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The Big Saturday Read – Understanding the ominous nature of the proposed constitutional amendment

January 21, 2017

The government has proposed the first amendment to the new Constitution of Zimbabwe, which is barely four years old. It is a controversial amendment. It comes in the middle of an on-going constitutional process of appointing the next Chief Justice and therefore interferes with that process in a manner that raises serious concerns about government's attitude to constitutionalism and the rule of law.

 

However, the significance of the proposed amendment lies beyond its immediate effect upon the appointment of the Chief Justice. It gives us an indication of the direction that Zimbabwe is likely to take in a post-Mugabe era, given that its principal movers are the faction that is currently regarded as the one most likely to take over after Mugabe's lengthy reign, whose end remains a matter of speculation. This amendment is indicative of Zimbabwe's future leaders' attitude towards not only the Constitution, but also to constitutionalism and the rule of law, two key pillars of liberal democracy.

 

Under Mugabe, Zimbabwe already fits the description of what Levitsky and Way called a “competitive authoritarian” regime in their 2002 work, The Rise of Competitive Authoritarianism. In a later book, Competitive Authoritarianism: The Origins and Dynamics of Hybrid Regimes in the Post-Cold War Era, they described a competitive authoritarian regimes as,

 

“civilian regimes in which formal democratic institutions are widely viewed as the primary means of gaining power, but in which fraud, civil liberties violations, and abuse of state and media resources so skew the playing field that the regime cannot be labelled democratic. Such regimes are competitive, in that democratic institutions are not merely a façade: opposition parties use them to seriously contest for power; but they are authoritarian in that opposition forces are handicapped by a highly uneven—and sometimes dangerous—playing field. Competition is thus real but unfair.”

 

Anyone who has even a basic understanding of Zimbabwean politics can recognise that Zimbabwe is an almost perfect fit for this definition.  Since this amendment is being pushed by a faction that has a good chance of succeeding Mugabe, the manner in which it is being handled and its attitude towards the Constitution demonstrate that Zimbabwe is likely to continue on the same path of competitive authoritarianism. Hopes for reform that are often touted are simply far-fetched. If anything, it might become even more authoritarian.

 

It is important to understand the nature of the proposed amendment and its broader implications. However, before delving into the actual amendment, I would like to give context so that the conduct of those pushing for it can be explained and understood. In doing so, I draw heavily upon Noah Harari’s A Brief History of Humankind and his analysis of the role of myth in society and human relations. I characterize a constitution as a mythical story which expresses a people’s imagination of how they wish to be governed. The process of amending the constitution is an attempt by politicians to re-write that myth, to replace the existing myth with a new one.

 

Myths and why they matter

 

According to Harari, the ability to imagine and create fictions is the most unique and distinguishing feature of the humankind’s language. This is the ability to transmit information about things that do not exist anywhere else but in people’s imagination. Many other animals can use their forms of language to transmit information to each other. But these languages are about things that actually exist – such as where to find food or warning others of danger. However, unlike other animals, people have the ability to imagine things that do not actually exist in the physical world. These things are referred to as imagined realities or fictions or myths. These myths are very important in processes of building networks of cooperation between large numbers of people. Their success depends on whether they are believed by a significant number of people.

 

There are numerous examples of such myths or imagined realities. The nation-state is built upon myths of common nationhood, which are shared between members of a particular group of people. Tribal groups are also built on similar foundations – a shared belief that one belongs to a tribe. It is possible to establish a new nation if sufficient numbers of people can have a common belief in their nationhood and if they take steps towards achieving that goal. A decade ago, there was no country called South Sudan. It began a separate nation-state in 2011, when it gained independence from Sudan.

 

Legal institutions have their foundation in myths. The company, which dominates business life all over the world, is a well-known legal myth. It has no physical existence, yet the law regards it as an autonomous person that is separate from the real humans who contribute money for its business (shareholders) or those who work for it (employees). To achieve this outcome, where a company is regarded as a person, it requires collective human imagination that believes in the myth that once certain rituals are performed, such as drafting the company’s constitution and registration documents and getting them approved by a Registrar, then a new person exists. Whereas a normal person is born of other persons, the company is a person only because the law regards it as a person. But the law does not achieve this on its own. The law itself is a product of human imagination and it requires people to believe in it.  Religious institutions are also built around commonly-shared religious myths. Money is also built upon a myth.  

