bwe is not due to the land problem, but has Constitution Making and the been induced by bad governance and serious ­International Community misuse of power.122 As stated in the African Although it is important that a constitution- Charter on Human and Peoples’ Rights and making process be a local product driven by reinforced by the ICCPR and other binding local stakeholders, the international com- international treaties, the rules providing for munity can play an important role.125 It can compulsory purchase should be clearly set encourage the observance of international out in law, and those affected should have the standards as reflected in international- hu right to voice their opposition to the acquisi- man rights instruments and ensure that the Framing the State in Times of Transition 191

standards are well articulated; provide requi- sons on what to do and what not to do, and site expertise and resources for a successful the commission’s chairperson acknowledges constitution-making process; and help in ca- the value of the experts’ comparative experi- pacity building, knowledge networking, and ence.127 The international community has to sharing of best practices. The international be mindful, however, that in some situations, community should, however, remain mind- foreign experts are brought in to legitimize ful that its role is to support the process; it a flawed process. When this is clearly the should refrain from being prescriptive. This intention, international experts should re- avoids the danger of importing institutions frain from participating. This was, however, without regard for local conditions. For there not the case in Zimbabwe; despite the presi- to be genuine ownership of a constitution, its dent’s heavy hand in the process, there was a making must be geared to the social, politi- genuine effort on the part of the commission cal, and economic conditions of the people to draw on comparative experience. that the constitution is intended to serve. The process should therefore be in the hands of those who live with the result. The influ- Lessons from the Failure of the ence of the international community is less Zimbabwean Constitutional Process likely to be resented when the international Developing an effective procedure to - pre community focuses on the process rather vent those in power from manipulating a than on results, in other words, ensuring constitution-making process is a consider- that the process is inclusive and ensures the able challenge—one that would be helped by participation of all stakeholders rather than articulating the principles and mechanisms advocating a particular result. that govern the process. Such articulation In Zimbabwe’s 1999 constitution-making would enhance the process’s quality and in- process, experts from Africa, the United crease the possibility of its success. The con- States, Asia, and Europe were invited to par- ditions under which a constitution-making ticipate in the constitutional commission’s process is initiated are important. The pro- plenary session, termed an “international cess leading up to the 1980 Lancaster House conference on the Making of Zimbabwe Constitution would have benefited from © CopyrightNew Democratic Constitution.” by126 Thethe -ex Endowmentseparating the constitution-making of process perts gave advice but did not get involved in from the process of securing a cease-fire, as the process itself. At the time of the confer- this would have helped prevent the domi- theence, Unitedthe commission had States completed its col- Institutenant and belligerent ofgroups Peacefrom having an lection of views from the public and the vari- overwhelming influence on producing the ous theme committees were considering their country’s constitution. Such a separation recommendations to the commission’s draft- also enables or simply gives time for public ing committee. The experts presented papers participation where possible, or where there on areas of their expertise to a full commis- is willingness to develop a vision for a future sion meeting and participated in the discus- society. The 1999 Zimbabwean constitution- sions of the various theme committees. They making process failed partly because it came also participated in various meetings sched- about as a government attempt to undercut uled by NGOs. Access to the experience of while appearing to satisfy civil-society as well comparative constitution-making exercises as opposition demands. It was not part of a is particularly useful during a constitution- larger political renewal process. The govern- making process, as it provides a wide range ment also lacked the credibility to spearhead of information on possible options and les- the process, in that civil-society’s demands 192 Muna Ndulo

for constitutional reform in 1999 coincided the population. Moreover, the work of the with the emergence of the first very strong commission must be transparent toward the opposition party in Zimbabwe. Zimbabwe’s population and the international commu- experience demonstrated that when leader- nity; the commission must make public and ship resists change and openly engages in expert consultations meaningful and prop- repressive practices to prevent public discus- erly structure its methods to ensure effective sion of reforms, it has already squandered the participation by all stakeholders in the coun- public’s goodwill toward believing that con- try. These factors are important to maintain stitutional change is genuine. the process’s integrity. In addition, participa- A central lesson of the Zimbabwean case is tion of the people in the process is good civic that before any post-conflict society launches education for the populace. Citizens begin a constitution-making process, the society not only to understand the process but to must debate and come to an understanding understand and appreciate its importance to about what kind of society it wants to cre- their lives and communities. They also begin ate. The constitution must be an exercise in to see the values that the constitution seeks building national consensus on the values and to protect and promote, and such values are provisions to be included in the document. better protected when they have become en- One of Zimbabwe’s continuing constitutional trenched in the culture of the society. An- problems involved the question of who was other lesson learned is that a commission and was not a Zimbabwean and whether or that reports to the president can be suscep- not Zimbabwe was to be a nonracial society, tible to manipulation by the party in power, with all its citizens having equal rights and resulting in the government imposing its protection under the law regardless of ra- preferred constitutional model. Matters are cial identity128—a problem not discussed at made worse by the common