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Zimbabwe's Unfulfilled Struggle for a Legitimate Constitutional Order

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Zimbabwe's Unfulfilled Struggle for a Legitimate Constitutional Order 7 Zimbabwe’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 history of Zimbabwe and Tcan 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 Zim babwe 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 Bulawayo as stitution that can foster peace, stability, and its capital. By 1888, Lobengula, 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 Mashonaland.2 terms of constitution making; second, it will In October 1889, Cecil Rhodes 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- pro cess 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 Harare); 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 Peacekingdom 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 Rhodesia. 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, Southern Rhodesia 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 Great Zimbabwe. 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 Northern Rhodesia 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 human rights: the right to nationalism in the north and the hesitant freedom of movement 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 Endowmentthe declaration granted were rendered of territories soon became the independent largely illusory by a number of careful and states of Zambia and Malawi. 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
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