Big Saturday Read: Guarding the constitution
In March, Zimbabwe will celebrate the fifth anniversary of its constitution, which was approved by a popular referendum in 2013. The constitution was one of the major achievements of the Inclusive Government which governed the country for 4 years between 2009 and 2013.
Nevertheless, in the aftermath of the major political developments that happened in November 2017 which fundamentally altered Zimbabwe’s political landscape, a number of questions have arisen which demand a reassessment of our relationship with the constitution. Does the constitution matter at all? What if the constitution stands in the way of what is “practically sensible”? Is it ever justifiable to depart from the constitution? These questions have arisen because of the contrasting attitudes that have been exhibited by sections of society in the aftermath of the events in November.
Attitude towards the constitution
Three major strands have emerged. One strand which is steeped in formalism calls for a strict and faithful implementation of the Constitution. It does not matter that there is another, seemingly reasonable and expedient way, to do things. If it is not in the constitution then it should not be done. The state must comply with the constitution at all times and where it has failed, these failings must be pointed out and corrected.
The second strand which is based on expediency views the constitution as an occasional inconvenience, which can be overlooked sometimes in the interests of what is practical and reasonable. This counts as wilful disregard of the constitution, and is totally unacceptable. This is why it is listed as one of the grounds of removing (impeaching) a president.
Interestingly, there are parts of the constitution that have never been implemented since its adoption in 2013. A key one of Chapter 14, on devolution. In fact, the Minister of Finance announced in his budget statement in December that parties should consider amending the constitution with a view to removing provisions that form the foundation of devolution. It's an ominous threat to devolution. But one also questions the relevance of parts of a constitution that are not implemented and there seems to have been no appetite to push for their implementation? Is our constitution too idealistic and inconsistent with our economic circumstances?
There is a third strand which involves creating a façade of compliance when, upon further scrutiny, the constitution is actually being violated. In this case, government is not dismissive of the constitution but it is willing to stretch it beyond its limits. This is equally dangerous because it gives a false impression of compliance and legality. Thus, while the constitution requires provincial councils that are led by elected provincial chairpersons, both President Mugabe and Mnangagwa did not comply with these provisions but instead chose to appoint provincial governors who are disguised as Ministers of State responsible for the different provinces. True, the president is permitted to appoint any number of Ministers but doing so in place of provincial chairman mandated by the constitution circumvents the constitution.
In order to examine the problem, we must consider the principle of the rule of law, of which there are two fundamentally different versions: the formal rule of law and the substantive rule of law.
Formal rule of law
The formal conception of the rule of law is concerned with process but not with the content of laws. As long as laws have been properly and validly passed by parliament that is all that matters for the rule of law. The content of the law is unimportant. They could be the most disagreeable laws but as long as they are valid and the government has complied with them, the rule of law is satisfied. This means even a dictatorship which promotes tyranny can still be rule of law-compliant as long as its tyrannical laws are validly enacted. Professor Joseph Raz, a chief proponent of the formal conception of the rule of law, warns that the rule of law must not be confused with democracy or good law. It is just one of the qualities of a legal system, there being other qualities and purposes, such as social justice. Thus is possible that a legal system might promote social justice at the expense of the rule of law.
Substantive Rule of Law
A second version of the rule of law is the substantive rule of law which was eloquently explained by the late British jurist, Lord Bingham. Under this version, in addition to the usual characteristics of the rule of law identified under the formal version, there must be compliance with human rights and international law. Under this version, the content of law is critical. This means a legal system in which laws violate human rights cannot be regarded as rule of law-compliant even if the government strictly adheres to it. Thus, under this version, a dictatorship cannot be regarded as rule of law-compliant as long as those laws systematically violate fundamental rights and freedoms.
Whether or not a government is rule of law-compliant depends on the version of the rule of law that it believes in. If it merely focuses on the formal version, it is easy to pass the test because the bar is very low. As already stated, even a dictatorship can pass that test meets the process of making laws and complies with them. However, the same regime would almost always fail if the standard of the substantive rule of law is used. This is because that standard looks to the content of the laws and requires compliance with fundamental rights and freedoms.
Which rule of law?
This analysis of the rule of law helps us to understand why the Mugabe regime always insisted that it was rule of law-compliant while its critics argued that it was not. The Mugabe regime took the path of the formal conception of the rule of law, while its critics judged it from through the lens of the substantive rule of law. The Mugabe regime might have had a host of laws, such as AIPPA and POSA which are draconian, but it passed the formal rule of law test because it dutifully and faithfully complied with them.
Indeed, this façade of constitutionality and legality was one of the hallmarks of the Mugabe era. The Mugabe regime was always desperate to present an impression that what it was doing was in accordance with the law, even if they were made retrospectively. Hence, it always countered the charge that it violated the rule of law by arguing that it did everything according to the laws.
For example, political opponents were routinely arrested and detained for lengthy periods simply because the Attorney General had the power to invoke a provision of the criminal code which allowed him keep the accused in remand prison even after the courts had granted them bail. It was tantamount to punishment of the accused persons before trial. In most cases, the matters were never pursued. It was purely for harassment, but in invoking the provision, he was acting in accordance with the law. It could easily be said from a formalistic view that it was in accordance with the rule of law.