perception that Lancaster. By contrast, part of South Africa’s such commissions are often filled by people constitution-making process was devoted to sympathetic to the ruling party. debating the kind of society South Africa Furthermore, the report and draft consti- was to create.129 One can argue that the Af- tution developed by a constitutional com- rican National Congress (ANC) was clearly mission must not be subject to unilateral ­ex- ©dedicated Copyright to establishing a nonracial by society the ecutive Endowment interference and must be guided of by as long ago as 1955 through the adoption a reasonable time frame. The Zimbabwean of the Freedom Charter,130 and some of the constitutional commission was given six discussionsthe United in the 1993 Multi-Party States Nego- months Institute to complete its work. of132 Although Peace the tiating Forum focused on identifying in- commission met its deadline, the time frame stitutions and legislation that needed to be was clearly unrealistic; the deadline was met changed to create a nonracial and democratic at the expense of adequate public consulta- South Africa.131 Consideration of the type tion. It is possible that if the commission of society to be created enables the process had been given more time to do its work, it to look at conditions in the country and the could have organized more consultations, types of institutions and legislation required perhaps resolved existing disagreements with to bring about the change envisioned. groups that opposed the process, and gained Zimbabwe’s failed constitution-making legitimacy. As it stood, civil society in Zimba- process under Mugabe also reveals that a bwe was clearly opposed to the process. The constitutional commission must be fully NCA argued that “a defective process will representative of society and account for the lead to a defective constitution which does concerns of the widest possible segment of not reflect the wishes of the people.”133 Time Framing the State in Times of Transition 193

does not always guarantee quality, but there jor improvements in substance over the 1980 is no doubt that a truly participatory and Lancaster House Constitution. First, it sig- consultative approach in pluralist develop- nificantly reduced the power of the execu- ing countries requires sufficient time to give tive to avoid abuse and the concentration meaning to the process and bring alienated of power in a single person or institution interests and communities into it. A rushed and adopted a two-term limit for the presi- process often leaves many issues unresolved dency.135 Second, it recommended two houses and leads to quick compromises that do not in parliament, a lower house and an upper stand the test of time. The 1979 Lancaster house, with the upper house acting as a house House constitutional negotiations had only of review over the functions and actions three months to complete their work, leaving of the lower house. Third, it recommended unresolved several important issues, such as a mixed proportional representation and property rights and land reform, past human constituency-based . Fourth, rights violations perpetrated in the long and it recommended several measures, such as brutal liberation wars, and ensuring the eco- the ratification of constitutional office holders nomic empowerment of the black majority by parliament, to ensure that parliament was after decades of discrimination that left them the center of power rather than the president. landless and poor. Finally, rushed processes Fifth, it adopted provisions guaranteeing the often tend to compromise opportunities to independence of the judiciary and security engage in mass education to build ownership of tenure. However, all these improvements around the final constitution. were lost in the dispute over the process. A third lesson from the Zimbabwean A fourth lesson from the commission ap- experience is that the process of adopting a proach is that, on practical grounds, using a constitution is as important as the substance commission with a broad and unregimented of it. A defective process is unlikely to lead agenda is inappropriate for elaborating a to a constitution that reflects the wishes of document as complex as a constitution. With the people. Clearly, a constitution that is per- thousands of submissions to the commis- ceived as being imposed on a large segment sion, it is possible to write any number of of the population, or having been adopted versions of a constitution and find justifica- © Copyrightthrough manipulation of the by process theby one Endowmenttion for each in the submissions made of to the of the stakeholders, is unlikely to gain suf- commission. The Zimbabwean government’s ficient popularity or legitimacy to endure. In so-called clarifications and corrections to the thethe LancasterUnited House Constitution States process, Institute1999 commission report of illustrate Peace this point. there was no public participation in develop- A further point, learned from the manner in ing the terms and conditions set therein to which Mugabe changed provisions adopted govern the people’s relationship with their in the 1999 constitution, is that it must rulers. The constitution-making process - re be agreed at the start of the constitution- mained the preserve of politicians, with the making process how decisions are going to people as bystanders. The Mugabe govern- be made, and once made, that those decisions ment has perpetuated the status quo, with should be final. Again, the South African parliament enacting sixteen amendments process is instructive, as it was based on an with no participation of the people.134 The agreement that all decisions of the constitu- people have to feel that they own a document ent assembly were to be by consensus, and before they can respect, defend, or obey it. In once the draft constitution was adopted, all this regard, the 1999 constitution, which was stakeholders would support the enactment of put to the 2000 referendum, had several ma- the constitution in parliament and would not 194 Muna Ndulo