 

These myths are important for building networks of large-scale human cooperation which are more flexible and dynamic. Wild dogs can form networks of cooperation in order to capture prey. When baboons go out to steal from the farmer’s maize field, they always leave one at a high point, watching to see if the farmer is coming. His role is to warn the others in the field in the event of danger. Lions also cooperate when hunting for prey. But these networks of cooperation are often small, usually based on kinship. Ants can form larger networks but they operate in a rigid manner. Harari argues that the difference is that humans have managed to form far larger, diverse, flexible and dynamic networks of cooperation that go beyond kinship. He attributes this success to humans’ ability to weave myths using their imagination, belief in which brings them together.

 

Thus, for example, the commonly-held belief in the legal myth of the company means thousands of strangers from many different places can agree to put their money into a company, which pools these resources together to carry out business. Likewise, a common belief in the myth of nationhood means people who identify themselves as part of a nation can fight or work together to defend and develop their nation. China alone has more than 1.3 billion people, while India is a close second with 1.2 billion. The common thread between these people is belief in their nationhood. Belief in common religious myths means diverse people who have never met before can worship and work together, united by that commonality. In Zimbabwe and other African countries, a new brand of clergyman, who trade as prophets, is a good example of this phenomenon. They have managed to build large networks of cooperation and amassed enormous amounts of wealth through the agency of beliefs.

 

As Harari points out, the success of a myth depends on how well it is told and how persuasive it is to a large group of people. Religions are built around stories of gods – religious myths. They play an important role in building societal values and for stability. Nation-states are built around stories of nations – national myths. They play a key role in keeping society together and for its protection and stability. Limited liability companies are built around stories of law – legal myths. They play an important role in business and in some cases have become more powerful than nation states. Money is built upon the myth of value represented by a piece of paper or a coin – myth of money.  This money myth oils the wheels of business.

 

These myths have succeeded because there are significant numbers of people who believe in them. There are, of course, many other myths which have failed and become redundant over the course of time because no one or too few people believed in them. The myth behind the Zimbabwe dollar collapsed because no one believed in it anymore. It was abandoned and replaced by a new myth of the US dollar. Last year, the central bank introduced a new myth in the form of the Bond Note. Time will tell whether people will still have belief in that myth. The myth of the US dollar endures because the whole world believes in it. In some cases, the myths were violently suppressed and replaced by new ones.  

 

Absolute monarchies were built upon religious myths which justified absolute rule on the basis that monarchs had a divine right to rule. But as Harari points out this changed fundamentally in 1789 with the French Revolution, a seminal process which replaced the myth of absolute monarchy with the myth of sovereignty of the people. Authority to govern was no longer derived from divine sources but from the people. This myth that authority derives from the people has endured over the last two centuries and is currently the most dominant myth across the world. It does not mean it will last for eternity. Colonialism and apartheid were built on the foundation of myths of a hierarchical social and racial order where some people were regarded as more superior to others. These myths justified white racism against blacks across African countries.

 

Liberal democracy is also built on the myth of a social order characterized by individual liberty and equality between all humans. Similarly capitalism is built upon the myth of individualism and the supremacy of the free market. On the other hand, socialism is built upon the notion of collectivism and the fundamental role of the state in planning and managing economic affairs. Whether one of these ideologies and social orders is more dominant depends on the extent to which the myth behind it is believed by a significant number of the population or enforced by those who hold power.

 

The constitution as legal myth

 

It is against this background of the significance of mythology and its role in promoting social cooperation that we must consider the place of the national constitution. To put it tersely, the constitution is a legal myth, a product of collective human imagination. In theory, a constitution is formed when people put their minds together to imagine collectively how they want to be governed. Thus when Zimbabweans went to vote during the constitutional referendum on 16th March 2013, they were completing this process of collective imagination which had started some years back when they began to agitate for constitutional reform.