When Mugabe’s supporters who are not happy with his departure argue that the country must return to the rule of law, they are not talking about respect for human rights as envisaged under the substantive rule of law. Their version of returning to the rule of law means returning power to Mugabe to administer whatever draconian laws it passed. They are referring to the formal conception of the rule of law, with which even the worst dictatorships can claim to be compliant. If Mugabe’s supporters were serious about the rule of law, they would have argued for a substantive version of the rule of law during the Mugabe era. Instead, they were happy to serve Mugabe while crafting and administering repressive legislation such as AIPPA and POSA. This version of the rule of law is no checking device on the abuse of power. It does not rein in governments that abuse rights. Their interest is not a rule of law that protects human rights but one that merely enables and legitimises their power.
Choice for the new administration
This analysis has important implications for the new administration under the leadership of President Mnangagwa. If the notion of a “new dispensation” is to be more than a buzzword, the Mnangagwa administration must approach the rule of law very differently from its predecessor's path. If it follows the path of the Mugabe administration and insists on a formal view of the rule of law, it would have set the bar at a very low level. Nothing would have changed. It would still violate human rights while claiming to be acting in accordance with the rule of law merely because it would be complying with draconian legislation.
It is for this reason that if it wants to be taken seriously, it must move quickly to undo the Mugabe legacy of draconian laws and move from the formal view of the rule of law to a substantive rule of law under which the legal system fully protects fundamental rights and freedoms. The investors they are keen to lure will be looking to see how the government approaches the question of the rule of law. Only a move towards the substantive rule of law will persuade citizens and investors that there is genuine transformation.
The above discussion of the rule of law provides the necessary background to explain why there must be a solid relationship between the people and the constitution. As the constitution declares, it is the supreme law of the country. All other laws and customs are subordinate to the constitution. It means they must all be in compliance with the constitution and if they are not they can be declared invalid by a court of law. To put it in dramatic terms, the constitution is the godfather of all laws in the country. If one is unhappy with a law or custom or the actions of government or their local authority, they can approach the courts of law to seek redress.
Furthermore, the constitution binds everyone, from the government to companies and individuals – they must all accordance with the constitution. If it’s too much to know all other laws, one should at least have some knowledge of the constitution, particularly the part that articulates fundamental rights and freedoms. Individuals and organisations have the right to approach the courts to demand orders to enforce compliance with the constitution whenever they see contraventions by anyone.
Unfortunately, knowledge of the constitution among Zimbabweans remains sparse at best. The state has failed in its duty to promote the constitution. Nevertheless, civil society must also play a role in promoting the constitution among the people. People can only defend what they know. If they don't know what's in he constitution and why it matters to them, it will remain an esoteric document, relevant only to lawyers and politicians.
The constitution encapsulates the relationship between the citizens and the state. The constitution clearly provides that authority to govern, legislate or judge derives from the citizens. This establishes a general social contract between the citizens and those who govern the state. Those who govern are merely agents of the citizens, who are the ultimate political principals. As such, as principals, citizens, can at any time decide to withdraw their authority to govern. The opportunity to do this usually comes once every 5 years when elections are held. Nevertheless, in the intervening years, should citizens feel that their authority is being abused, they have rights and mechanisms under which they can express their displeasure and even demand withdrawal of their authority. This is why it was perfectly legal for Zimbabweans to demand the resignation of former President Mugabe in that famous march of 18 November 2017.
The nature of the state
The term “state” is sometimes used as a substitute for government, but of course, it is more complex than that. For present purpose, it is important to outline the key elements of the state.
Traditionally, the State is made up of at least three pillars: the Executive, which is normally referred to as government; the Legislature and the Judiciary. Eighteenth century French philosopher, Montesquieu was the chief advocate of the principle of separation of powers, the idea being to reduce concentration of power in the hands of one arm of the state. The power to make laws, to administer them and to interpret them should not be concentrated in one person or body. Montesquieu was charmed by the idea of Constitutional Government in England and believed (erroneously) that there was a complete separation of powers in its government. It is very hard to find a complete separation of powers in the three arms in any country but the principle provides an important foundation which helps to minimise concentration of power in one arm. Indeed, the principles of separation of powers features as one of the founding principles and values of our own constitution.
Under our Constitution, the legislature makes laws and is controlled by the party with the parliamentary majority while the executive wields the powers to govern and implement laws. In fact, the executive and the legislature have often been controlled by the same political party, which means its role as a checking and balancing mechanism on the executive has been very limited. The judiciary interprets the laws and adjudicates legal disputes. Using the facility of judicial review, courts can review the conduct of government and public bodies as well as private bodies carrying out public functions. This is why judges must be independent from the executive as without such independence they would struggle to hold the executive to account. This is why the process of appointing judges is fundamental and often generates controversy since left to its own devices, the executive would prefer to pack the courts with cronies thus ensuring favourable treatment whenever disputes arise.
This traditional model of the state seems to be incomplete. Law and practice suggests that there are two additional pillars which must be added.