seek to amend the text. In the South Afri- Section 23 of the constitution still exempted can process, the African National Congress African customary law from the principles (ANC) did not dictate the process and had of nondiscrimination; in addition, other leg- no power whatsoever over its results. islation still discriminates on gender grounds. In Zimbabwe, because the 1999 constitu- Only equality between men and women tional process was bogged down by disagree- can create the proper conditions to trans- ments over the process, exclusive attention form Zimbabwean society, and any future was directed at the land issue and ques- constitution-making process ought to pay tions of executive power, overlooking other particular attention to this. equally important constitutional issues. The The South African constitution was sub- need to deal with gender inequality and ject to judicial certification before presenta- adopt measures to ensure its elimination in tion to parliament. The constitutional court Zimbabwean society did not receive as much was responsible for examining the text and attention as it deserved.136 This was true of deciding whether it conformed to the agreed the 1980 Lancaster House constitutional constitutional principles.141 No precedent ex- conference as well, at which there were only ists elsewhere in the world for certification two women among the sixty-five delegates. of a constitutional text by a court. This ap- Even though women form 52 percent of the proach, though attractive, would not have population, are the main providers of labor worked in Zimbabwe, where the judiciary for farming (approximately 70 percent), and is not perceived as independent. South Af- are the primary managers of homes in com- rica was fortunate in that the constitutional munal areas,137 they suffer from pervasive in- court was new, having only been established equality perpetuated by the traditional roles in 1994. All its judges were selected and ap- assigned to them. On the land, women are pointed through a process adopted after the treated as dependants of men, not as land- end of . holders or farmers in their own right. Sec- After the elaboration of a draft constitu- tion 23 of the Lancaster House constitution tion, the next important issue is how to adopt prohibits discrimination, but recognizes ex- the constitution and ensure maximum legiti- ceptions to this general principle in issues macy. The supreme law of the land should ©relating Copyright to, among other things, theby applica the- not Endowment be adopted using procedures that of ap- tion of African customary law.138 In 1999, ply to ordinary legislation. Two methods of the Supreme Court, basing its judgment on adopting constitutions are common: adop- thisthe exception, United ruled in Magaya States v. Magaya139 tion Institute through a two-thirds majorityof Peace in parlia- that a woman could not inherit land from ment or through a constituent assembly or her deceased father. The Administration of national referendum. A constituent assembly Estates Act of 1997, which passed after the could take a variety of paths. In Namibia Magaya case, has changed this position in and South Africa, the constituent assemblies relation to inheritance specifically, but only were elected; in Uganda, it was a collection for deaths that occurred after November 1, of all stakeholders defined as inclusively as 1997. Under this law, a widow retains rights possible. With respect to parliament adopt- to land upon the death of her husband. But ing the constitution, the important issue is in reality, women still occupy a subordinate not so much whether parliament has power position in communal areas and generally to adopt and enact a constitution; rather, it only have access to land through their hus- is how to ensure that the sovereign will of bands. In another 1999 Supreme Court case, the people on which the edifice of democracy Mahlangu v. Khumalo,140 the court ruled that rests is expressed in producing a legitimate, Framing the State in Times of Transition 195

credible, and enduring constitution. If any- no obligation to abide by its result. Govern- thing, the process of consulting the people ment manipulation of the process quickly strengthens parliament, as it implies parlia- became apparent, as in the weeks leading ment’s unequivocal acceptance that its pow- up to the referendum, the state-controlled ers are delegated to it by the people. The rela- media launched an intensive publicity cam- tionship between parliament and the people paign in support of the constitution and was can endure only if this is recognized. Thus, seemingly less prepared to allow airtime to in matters of great national importance, such those campaigning against it. Referendums as adopting a new constitution, parliament inevitably have their own drawbacks. In par- must consult and defer to the wishes of the ticular, the actual wording of the questions people. Adopting a constitution through a may greatly influence the result; they are referendum is one of the most transparent expensive and time-consuming and could ways to further the culture of consultation. be considered to be too formal and static. Popular democracy demands the institution- The success of the NGO’s campaign against alization of a culture of consultation, recip- adopting the constitution amply demon- rocal control in lawmaking, and the use of strates that NGOs can be key to ensuring that power and privilege. It should be entrenched the wishes of the president and government in a constitution as a mechanism for obtain- remain subordinate to those of the people. ing the mandate of the people on constitu- The Zimbabwean process also demonstrated tional matters and as a deterrent to amend- the crucial role of NGOs and other civil- ments. The two-thirds majority requirement society groups in bringing the issue of a just is often within reach of the largest party in constitution to the fore and helping to defeat parliament, making it little different in prac- a bad product. If not for their mobilization, tice from the simple majority required for the referendum on the flawed draft constitu- ordinary lawmaking. To safeguard democ- tion in 2000 would have passed, given the racy, much more should be required to effect government’s unparalleled use of state media a than the will of to campaign for it. the majority party in parliament. Approving a constitution through a national referen- © Copyrightdum encourages the full participation by the of the EndowmentConclusions of people, who can give it their formal seal of There are two root causes of the so-called approval. The process can also generate wide cultural problem of constitutionalism in Af- thepublicity United and engender full States public debate and Instituterica: the colonial experience of overlaidPeace with the education of the people on the substantive is- postcolonial imposition of a one- or domi- sues that the constitution covers. It increases nant-party system. The legacy of colonialism the chances of the document receiving the is offered frequently as an explanation for Af- sort of critical and objective consideration rica’s current failures in governance. Western that it deserves. Finally, a referendum can criticism of bad governance, as in the case of counterbalance a president- or government- Zimbabwe, is often branded as neocolonial- inspired document being approved by a com- ist. Undoubtedly, colonial governments were plaint parliament. not conducive to developing a culture of the However, the February 2000 referendum rule of law in a Diceyan sense, notwithstand- on the draft constitution in Zimbabwe illus- ing hasty and belated attempts to create a trates some of the pitfalls associated with the framework for constitutional government in process. The referendum was merely a con- the last years of colonial rule. Indeed, for most sultative exercise, as the president was under of its history, colonial government was by 196 Muna Ndulo