 

As Harari states in his book, “since large-scale human cooperation is based on myths, the way people cooperate can be altered by changing the myths – by telling different stories.” In 2013, Zimbabweans changed the constitutional story from the old one which had been told in 1979 at the Lancaster House Constitutional Conference. They created a new story in 2013. It was adopted because an overwhelming majority of voters were sufficiently persuaded to believe in the new story. A new myth or product of collective imagination had been formed. When section 77 of the Constitution says “every person has the right to sufficient food” it does not mean every Zimbabwean is actually getting sufficient food. It simply means in their collective imagination, Zimbabweans believe that every person must be able to get sufficient food and if he or she is not getting it, they must assert this right against the state.

 

However, like all myths, the constitution’s survival depends on people’s continued belief in the myth that it embodies. If they stop believing in the myth, it will become redundant, like other myths before it. It can also be replaced by a new myth. The American constitution has survived more than 200 years because American people believe in its myth and they defend it. The British constitution is even more remarkable because it is not written in a single document. Yet, it has survived for centuries, principally because a significant majority believe in its existence. Remarkably, most ordinary people have no idea what that constitution actually says. Once in a while, when a matter of public importance emerges and has to be decided by the courts, some members of the public might take an interest in and gain some knowledge of constitutional matters. The most recent of this was the Brexit case, where the Supreme Court was called upon to decide on the constitutional question of parliament’s role in the Brexit process. But it is enough that the majority of the British people believe that they have a constitution and would defend it if necessary.

 

The British example reminds us that belief in a myth does not have to be based on actual knowledge. We know this to be the case in relation to religion but it is less obvious in relation to law. Many Zimbabweans who voted in favour of the Constitution in 2013 most probably had very little knowledge, let alone understanding of the actual legal story embodied in that document. They most probably voted based on belief in what they were told by their political leaders. This was not the first time that Zimbabweans’ belief in a constitutional myth had been tested. Back in February 2000, when Zimbabweans rejected a proposed constitution, they were essentially rejecting a new myth. The way people respond to constitutions and believe in them even if they don’t actually know what the constitutions contain is not different from the way people believe in stories around which religions are based. With religion, the default explanation is that belief is based on faith. With constitutions and nation-states, it’s probably loyalty and patriotism.

 

As I have stated, the survival of the myth of the constitution depends on the extent to which it is supported and defended by a significant number of people. To do so, they must believe in it. If they cease believing in it, the myth may collapse. Likewise, as already pointed out, it is possible for a counter-myth to be presented and if it is successfully backed, it might replace the existing myth. This is the challenge that Zimbabweans face in their relationship with the constitution which they voted for just four years ago. How well do Zimbbweans believe in the myth embodied in that document? Do they believe in it sufficiently to make sacrifices for its defence? Consider the relationship between people and their religions. Some believe in the religious stories underlying these religions to the point that they are willing to sacrifice life and limb for them. Likewise, some people believe in their nation-state to the point that they are prepared to die defending it.

 

How much then do the people of Zimbabwe believe in the myth embodied in the new Constitution, which a faction of the ZANU PF regime is preparing to re-write. This is the context within which the proposed amendment of the constitution must be analysed. Perhaps if Zimbabweans know more about the amendment and its ramifications, they might find more reason to believe in the current myth and defend it.

 

Re-writing the myth

 

By starting the process of amending the constitution, the ZANU PF government is now re-writing the constitutional myth. The government wants to amend section 180 of the Constitution which makes provision for the appointment of judges. The proposed amendment seeks to give the President more authority in the process of appointing the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court. Under the amendment, the President will have the power to appoint the 3 senior judicial officers in consultation with the Judicial Services Commission (JSC). This is in contrast to the current provision, in which the President is required to appoint the Chief Justice from a list of 3 candidates submitted by the JSC after carrying out public interviews.

 

The difference between the two methods of appointment is that the current method contains checks and balances, transparency and allows public participation in the process, whereas under the proposed method, the President will have virtually unlimited discretion and the public is virtually excluded from the process. The irony is that the proposed method is a return to the old method that existed under the old constitution, which was repealed and replaced by the new constitution adopted in 2013. In effect, ZANU PF is proposing to revive an old and discredited myth.