The fourth pillar
In fact, our Constitution has a fourth pillar, comprising the Chapter 12 institutions, which are described as “Independent Commissions Supporting Democracy” and Chapter 13 institutions, described as “Institutions to combat Corruption and Crime”. Chapter 12 institutions include the Zimbabwe Electoral Commission, the Zimbabwe Human Rights Commission, National Peace and Reconciliation Commission, etc. Chapter 13 institutions are the Zimbabwe Anti-Corruption Commission and the National Prosecuting Authority.
As the names demonstrate, these institutions either facilitate the democratic processes or are designed to provide checks and balances on the other arms of the state, particularly the executive. If they worked efficiently, with sufficient resources, independence and competence, they would strengthen the system of checks and balances and therefore promote sound government. Most Zimbabweans are familiar with the highly-acclaimed work of the Public Protector in South Africa and many often ask why we do not have a similar office in the country. In fact, the ZACC has similar functions but it has simply been ineffective. Much of this ineffectiveness is due to political interference, lack of independence, inadequate resources and sheer incompetence.
If the Mnangagwa administration is serious about the substantive rule of law and constitutionalism, it must strengthen Chapter 12 and Chapter 13 institutions. ZACC must not merely put up a dramatic show of arrests without concrete outcomes. At the moment, ZACC seems to be more concerned with drip-feeding the nation with news of high-profile arrests, as if to show that it is actually working. They must know that they will be judged by actual outcomes of those cases, not how many high-profile personalities they have arrested. Over time, people will see through the charade as a pattern emerges that only political losers are being targeted and oft-times for what seem to be petty cases of corruption. This selective application of the law is not new. The Mugabe regime used this strategy widely and it did great damage to its reputation.
The fifth pillar
The events of November 2017 have challenged the traditional model of the state in which the security structure is subsumed within the executive branch. In fact, the military is emerging as an independent pillar in its own right, with assumed power to check upon the executive and other branches of the state. When all is said and done, it was the military which forced Mugabe out of power. It was the intervention of the military which set off a chain of events that eventually forced Mugabe to step down.
Interestingly, the military found justification for its intervention in the constitution. It invoked its assumed powers under section 212 of the constitution as namely, “to uphold the Constitution”. This argument was later upheld by a High Court judge in a case that bizarrely emerged on the day the new president was sworn into office. This was notwithstanding the fact that the military had quite evidently been deployed without the authority of the then president, Mugabe as required by section 213 of the Constitution. According to that provision, only the president who is the Commander-in-Chief of the Defence Forces has the authority to deploy the defence forces.
This breach notwithstanding, the military presented itself as a defender of the constitution, which had intervened in order to stop what it referred to as the usurpation of the President’s powers by unelected persons. Politically, the military was casting itself as part of the constitutional structures of checks and balances. It will be interpreting to observe the extent to which the military’s role in this regard will be exercised henceforth, now that key players from the military establishment are now part of the executive. Will they still take kindly to the role of the military as a check on their authority? Will they regard a deployment of armed forces without the authority of President Mnangagwa as perfectly constitutional and legal? The events of November set a serious precedent both for the present and future governments. The government must always watch its back because the military was given the constitutional licence to intervene at any time.
The idea of limited government lies at the heart of the principle of constitutionalism. This means that the government is limited by law, which entails that government must only act in terms of the mandate given by the law. In other words, the principle of constitutional supremacy makes the government subservient to the law. The importance of this become apparent when one considers the alternative, where power is arbitrary. In this alternative, an authoritarian regime rules at the whim of the dictator without any legal constraints. Whatever the dictator says is law. This is how things were under the old absolute monarchies, which claimed divine authority to rule. Under such a system, the king is law – whatever he says is the law. By contrast, where government is limited by law, the king is subject to the law. In other words, the law is king.
It is easy to see why the latter system is more preferable, where rulers are subject to the law. Citizens can claim refuge in the law whenever they are threatened by rulers. This is why it is important to defend the constitution at all times. This means citizens must guard their constitution jealously and not condone breaches by those in power. If rulers develop a habit of breaking the Constitution, even for what appear to be good reasons, it will simply open the floodgates of more breaches.
The Mnangagwa administration is only a few weeks old. In that period, a number of constitutional issues have arisen. They know that the constitutional foundation of the current government is shaky at best, given the breaches that happened in November. It is common cause that they have effective control of the state, but November set a precedent which means they must always be wary of the military, which has now emerged as the fifth pillar of the state. It is probably the threat posed by this pillar which motivated the assignment of the defence ministry to Vice President Chiwenga who is the former commander of the defence forces. Still, as has been pointed out before, there is a constitutional gap here in that the constitution requires the formal appointment of a Minister of Defence. It must be corrected. There have been a few other instances where the constitution has proved inconvenient to the government and the non-compliance is a cause for concern.
As I have pointed out in this article, two key principles, the substantive rule of law and constitutionalism are fundamental pillars that must guide government. The Mnangagwa administration must not fall into the trap of the Mugabe regime, which stuck to a formalist approach to the rule of law, which was devoid of protection of fundamental rights and freedoms. It must move quickly to amend or repeal legislation that violates human rights. When we insist on limited government, it is because we know that the alternative is dangerous.