­nature authoritarian, and its legacy provided a constitution in 1999 clearly did not imply temptation for similar conduct by successive the continued acceptance of the amended rulers of the new states. The time has come, Lancaster House Constitution. Producing a however, for Africans to take responsibility homegrown constitution remains a national for transforming their own societies. Zimba- priority.142 A new constitution for Zimba- bweans must realize that economic recovery bwe could be the common platform through and political stability begin by recovering which Zimbabweans promote national rec- those values that are acknowledged to be onciliation, build a national identity, pro- the true foundation of every human society. mote national reconstruction, and engage in These values are, in turn, the foundation of nation building. social creativity and democratic governance. Zimbabwe must establish a stable political Notes order that promotes development and aids 1. See, generally, Patrick McAuslan, “Good the eradication of poverty, hunger, disease, Governance and Aid in Africa,” Journal of African and ignorance while guaranteeing citizens Law, vol. 40, no. 2 (1996), p. 168. the rule of law, as opposed to rule by law, and 2. C. Palley, The Constitutional History and Law of Southern Rhodesia, 1888–1965 with Special equal protection under the law regardless of Reference to Imperial Control (Oxford: Clarendon a citizen’s gender, sexual orientation, age, re- Press, 1966); see also Colin Leys, European Politics ligion, color, or ethnic origin. in Southern Rhodesia (Oxford: Oxford University Such a stable political order can only be Press, 1959). achieved by establishing a constitutional order 3. Royal Charter of Incorporation of the that is legitimate, credible, enduring, and ac- British South Africa Company, October 29, 1889. Cecil Rhodes approached the British government cessible to the people, without compromising with a request for a royal charter. His reasons were the integrity and effectiveness of the process set out in the royal warrant and were mainly that, of governance. The stark lessons learned from first, the existence of a powerful British company Zimbabwe’s failure in its 1999 constitutional would be advantageous to the commercial and other process are that the process of adopting the interests of the and her colonies; second, the company would carry into effect diverse constitution is as important as its substance, concessions and agreements that had been made by ©and thatCopyright the process must be legitimate by if allthe chiefs Endowment in the region and such other concessions of and stakeholders are to accept it. In turn, for the treaties as the petitioners should obtain; and third, process to be legitimate, it must be inclusive. that if the concessions obtained could be carried Nothe party, includingUnited the government, States should out, Institute the conditions of the natives of could Peacebe improved control it. A constitution should be the prod- and their civilization advanced. uct of the integration of ideas from all stake- 4. Royal Charter of Incorporation, 1889. holders in a country, including political par- 5. Hugh Marshall Hole, The Making of Rho- desia (London: Macmillan, 1926). ties both within and outside parliament, 6. In 1918 the African chiefs mounted a le- organized civil society, and individuals in so- gal challenge to the BSA Company claims of land ciety. The question of developing a durable ownership. See In re Southern Rhodesia, 1919, A.C. constitution for Zimbabwe remains a matter 211. of priority. There is an urgent need for the na- 7. By the early 1920s, BSA Company of- tion to be engaged constructively in finding ficials had become convinced that Rhodesia was positive approaches to nation building for a too costly to administer, and in turn was satisfied that company administration could be just and sustainable society in Zimbabwe. As improved upon. The Crown assumed responsibility the Zimbabwe Council of Churches (ZCC) for administration of Rhodesia. Southern Rhodesia stated in a pastoral letter, the rejection of the Order in Council, 1924. Framing the State in Times of Transition 197

8. Report of the Constitutional Commis- Council Resolution 216, 12 November 1965, and sion 1968 (Harare: Government Printer, 1968). Security Council Resolution 217, 20 November See chap. 16, p. 143, on land tenure and economic 1965. For a critical analysis of the international re- development. sponse, see Baron, “The Rhodesian Saga,” p. 37. 9. Claire Palley, The Constitutional History 24. The Constitution of Rhodesia, 1969, Act and Law of Southern Rhodesia, 1888–1965 with Spe- no. 54. The adoption of the constitution followed a cial Refrence to Imperial Control (Oxford: Clarendon referendum held on June 20, 1969, which approved a Press, 1966), p. 265. Republican status. The 1969 constitution continued 10. , 1979, art. 52 to entrench the prevailing land ownership. Article 8 (4). (1) (b) stated: “any provision of the law relating to 11. Constitution of Rhodesia, 1961. tenure of land, including Tribal Trust Land, which is specified in that law to be a specially entrenched 12. Leo Baron discusses the impact of the provision for the purposes of this section shall, sub- 1961 constitution in detail in “The Rhodesian Saga,” ject to the provisions of sub section (4) be subject Zambia Law Journal, vol. 1, no.1 (1969), p. 43. to the same procedure in all respects as if it were a 13. Baron, “The Rhodesian Saga.” constitutional Bill to amend a specially entrenched 14. Constitution of Southern Rhodesia, 1961, provision of this constitution specified in the Third art. 70. See also Baron, “The Rhodesian Saga,” Schedule.” p. 44. 