CONSTITUTION IN TRANSITION: Academic Inputs for a New Constitution in Zimbabwe Norbert Kersting (Ed.) Mit finanzieller Unterstützung des: CONSTITUTION IN TRANSITION: Academic Inputs for a New Constitution in Zimbabwe Norbert Kersting (Ed.) Mit finanzieller Unterstützung des: Published by: Friedrich-Ebert-Stiftung Zimbabwe Office 6 Ross Avenue Belgravia Harare Commissioned by: Federal Ministry for Economic Cooperation and Development (BMZ) through Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise, without prior permission in writing from the publishers. Any person that does any unauthorized act in relation to this publication will be liable to criminal prosecution and claims for damages. Disclaimer: The views expressed in this publication by the authors are not necessarily those of the publishers. ISBN: 978-0-7974-4065-4 Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe List of contents: List of Contributors: ..............................................................................3 Preface: ................................................................................................4 Norbert Kersting: Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe. Executive Summary.................................................................7 Sandra Liebenberg: Reflections on Drafting a Bill of Rights: A South African Perspective ..................................................21 Greg Linington: Developing a New Bill of Rights for Zimbabwe: Some Issues to Consider ......................................................46 Hans-Peter Schneider: Unitary and Federal States: Historical and Political Perspectives......................................85 Dele Olowu: Decentralization and Local Government in the Zimbabwean Constitution ..............................................101 Norbert Kersting: Zimbabwean Constitution: Best Anchor for a Fair Electoral System ..................................................127 Geoff Feltoe: Elections and the New Constitution of Zimbabwe .....138 Lia Nijzink: The Relative Powers of Parliaments and Presidents in Africa: Lessons for Zimbabwe?......................160 Werner J. Patzelt: Towards a Powerful Parliament in a Viable Constitution. Reflections on Zimbabwean Draft Constitutions. .............................................................186 Muna Ndulo: Democratic Governance and Constitutional Restraint of Presidential and Executive Power ...................................206 Hans-Peter Schneider: Rule of Law or Rule of Judges? Problems of an Independent Judiciary. ...............................255 Brian D. Crozier: Courts and Judiciary Under a New Zimbabwean Constitution ....................................................273 Raymond Atuguba: Customary Law: Some Critical Perspectives in Aid of the Constitution Making Process in Zimbabwe ...........................................................................291 John Makumbe: Transitional Arrangements .....................................300 2 List of Contributors: Dr. Raymond Atuguba: Senior Lecturer at the Faculty of Law at the University of Ghana Brian Crozier: B.Com., LL.B. (UCT), Temporary Lecturer, Department of Procedural Law, Faculty of Law at the University of Zimbabwe Prof. Geoff Feltoe: Professor at the Faculty of Law at the University of Zimbabwe Prof. Dr. habil. Norbert Kersting: Prof. Chair for Transformation and Regional Integration (DAAD) at the Department of Political Science at Stellenbosch University Prof. Sandra Liebenberg holds the H.F. Oppenheimer Chair in Human Rights Law at the Faculty of Law at Stellenbosch University Prof. Greg Linington is a Professor of Constitutional Law at the Department of Political Science at the University of Zimbabwe Prof. John Makumbe is Professor for Political Science at the University of Zimbabwe and Acting Head of Department Prof. Muna Ndulo: Professor at the Faculty of Law at Cornell University, Ithaca, New York Lia Nijzink: Senior Researcher at the Faculty of Law at the University of Cape Town Prof. Dele Olowu: Africa-Europe Foundation, The Hague, Netherlands Prof. Dr. habil. Werner Patzelt: Professor at the Department of Political Science at the Technical University Dresden Prof. Dr. Dr. h.c. Hans-Peter Schneider: Professor at the Institute for Federalism, University of Hannover 3 Preface The “unforced force of the better argument” is a concept which reflects the theory of the German philosopher Jürgen Habermas. For this reason a non-hierarchical deliberate discourse is necessary. There is a lot of critique on that normative concept criticising the possibility of power-free zones and the absence of interest groups and elites. Academia may be naïve and it may be wishful thinking, but here the principle of free deliberation is prominent. In October 2009 international experts came together in Harare to deliberate on different aspects of a future constitution for Zimbabwe. All of the participants had been included in processes of drafting constitutions in Asia, Europe, South Africa, Kenya and Ghana. The experts represented the two disciplines of law and political science. The law is key in the drafting of constitutions whereas political science plays an important role in the critique and discussion about constitutional reality. The objective of the conference was to give inputs from comparative constitutional law and comparative politics to consider the best practice of different parts of the world and especially from other African countries. The idea of an academic conference was suggested by colleagues from the political sciences during the formation of a partnership between the University of Stellenbosch and the University of Zimbabwe in May 2009. Similar to the consultation process in South Africa's 1994 interim constitution and 1996 final constitution, external experts should be included in the consultation process. This idea was supported by different German, Zimbabwean and South African institutions and was ultimately supported by the Friedrich-Ebert-Stiftung. The conference “Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe” was held from 26 – 29 October 2009 in Harare. Academic input is useful to show the best practices and experiences of other countries. In constitutional processes the input of civil society is very 4 important. The people have the final say and because their support gives legitimacy to a constitution, consequently, they have to be included in the constitutional processes. They have to bring in their own ideas and they should be allowed to discuss the recommendation provided by academia, political parties etc. However, even with a high input-legitimacy of a constitution, it is important that a constitution is justiciable and viable. Zimbabwe in the beginning of the new millennium is characterized by a strong polarization within the society. This is partly due to a legacy of colonial rule. The process of transition is not undisputed. Within the different political parties, as well as within civil society, the support for the idea of transition and inclusive government differs. The engagement and dis-engagement brings about a fragile political situation. But, politicians and civil society groups have to think about alternatives. Are there any alternatives to negotiations, discourse and consensus? In Zimbabwe, there has to be a cultural change towards consensual politics and real reconciliation. This change seems to be more difficult than institutional change. Two principles quoted by the participants of the conference seem to be important for Zimbabwe: “My country always, my government when it is right” and “The only way to keep power is to share power.” In a nation-building process, “national patriotism” has to focus on the will of the people and not on individual interests or clientelistic needs. Political institutions and rules help to control competing political parties and actors. A responsive benevolent government, which accepts opposition as loyal opposition has to be developed. In civil society a constructive culture of voice and protest against the government has to be developed, which produces necessary additional checks and balances. Ruling elites have to understand that democratic checks and balances are useful. For this reason a constitution can build the cornerstone for government for the people, by the people. 5 I would like to thank the Friedrich-Ebert-Stiftung in Zimbabwe and the German Development Cooperation for their support. I would also like to thank my assistants Renate E. Ahrens, Christian Rode and Conrad Kassier for their help in the preparation of the conference, documenting, videotaping and audio-taping the proceedings, and handling the “Metaplan”. I would like to thank the representatives of the Zimbabwean civil society groups, the German Embassy, the political parties and the Honourable Minister of Constitutional and Parliamentary Affairs Eric Matinenga for their contributions. Ultimately, most welcome was the enthusiastic support by the academic participants and colleagues, who indeed made the discourse a deliberative academic input. Norbert Kersting Stellenbosch, November 2009 6 Norbert Kersting: Constitution in Transition: Academic Inputs for a new Constitution in Zimbabwe. Executive Summary In February 2009, a new inclusive government