Constitution of Zimbabwe Amendment No.2 Implications for Democracy and Constitutionalism

By Prof. Arthur G.O. Mutambara

Introduction

On 20 April 2021, Zimbabwe’s House of Assembly (the Lower Chamber) passed the Constitution of Zimbabwe Amendment (No. 2) Bill by a two-thirds majority vote of 191 to 22 Members of Parliament. On 4 May 2021, this legislation went through its third and final reading in the Senate (the Upper Chamber), where it was passed by a two-thirds majority poll of 65 to 10 Senators. The Bill now awaits the President’s signature, after which it becomes the Constitution of Zimbabwe Amendment (No. 2) Act, thus effectively changing Zimbabwe’s supreme law, which was adopted by 94.5% of 3.3 million people who voted in a referendum on 16 and 17 March 2013.

In the main, this amendment seeks to change the retiring age for Judges, expunge the public interview process for Judges, remove the presidential running mate clause, extend the women’s quota, introduce a youth quota, increase the number (from 5 to 7) of Cabinet Ministers chosen from outside Parliament, and vary the devolution clauses.

Prior to all this was the Constitution of Zimbabwe Amendment (No. 1) Act which was belatedly (after the Bill had lapsed by operation of law) and hence controversially passed in the Senate on 6 April 2021. The main effect of this Act is to change the constitutional procedure for the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court. These key appointments will now be made by the President after consultation with the Judicial Service Commission, with the explicit exclusion of public nominations and public interviews which were originally provided for in the national charter adopted by the generality of the people of Zimbabwe in March 2013.

Definitions

Before we delve into the analysis of details of the Constitution of Zimbabwe Amendment No. 2 and assess the legislation’s implications for democracy and constitutionalism, we must revisit our understanding of these two loosely used and never-properly defined terms. What is democracy? What is constitutionalism?

Democracy

Democracy is a form of government in which the people have the unfettered authority to choose those that govern them and legislate on their behalf. US President Abraham Lincoln taught us that democracy is a government of the people, by the people, for the people. We can also say democracy is the summation of the experiences of struggle by the generality of the people as they endeavour to improve their material conditions.

Now, given this understanding of democratic values, ethos and principles, here are the questions we have to address:

1. Does Amendment No. 2 advance these aspirations and ambitions?
2. Are the people at the centre of this Amendment No. 2?
3. Does it promote a government of the people, by the people, for the people? How is the social and economic welfare of Zimbabweans improved by Amendment No. 2?
4. How does the amendment improve our economic fortunes as citizens?
5. Does the amendment enhance democracy, or it consolidates authoritarian rule?

Constitutionalism

There are two legal constructs of interest to our discussion of the Constitution of Zimbabwe Amendment No. 2: constitutionalism and constitutionality. Of course, our topic is focused on the former, and we will concentrate on that. However, the amendment also has dire implications for the latter. Constitutionality refers to the quality of being in accordance with the Constitution. Is Amendment No. 2 in accordance with the Constitution? We must answer this question.

There are three distinct but related aspects to constitutionalism that we must clearly understand as we explore the implication of Amendment No. 2. Firstly, constitutionalism is the tradition, culture and behaviour of respecting the Constitution.

It is a value system developed and nurtured over time through social mobilisation, civic education and exemplary leadership. Secondly, constitutionalism is a governance doctrine that emphasises limited government or limited power of the state. It is the opposite of arbitrary powers. Constitutionalism recognises the need for a government with powers but at the same time insists that limitations be placed on those powers. Finally, constitutionalism is the unequivocal commitment to the Declaration of inalienable Rights (Bill of Rights) and strict adherence to Functional Separation of Powers of the Executive, Legislature and Judiciary.

Now, giving these diktats and imperatives of constitutionalism, here are the questions we have to address:

1. Is Amendment No. 2 respectful of the supreme law?
2. Is it in compliance and accordance with Constitution? 
3. Is it within the spirit of the Constitution?
4. Is it in breach of the Constitution? 
5. Is Amendment No. 2 promotive of limited government?
6. Does it enhance people’s participation in the exercise of the powers of the state?
7. Is Amendment No. 2 promotive of the functional separation of powers?

Amendment No. 2: Analysis of the Gory Details

With definitional and conceptual matters out of the way, let us get into the details and import of Amendment No. 2. As stated earlier, this legislation was passed in the Lower House on 20 April 2021 and in the Upper House on 4 May 2021. It was preceded by the Constitution of Zimbabwe Amendment (No. 1) Act which was passed illegally in the Senate on 6 April 2021. Why and how? The Amendment (No. 1) Bill failed to get two-thirds majority support in the Senate in 2017. Thereafter, the legislation lapsed by operation of law when the 8th Parliament of Zimbabwe was dissolved before the July 2018 general elections. Hence, the Constitution of Zimbabwe Amendment (No. 1) Act was passed illegally. It is an unconstitutional law and is currently being challenged in the courts for violation of Section 147.

The Senate passed a non-existent Bill, thus creating a legal nullity. What a travesty of common sense! Indeed, an exercise in legislative delinquency and idiocy.