25. Constitution of Rhodesia, 1969, Act 15. Ibid., p. 45. no. 54, art. 92 (schedule 2) provided for a bill of 16. Racial Discrimination and Repression in rights. Article 84 excluded the courts jurisdiction Southern Rhodesia, International Commission of from hearing any allegations of the violation of the Jurists (ICJ) report (undated). See also Reg. Austin, rights. The Character of the Rhodesian Front since UDI, Af- 26. Constitution of Rhodesia, 1969. Article rica Bureau, 1968. See also Law and Order (Main- 10 provides that “(1) Every person is entitled to tenance) Amendment Act 50 of 1967. the enjoyment of the rights and freedoms set forth 17. Law and Order (Maintenace) Amend- in this schedule without unjust discrimination on ment Act 50 of 1967. the grounds of race, tribe, political opinion, color 18. There are several good accounts of Rho- or creed; (2) For the purposes of subparagraph (1) desia’s Unilateral Declaration of Independence, of this paragraph, a law shall not be construed to such as Douglas Anglin, Zambian Crisis Bahavior: discriminate unjustly to the extent that it permits Confronting Rhodesia’s Unilateral Declaration of In- different treatment of persons or communities if dependence, 1965–1966 (Montreal: McGill-Queen’s such treatment is fair and will promote harmoni- University Press, 1994). ous relations between such persons or communi- © Copyright by the Endowmentties by making due allowance for economic, of social 19. Southern Rhodesia Order 1965 no. 1952, or cultural differences between them; (3) No law (S.I. 1965/1952). Article 2 (1) states: “It is hereby shall be construed to be inconsistent with any of the declared for the avoidance of doubt that any instru- the United States Institutefollowing provisions, that of is to say,Peace paragraphs 2, 5, ment made or other act done in purported promul- 6, 7 (other than subparagraphs (a) and (b) of sub- gation of any Constitution for Southern Rhodesia paragraph (3) thereof ), 8 and 9 of this schedule to except as authorized by Act of Parliament is void the extent that the law in question provides for: (a) and of no effect. . . . (2) This section shall come into the application in the case of Africans of African operation forthwith and shall then be deemed to customary law; or (b) the exercise by tribal courts of have had effect from 11th November 1965.” their jurisdiction; or (c) restrictions on the owner- 20. Southern Rhodesia Order 1965 no. 1952. ship, occupation or use of land.” 21. Madzimbamuto v. Ladner-Burke and Baron 27. The injustices and suffering caused during v. Ayre N.O. and Others, GD/Civ/23/66 and AD the ninety years of colonial rule that began in 1899, 1/68. in particular during the last fifteen years of colonial- 22. (1969) AC 645. ism (the UDI period), have been well documented, 23. Sanctions were imposed, but were largely especially the abuses of the 1970s. The Catholic ineffectual. General Assembly Resolution 2012 Commission for Justice and Peace (CCJP) in the (XX) 12 October 1965; General Assembly Reso- country was an important part of the documenta- lution 2151 (XXI) 17 November 1965; Security tion process. CCJP facilitated the international 198 Muna Ndulo

publication of several reports, including The Man in firm the acquisition and for the determination of the Middle (1975), Civil War in Rhodesia (1976), and any question relating to compensation, and appeal Rhodesia, the Propaganda War (1977). See also Racial to the Appellate Division.” Discrimination and Repression in Southern Rhodesia. 36. Constitution of Zimbabwe, Act no. 4, 28. A.J. Hanna, The Story of the and 1979. Article 38 (1) provided that “the House of (London: Faber and Faber, 1960), and Assembly shall consist of one hundred members Thomas Franck, Race and Nationalism: The Struggle qualified in accordance with schedule 3 for election for Power in Rhodesia-Nyasaland (Santa Barbara, to the House of Assembly, of whom: (a) eighty shall CA: Greenwood Press, 1960). be elected by voters registered on the common roll 29. , Peasant Consciousness and for eighty common roll constituencies; (b) twenty Guerrilla War in Zimbabwe: A Comparative Study shall be elected by voters registered on the white roll (London: James Currey, 1985). for twenty white roll constituencies.” 30. For an excellent account of the liberation 37. The Constitution of Zimbabwe -Rhode war in Zimbabwe, see Ranger, Peasant Consciousness. sia, Act no. 12, 1979. Article 2 (b) provided that 31. Ibid. “ shall cease to be an indepen- dent state and shall become part of her Majesty’s 32. Constitution of Zimbabwe Rhodesia, .” 1979. 38. The state of emergency gave power to leg- 33. Southern Rhodesia Act, 1979, chap. 52. It islate by regulation, rather than through parliament. provided for the bringing into effect a new constitu- Regulations included the Emergency Powers (Main- tion for Zimbabwe and the revocation of the 1961 tenance of Law and Order) Regulations, which gave constitution. See articles 1 (1), (2), (3). The constitu- sweeping powers of arrest and detention without tion was brought into force by the Southern Rho- trial, the right to control meetings, and so on. desia Constitution (Interim Provisions) Order 1979 (S.I.1979/1571). It provided that the constitution 39. Jason Beaubien, “Government Poli- was to come into force on December 4, 1979. See cies Lead to Collapse of Zimbabwe Economy,” art. 1 (1), (2), (3), (4), (5). available at www.npr.org/templates/story/story. php?storyId=5446596 (accessed May 26, 2009). 34. Constitution of Zimbabwe, 1979. 40. Constitution of Zimbabwe Amendment 35. Constitution of Zimbabwe Amendment no. 7 Act no. 23, 1987. no. 4, 1979, art. 16 (1) provided: “No property of any description or interest or right therein shall be 41. , Zimbabwe: Terror compulsorily acquired except under the authority of Tactics in the Run-up to the Parliamentary Elections, a law that—(a) requires the acquiring authority to June 2000, AFR 46/014/2000, available at www. give reasonable notice of the intention to acquire unhcr. org/refworld/docid/3b83b70ce.html (accessed ©the property,Copyright interest or right to any person by owning the April Endowment 27, 2009). of the property or having any other interest or right 42. Beaubien, “Government Policies Lead to therein that would be affected by such acquisi- Collapse.” tion;the (b) requires United that the acquisition States is reasonably Institute43. Section 110 (3), Electoral of Act, Peace 2008. necessary in the interests of defense, public safety, 44. “Mugabe Rival Quits Election Race,” public order, public morality, public health, town BBC News, June 22, 2008, http://news.bbc.co.uk/2/ and country planning, the utilization of that or any hi/africa/7467990.stm (accessed May 28, 2009). other property for a purpose beneficial to the public 45. Article 20.1.7 of the eighth schedule of generally or to any section thereof or, in the case of the Global Political Agreement. land that is under-utilized, the settlement of land for agricultural purposes; (c) requires the acquiring 46. Southern African Development Com- authority to pay promptly adequate compensation munique, issued in on January 27, 2009. for the acquisition; (d) requires the acquiring au- 47. The Constitution of Zimbabwe -Rhode thority, if the acquisition is contested, to apply to sia Amendment no. 4 Act 1979. It was published the General Division or some other court before, or as a schedule to the Zimbabwe Constitution Order, not later than thirty days after, the acquisition for 1979 (SI 1979/1600), United Kingdom. an order confirming the acquisition; and (e) enables 48. The Lancaster Talks were held at Lan- any claimant for compensation to apply to the Gen- caster House London in 1979 under the auspices eral Division or some other court for the prompt of the British government. These negotiations led return of the property if the court does not con- to a cease-fire in the guerrilla war that the black Framing the State in Times of Transition 199