 

The myth embodied in the new Constitution is all about keeping the President’s power in check and ensuring that there is public participation and more transparency and checks and balances. The role of the JSC is to ensure that judicial peers have a role in the selection of their leaders. There is nothing anomalous about this given that in the other arm of the state, parliament, the Speaker of Parliament, who is its head, is chosen by his or her peers. The Executive arm of the state does not have any role whatsoever in the appointment of the Speaker of Parliament, which is the ideal position. However, the Executive has a completely different attitude towards the judiciary, where it wants to have a dominant role in the appointment of its head, the Chief Justice. The reason for this is simple as the government wants to exert control over the judiciary. This is easy to achieve by controlling the head of the judiciary. The proposed myth is therefore a threat to judicial independence.

 

The reasons given by government for the amendment lack sincerity. Critics of the current provision argue that it is untenable for the head of the judiciary to be appointed by his juniors. This gives an impression that the JSC is only made up of junior judges, which is false.  In fact, it is predominantly made up of persons who do not hold judicial office. The JSC has 13 members, of whom only 5 are judicial officers. These are the Chief Justice (CJ), the Deputy Chief Justice (DCJ), the Judge President (JP) and a judge nominated by all other judges and the chief magistrate. In the current case, where the DCJ and the JP were candidates, there were just 3 judicial officers, namely the CJ, one judge and the chief magistrate. This is in total contrast to the picture painted by critics who argue that the process is wrong in that it requires junior judges to select their boss.

 

The other 8 members of the JSC are: the Attorney General, who has the rank of a judge, the Chairperson of the Civil Service Commission, 3 practicing lawyers with at least 7 years’ experience nominated by the Law Society of Zimbabwe, 1 senior academic nominated by an association of law teachers, 1 public accountant with at least 7 years’ experience nominated by an association of public accountants and finally, 1 human resources practitioner with at least 7 years’ experience appointed by the President. It is clear from this that the majority of the 13 members of the JSC are not members of the judiciary at all.

 

The JSC was set up in this way precisely to ensure that it had broad and diverse representation and was not overly controlled by the judges. The 8 non-judiciary members are there to provide checks and balances within the body that superintends over the judicial arm of the state. It is therefore completely false and misleading to argue, as has been peddled by supporters of the amendment,  that the current method of appointing the Chief Justice is controlled by his/her juniors. The correct position is that the panel of interviewers comprises of senior professionals, with vast experience in their fields. As an interview panel, it could not be any more broad-based, diverse, representative and fairer.

 

In any event, if the reasons given for the amendment were sincere, they would be replacing the role of the JSC in the current process with Parliament. It would not give the bulk of the power to the President. Instead, after the President nominates a candidate for the position, that candidate would have to be confirmed by Parliament. This would mean going through a rigorous and public confirmation process. This is the case in countries where the President is given power to nominate a candidate for the Chief Justice post. The US follows this pattern. There, the President nominates a candidate and the candidate goes through a congressional confirmation process, which is a public affair. Such a procedure would mean that all power is not left in the hands of the President. There are checks and balances. The effect of the amendment to the Zimbabwean constitution is to place all power in the hands of one person, without sufficient checks and balances. If his choice differs from that of the JSC recommendations, the President is can ignore the JSC and he is only required to inform Parliament. It’s a meaningless requirement which places no restraints upon the President.

 

Symbol of the amendment

 

Those pushing the amendment want to present a picture suggesting that it is just a technical change to the appointment process. However, the implications of the amendment are more ominous. As I have already pointed out, the amendment make a fundamental change to the appointment process, which can impact on judicial independence. More importantly, it signifies a change in the myth embodied in the Constitution. This myth is about checks and balances, transparency and public participation in constitutional processes. The proposed amendment seeks to replace this story with a new narrative in which the President has almost exclusive power. To that extent, the proposed amendment is a step towards undoing the gains of the new Constitution.

 

The effect of all this is to cause confusion and uncertainty while putting the implementation of section 180 of the Constitution in abeyance. It is a dangerous precedent which suggests that whenever someone in government finds a constitutional requirement inconvenient, they can simply ignore it while they seek an amendment. A person might be arrested and even though a court might grant him bail, the state might keep in in custody, claiming that it is working on a constitutional amendment. It brings uncertainty to the constitutional system. This reaffirms the view that the government has no commitment to constitutionalism. Constitutionalism is about placing limits on state power.  