liberation movements had been waging against the have the right and the opportunity without any of Unilateral Declaration of Independence regime. the distinctions mentioned in article 2 and with- The movements were Zimbabwe African National out unreasonable restrictions: (a) to take part in the Union (ZANU-PF) and the Zimbabwe African conduct of public affairs, directly or through freely Peoples Union Party (ZAPU-PF). The armed wing chosen representatives; (b) to vote and to be elected of ZANU-PF was called Zimbabwe National Lib- at genuine periodic elections which shall be by uni- eration Army (ZANLA) and that of ZAPU-PF versal and equal suffrage and shall be held by secret was called Zimbabwe Peoples Liberation Army ballot, guaranteeing the free expression of the will (ZIPLA). of the electors; (c) To have access, on general terms 49. Constitution of Zimbabwe, 1979, art. of equality, to public service in his country”; Ameri- 52(4). can Convention on Human Rights, July 18, 1978, 50. See as amended art. 23, 1144 U.N.T.S. art. 123: “(1) Every citizen by Act no. 18 of 1996, Article 35 (1): “Every presi- shall enjoy the following rights and opportunities: dent shall hold office for a period of five years; (2) (a) to take part in the conduct of public affairs, di- notwithstanding anything to the contrary contained rectly or through freely chosen representatives; (b) in this constitution or any other law no person who to vote and to be elected in genuine periodic elec- has twice been elected as President shall be eligible tions, which shall be by universal and equal suffrage for re-election to that office.” and by secret ballot that guarantees the free expres- 51. See , 1996, art. sion of the will of the voters; and (c) to have access, 83(2): “The President or Vice President may serve under general conditions of equality, to the public a maximum of two consecutive terms.” service of his country”; African Charter on Hu- man and Peoples’ Rights, art. 13: “(1) Every citizen 52. See South African Constitution, 1996, art. 88(2): “No person may hold the office as presi- shall have the right to participate freely in the gov- dent for more than two terms, but when a person is ernment of his country, either directly or through elected to fill a vacancy in the office of the president, freely chosen representatives in accordance, either the period between that election and the next elec- directly or through freely chosen representatives in tion of a president is not regarded as a term.” accordance with the provisions of the law. (2) Every citizen shall have the right of equal access to the 53. Universal Declaration of Human Rights, public service of his country.” U.N. GAOR, 3rd sess., U.N. Doc. A/810 pmb. (1948), art. 21(3): “the will of the people shall be 57. The International Covenant on Civil and the basis of the authority of government; this shall Political Rights preamble states: “Recognizing that, be expressed in periodic and genuine elections.” in accordance with the Universal Declaration of Human Rights, the ideal of free human being en- 54. Universal Declaration of Human Rights, joying civil and political freedom and freedom from art. 20: “(1) everyone has the right to freedom of © Copyright by the Endowmentfear and want can only be achieved if conditions of are peaceful assembly and association. (2) No one may be compelled to belong to an association.”); Ameri- created whereby everyone may enjoy his civil and can Declaration of the Rights of Man, May 2, 1948, political rights, as well as his economic, social and theart. XXVUnited (right to peaceful assembly),States XXI (right Institutecultural rights.” of Peace to associate) “to promote, exercise and protect. . . 58. See Universal Declaration of Human legitimate interests of a political, economic, reli- Rights, art. 2 (1); see also International Covenant gious, social, cultural, professional, labor union or on Economic, Social, and Cultural Rights, art. 2; In- other nature,” OEA/Ser.L. V/II/71, Doc. 6 rev. 1, ternational Covenant on Civil and Political Rights, 18 (1988). art. 19 (right to freedom of thought, conscience and 55. See, e.g., Universal Declaration of Hu- religion and art) and art. 20 (prohibiting war propa- man Rights, art. 21(1): “Everyone has the right to ganda and incitements to discrimination); African take part in the government of his country, directly Charter on Human and Peoples’ Rights, art. 8. or through freely chosen representatives,” Inter- 59. See Universal Declaration of Human national Covenant on Civil and Political Rights, Rights, art. 19; International Covenant on Civil and December 19, 1966, art. 25 (a), 999 U.N.T.S. 171, Political Rights, art. 19; see also African Charter on echoing art. 21 (1) of the Universal Declaration of Human and Peoples’ Rights, art. 9. Human Rights. 60. See International Covenant on Civil and 56. See, e.g., International Covenant on Civil Political Rights, art. 20. See also African Charter on and Political Rights, art. 25: “Every citizen shall Human and Peoples’ Rights, art. 9. 200 Muna Ndulo

61. See Universal Declaration of Human 74. This is the case even though the Zim- Rights, arts. 20 (10) and 23 (4) (right to form and babwe constitution guarantees the independence join trade unions); see also International Covenant of the judiciary and vests judicial authority in the on Civil and Political Rights, arts. 21, 22 (right of courts (art. 79 [1]) and declares: “the constitution freedom of association including trade unions); Af- is the Supreme law of Zimbabwe and if any other rican Charter on Human and Peoples’ Rights, arts. law is inconsistent with this constitution that other 10, 11. law shall, to the extent of the inconsistency, be void.” 62. See Universal Declaration of Human See Zimbabwe Constitution, art. 3. Rights, arts. 6–11; see also International Covenant 75. Constitution of Zimbabwe Amendment on Civil and Political Rights, art. 2(3), 14–16, and no. 12 Act of 1993, sec. 2, which amended section African Charter on Human and Peoples’ Rights, 16(1) (e) of the constitution. art. 7. 76. Parliamentary debates, December 6, 1990. 63. See Universal Declaration of Human (Harare, Zimbabwe: Government Printer). The Su- Rights, arts. 2, 23 (1); see also International Cov- preme Court was progressive on the death penalty; enant on Civil and Political Rights, arts. 2, 26. in Catholic Commission for Justice and Peace v. Attor- 64. United Nations Human Rights Commit- ney General 1993, (1) ZLR 242, the Supreme Court tee, art. 19, June 29, 1983, general comment 10. passed an order to set aside and substitute the sen- tences of death with sentences of life imprisonment 65. United Nations Human Rights Commit- because of undue delays in executing four prisoners. tee, art. 19, general comment 10. The delay had been declared to be inhumane. 66. Thomas Franck, “The Emerging Right to 77. Bulletin of Zimbabwe Law no. 1, 1991, Democratic Governance,” American Journal of Inter- p. 19. national Law, vol. 86, no. 1 (1992), p. 46. 78. Constitution of Zimbabwe Amendment 67. Constitution of Zimbabwe, 1979, chap. no. 11 Act of 1990, sec. 5. 111, arts. 11–26. 79. 2000 (2) ZLR 243. 68. Constitution Amendment no. 7, 1987. 80. Supreme Court of Zimbabwe, 2000. 69. For example, one of the earlier changes was the removal (by the expiry date of the provi- 81. Amnesty International, Zimbabwe: Rights sion) of the twenty seats reserved for whites in par- under Siege, AFR 46/012/2003, available at http:// liament’s Constitution Amendment Act no. 15 of www.unhcr.org/refworld/docid/3f12edab4.html 1987. Related changes were the substitution of a (accessed on April 27, 2009), p. 14. ceremonial presidency and premier for an executive 82. 1994 (2) ZLR 54. president, as well as the abolition of the Senate to 83. 1994 (2) ZLR 54. create a 150-member unicameral legislature, Act 23 84. 1994 (2) ZLR 54. ©of 1987. Copyright by the Endowment85. Constitution of Zimbabwe Amendment of 70. Constitution of Zimbabwe Amendment no. 14 Act of 1996. Paragraph (d) to section 22 (3) Actthe no. 30, 1990.United Article 15 (4) provided States that “the of Institutethe constitution was repealed. of Peace execution of a person who has been sentenced to 86. In Kohlhasas v. Chief Immigration Officer, death by a competent court in respect of a criminal 1997 (2) ZLR 441, the court held that the amend- offence of which he has been convicted shall not be ment did not in any way impact upon, interfere with, held to be in contravention of subsection (1) solely or diminish the mobility rights of a citizen wife, in on the ground that the execution is carried out in particular the right to have her alien husband reside the manner prescribed in section 315 (2) of the with her permanently in Zimbabwe. criminal Procedure and Evidence Act as that sec- 87. See National Constitutional Assembly, tion existed on the 1st October, 1990.” The amend- AGENDA: Building a Peoples’ Constitution, vol. 2, ment was passed as the Supreme Court was hearing no. 2 (October 1999). The National Constitutional the case S. V. Chileya. The appellants in the case ar- Assembly was a voluntary and inclusive association gued that hanging was a cruel and unusual form of of civil-society organizations and individuals, in- punishment. The Government did not wait for the cluding civic groups, political parties, churches and case to be concluded. other religious organizations, youth organizations, 71. Constitutional Amendment no. 7, 1987. women’s organizations, and pressure groups. 72. Constitutional Amendment no. 7, 1987. 88. Constitution Commission of Inquiry into the 73. Constitutional Amendment no. 7, 1987. Establishment of a New Democratic Constitution (Ha- Framing the State in Times of Transition 201

rare: Government Printer, 1999), a publication of spective (New York: Cambridge University Press, the constitutional commission. The commission was 2004), p. 32. established under Proclamation no. 6, 1999, issued 106. Hatchard, Ndulo, and Slinn, Compara- under the Commission of Inquiry Act. tive Constitutionalism. 89. Constitutional Commission of Inquiry. 107. Contrary to expectations, the final draft 90. Lovemore Madhuku, “How Independent did not permit the state to acquire land from white Is the Constitutional Commission?” AGENDA: farmers without compensation. Building a People’s Constitution, vol. 2, no. 2 (Octo- 108. The reasons advanced by the govern- ber 1999). ment in the government gazette were as follows: “It 91. Presidential Commissions of Inquiry Act. is common knowledge that any draft is by definition 92. Presidential Commissions of Inquiry Act, subject to improvement by way of grammatical and p. 10. factual corrections as well as linguistic clarifications in order to avoid any doubt about the meaning of 93. National Constitutional Assembly, Why the what is in the draft. The corrections and clarifica- NCA Says No to a Partisan Constitution-Making Pro- tions below were done based on the records of cess (Harare: Government Printer, 1999), pp. 5, 6. the Commission as contained in the commission’s 94. National Constitutional Assembly, Why Committee minutes and published in the Commis- the NCA Says No, p. 7. The commission had 13 sion’s 1,437 page report. It is all there for the ask- women out of 500 commissioners. ing and there is nothing new because the record is 95. Constitution Commission of Inquiry. public and therefore speaks for itself. Only people 96. Ibid. with literacy problems or hidden political agendas 97. The coordinating committee developed will find it difficult to tell the otherwise clear differ- a comprehensive roster of key individual opinion ence between corrections and clarifications on the leaders in Zimbabwe from all walks of life, nota- one hand and amendments on the other. Don’t be bly politics, business, education, religion, media, and misled.” See Hatchard, Ndulo, and Slinn, Compara- civil society. tive Constitutionalism, p. 33. 98. Justice G. Chidyausiku, constitutional 109. Mushayakarara v. Chidyausiku no. 2000 commission chairperson, speech delivered at the (1) ZLR 248, p. 252. International Conference, November 17, 1999 (on 110. E.g., the Harare Commonwealth Dec- file with the author). laration, signed October 20, 1991, by heads of 99. On April 28, 1999, Mugabe set up a com- government of the member countries of the Com- mission of inquiry under the Commission of In- monwealth, which reaffirms member countries’ quiry Act (chap. 10:07) in terms of Proclamation commitment to the primacy of equal rights under no. 6 of 1999 (SI 138/99). law and includes a specific pledge by member coun- © Copyright by the Endowmenttries to concentrate, with renewed vigor, of on estab - 100. Inter-Parliamentary Union (IPU), Par- lished national systems based on the rule of law line database: Zimbabwe, Last Elections, available and independence of the judiciary; see The Harare at www.ipu.org/parline/reports/2383_e.htm (ac- the United States InstituteDeclaration, 1991. Zimbabwe of withdrewPeace from the cessed May 27, 2009). Commonwealth in 2003. 101. Inter-Parliamentary Union (IPU) Par- 111. , “Fast Track line database: Zimbabwe, Last Elections. ,” March 2002, vol. 14, 102. Inter-Parliamentary Union (IPU), Par- no. 1 (A); Amnesty International, Zimbabwe: Rights line database: Zimbabwe, Last Elections. under Siege. See also International Bar Association, 103. Tichaona Sibanda, “Zimbabwe: Who “International Human Rights Day,” December 10, Should Write Country’s Constitution?” AllAfrica. 2004; the association marked the day by publish- com, available at http://allafrica.com/stories/ ing a collection of personal accounts, opinions, and printable/200904290850.htm1 (accessed July 18, images about . See Hu- 2009). man Rights Institute, “International Human Rights 104. Sibanda, “Zimbabwe: Who Should Day,” December 10, 2004, London. Write Country’s Constitution?” 112. See previous note. 105. See John Hatchard, Muna Ndulo, and 113. Commonwealth Observer Group to Peter Slinn, Comparative Constitutionalism and Good the Zimbabwe Presidential Elections, Preliminary Governance: An Eastern and Southern African Per- Report of the Commonwealth Observer Group to 202 Muna Ndulo