 

Is the constitution sacred?

 

Some might argue that there is nothing special about amending the constitution and that therefore government has done nothing wrong by seeking to change the judicial appointment process. It is not my argument that the constitution is sacred, that it can’t ever be amended, no. However, for the myth of the constitution to be effective, its special character must be strictly guarded. It is not a law that can be changed on a whim or merely because a provision is politically inconvenient to a political faction. And certainly, any amendment should not be done in order to stop the implementation of a constitutional process which is already underway.

 

Myths upon which institutions and social orders are built often create mechanisms that support and protect such institutions and orders. Thus religious myths contain sacred spaces which cannot be tampered with. There are various cultural taboos which prevent people from doing or saying certain things. Those who violate taboos or sacred places are dealt with severely. They can be ostracized and banished. In Chinua Achebe’s classic, when Okonkwo committed a taboo, his punishment was banishment to his mother’s village for some years. In this way, myths create self-protective mechanisms. The myth of the constitution is no exception. This is why the constitution claims superiority over all other laws by stating that it is the supreme law of the land with which all laws, practices, customs and traditions must conform. The constitution also contains provisions which make it harder to change it, compared to how other laws are changed. Changing a constitution requires a special procedure to be followed and must be approved by a two thirds majority in parliament.

 

The constitution also creates a special sacred space, called the Declaration of Rights. It contains the fundamental rights and freedoms of citizens, which the state must not interfere with except in special circumstances which only the constitution permits. Any law, practice, custom or tradition which contravenes any provision in this part will be declared invalid by the courts. More importantly, this part is even harder to amend than the rest of the constitution. Not even the two thirds majority of Parliament is enough to amend this sacred space. Any amendment in this sacred space has to be approved by voters at a referendum. The clause which requires this special procedure can never be changed without the approval of voters at a referendum. So there is a double protection – the clause that protects the Declaration of Rights and that clause is also protected as if it were part of the Declaration of Rights.

 

The Constitution may not have the sacred character associated with religious and cultural institutions, but it designed to mimic that status. This does not make it immune from amendments, but it demands that all amendments be carefully and seriously considered and that when they are made they do not violate constitutionalism. The proposed amendment falls on many counts, not least of all, in the fact that it dismantles pillars of constitutionalism.

 

Conclusion

 

I have explained that a constitution is built on a myth. It represents the collective imagination of a people. It is a story of how they want to be governed and how they relate with each other and their government. This myth can only survive if it has believers who are prepared to defend it. It is no different from all other types of myths upon which nations, religions, ideologies, corporations and organisations are built. Nations, religions and ideologies that have survived, endured and succeeded over the years have done so principally because they have significant numbers of believers. Likewise, constitutions, such as the US constitution which have survived for more than 200 years, have done so because they have believers who are prepared to defend them and where necessary they have adapted to changing conditions. Likewise, if the new Zimbabwean Constitution is to survive and succeed, it must have believers who are prepared to defend it. The ZANU PF regime has already demonstrated that it has no regard for the constitution. Large parts of the constitutions, such as devolution have been virtually ignored as if they do not exist. Institutions which are supposed to support democracy, such as the National Peace and Reconciliation Commission exist only in name.

 

Now, because section 180 is politically inconvenient, they want to change it, removing the checks and balances and transferring all power to one man. Since this amendment is spearheaded by the political faction that is currently tipped to take over from or after Mugabe, it is an ominous sign that Zimbabwe’s illiberal democracy will continue after the long serving leader. This is not the type of amendment that reformists advance. The worst part lies beyond the actual amendment. It is that the potential future leaders are prepared to ignore and contravene the constitution, to violate constitutionalism and to promote concentration of power in the hands of the President. This apparent penchant for authoritarianism is the complete antithesis of progress reformism. Anyone who believes there is any progressive reformism from ZANU PF is completely deluded.

 

waMagaisa

 

wamagaisa@gmail.com  

  

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