the Zimbabwe Presidential Elections March 9–10, media/2003_alerts/1208.htm (accessed on April 27, 2002, (Harare, Zimbabwe) March 14, 2002, con- 2009). cluded that although the actual polling and count- 125. Hatchard, Ndulo, and Slinn, Compara- ing process were peaceful and secrecy of the ballot tive Constitutionalism, p. 33. was assured, the conditions in Zimbabwe did not 126. The author was one of the experts who adequately allow for a free expression of will by participated in the conference. He did so as an the electors. See also SADC Parliamentary Forum Intitute for Democracy and Electoral Assistance (SADCPF) Observer Mission, Report on Zimba- (IDEA) consultant. bwe Elections, March 13, 2002, Harare, Zimbabwe. 127. In his welcome remarks at the Interna- which concluded that the election process could not tional Conference on the Making of Zimbabwe’s be said to adequately comply with the norm and New Democratic Constitution, November 17, 1999, standards for elections in the SADC region (on file G. Chidyausiku stated: “A homegrown constitution with the author). can and needs to be enriched by drawing on the 114. Human Rights Watch, Under the Sha- experiences of other countries. Indeed there is no dow: Civil and Political Rights in Zimbabwe, Human country in the modern world including Zimbabwe Rights Briefing Paper, June 6, 2003, New York. that can escape the imperative of a global society.” 115. Human Rights Defenders Report, “Eval- 128. One of the justifications for the sei- uation Mission 2003: Systematic Repression of zure of land from the white population has been Human Rights Defenders in Zimbabwe,” Febru- on the grounds that it was being transferred to ary 18, 2004, Paris. Zimbabweans. 116. Joseph Winter, “What Is Behind the 129. See Katherine Savage, “Negotiating Zimbabwe Demolitions?” BBC News, July 26, South Africa’s New Constitution: An Overview 2005. of the Key Players and the Negotiating Process,” 117. Winter, “What Is Behind the Zimba- p. 1,664, in Penelope Andrews and Stephen Ellman, bwe Demolitions?” eds., The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law (Athens, OH: Ohio Uni- 118. Inter-Parliamentary Union, Parline da- versity Press, 2001). tabase: Zimbabwe, Last Elections. 130. Freedom Charter, 1954. See Anthony 119. UN Human Rights Committee, Initial Sampson, Mandela: The Authorized Biography (New Report on Zimbabwe (CCPR/C/SR.1664) para. 4. York: Vintage, 1999), pp. 93–95. 120. African Commission on Human and 131. Andrews and Ellman, The Post-Apartheid Peoples’ Rights, Resolution on the Rights to Free- Constitutions. dom of Association, Gambia, December 2002. 132. The commission was appointed on May © 121.Copyright International Labor Organization, by “Lat- the 21, 1999.Endowment It was directed to complete its work of by est Report of ILO Committee on Freedom of As- November 30, 1999. sociation Cites Belarus, Colombia, Zimbabwe, 133. See NCA, Why We Say No. Others,” November 21, 2002 (ILO/02/51). the United States Institute134. Constitution of Zimbabwe of AmendmentPeace 122. See Human Rights NGO Forum, “Com- Act of 1981; Constitution of Zimbabwe Amend- plying with the Abuja Agreement: Two Months ment no. 2 Act of 1981; Constitution of Zimbabwe Report,” Harare, December 2001, p. 4. Amendment no. 3 Act of 1983; Constitution of 123. Human Rights Watch, Under the Shadow, Zimbabwe Amendment no. 4 Act of 1984; Con­ p. 40. stitution of Zimbabwe Amendment no. 5 Act of 124. Meeting in Abuja, Nigeria, the Com- 1985; Constitution of Zimbabwe Amendment no. 6 monwealth heads of state and government voted to Act of 1987; Constitution­ of Zimbabwe Amend- renew Zimbabwe’s suspension, which was in place ment no. 7 Act of 1987; Constitution Amendment in March 2002 following the country’s flawed pres- no. 8 Act of 1989; Constitution Amendment no. 9 idential election. Zimbabwe called the Common- Act of 1989; Constitution Amendment no. 10 Act wealth decision unacceptable and announced that of 1990; Consti­tution Amendment no. 11 Act of Zimbabwe would withdraw from the organization 1990; Con­sti­tution Amendment no. 12 Act of 1990; immediately. See Human Rights First Media Alert, Constitution Amendment no. 13 Act of 1993. “Zimbabwe Suspended Indefinitely from Com- 135. Report of the Constitutional Commission monwealth,” available at www.humanrightsfirst.org/ 1968. Framing the State in Times of Transition 203

136. Other constitutional issues not suffi- rights/privileges relating to communal lands, quali- ciently attended to included administrative struc- fications for serving under the civil service or the tures and issues of decentralization, rights of farm armed forces, or the spending of public funds.” workers, the relationship between church and state, 139. Supreme Court of Zimbabwe, 1999. and minority rights. 140. Supreme Court of Zimbabwe, 1999. 137. Women and Land Lobby Group, Report 141. Savage, “Negotiating South Africa’s on WLLG Workshop on Women’s Land Rights, Held New Constitution,” p. 184. The constitutional court 27–28 November, 2000 (Harare: WLLG, 2001). in September 1996 refused to certify the first draft Many men are migrant workers in the cities or in submitted to the court on the grounds that a num- other areas away from their homes. ber of provisions of the constitutional text were 138. The Zimbabwe Constitution, sec. 33: not in compliance with the relevant constitutional “No law or public officer shall discriminate against principles. Finally, in December 1996, the constitu- any person on the grounds of that person’s tribe, race, tional court certified the new constitution. See In re: and place of origin, political views, color, religion or Certification of the Constitution of the Republic of sex. It shall be lawful to discriminate on any of the South Africa Act May 1996, CCT 23/96. above grounds in the areas of family law (including 142. Zimbabwe Christian Council Pastoral marriage, divorce and inheritance), customary law, letter, Victoria Falls, August 2001.

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