Coming to Amendment No. 2, yes, the women and youth quotas are progressive, but why rush and embrace a poisoned chalice? We are two years away from 2023. Where is the urgency on the quotas? Of course, the junta has a deadline of 15 May 2021. Why join and enable the regime’s nefarious agenda? The change in the retiring age of Judges from 70 to 75 is effectively changing the term limits of the Judges. Term limits can only be changed through a referendum, and the current office-bearers are not supposed to benefit from that extension. 

Hence Amendment No. 2 violates Section 328(7), creating a fatal and incurable illegality. The attempt to differentiate a term limit from an age limit is a false distinction, which should be dismissed with the contempt that it deserves. A term limit is stipulated and defined by age. Thus, when one changes the age limit, it is the same as changing the term limit. Pure and simple. Is this not obvious?

Thus, it can be said without equivocation nor ambiguity that Amendment No. 2 seeks to change the term limits for Judges (any alteration that requires a referendum) and also have the current Judges benefit from that adjustment, an ambition which is expressly forbidden by the supreme law. These are two distinct violations of the Constitution of Zimbabwe. What crass and belligerent lack of constitutionalism! Two devastating strikes against constitutionalism – piercing the heart of the doctrine!

In the Constitution of Zimbabwe, the motivation for having a running mate clause is to avoid a situation where the country’s President (or any president of a political party) appoints or allows the ascendancy of weak, mediocre and disposable Vice Presidents, who are never meant for succession or assumption of the country’s presidency.

Classic cases of this malady are (1) how Robert Mugabe used and abused Joice Mujuru and (2) Morgan Tsvangirai’s similar treatment of Thokozani Khupe. These two examples aptly describe the mischief that the supreme law sought to cure.  We want clear, well-defined and predictable leadership succession in political parties, leading to the same effective passing of the baton with respect to the national presidency.

The beauty and efficacy of the running clause were clearly demonstrated with the death of Bingu wa Mutharika in 2012 (Joyce Banda smoothly took over) and the demise of John Magufuli (Samia Suluhu Hassan smoothly ascended to the throne). Effectively and consequently, the running mate clause allows voters to be involved in the party and national succession. The choice of Vice Presidents becomes an election issue.

So why does the leadership of ZANU-PF (and other political parties) oppose the running mate clause? It is because the President of the party in cahoots with his or her bootlickers and sycophants prefer useless, incompetent, vulnerable, non-threatening, unelected and unelectable Vice Presidents who can be easily fired and are neither guaranteed of succession nor the national presidency.

At the centre of the aversion for the running mate, clause we find the inordinate lust for unbridled personal power, the objective of managing party factions to one’s selfish ends, the capacity to undermine rivals and the ambition to single-handedly control both party and national succession.

An elected Vice President Chiwenga will be a more assertive national leader and a formidable rival in the party to Mnangagwa. He will be difficult to remove or manoeuvre from office while clearly guaranteed to be the successor in ZANU-PF and maybe the country. No, no, all that describe a totally undesirable scenario! ZANU-PF succession and that of the nation must be left to an insecure Emmerson Mnangagwa together with his sycophants and bootlickers who consist of clansmen and tribesmen.

This is why the running mate clause is despised.

With respect to the changes to the devolution clauses, the starting point is acknowledging ZANU-PF’s unequivocal, absolute and indisputable lack of commitment to devolution. Eight years later, there is no implementation of most devolution provisions in Chapter 14, Sections 264 to 273. Why? Why have these clauses not seen the light of day!

More specifically, Section 264(1) stipulates that: ‘Whenever appropriate, governmental powers and responsibilities must be devolved to provincial and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively.’

Section 264(2) outlines ‘the objectives of the devolution of governmental powers and responsibilities to provincial and metropolitan councils and local authorities’ which include (a) ‘to give powers of local governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them’ and (b) ‘to promote democratic, effective, transparent, accountable and coherent government in Zimbabwe as a whole;’ ….  (d) ‘to recognise the right of communities to manage their own affairs and to further their development’; (e) ‘to ensure the equitable sharing of local and national resources; and (f) ‘to transfer responsibilities and resources from the national government in order to establish a sound financial base for each provincial and metropolitan council and local authority.’

Needless to say, eight years later, the envisaged metropolitan and provincial councils, and the prescribed leadership thereof, have not been established. None of the stated objectives of devolution has been achieved. There has not been even a feeble or measly effort by the ZANU-PF government towards their attainment. Why is this the case?

Now it is being suggested that Amendment No. 2 is promotive of devolution. If ZANU-PF despises devolution and has done nothing to advance the principle in eight years, why would they make changes to enhance devolution in May 2021? That is illogical. It is pure nonsense. ZANU-PF changes to the devolution clauses can only be meant to undermine and negate local governance and devolved authority.

There are two primary sources of ZANU-PF’s discomfort with devolution (a) total aversion to devolved power in principle and (b) fear of opposition control of provincial councils (PCs) in particular metropolitan councils (MCs). There are three key MCs –  Bulawayo, Harare and Mutare – which the opposition will dominate. This is a major concern to ZANU-PF.

Clearly, the Amendment No. 2 devolution changes are meant to undermine local governance by creating weaker councils while adding more power, authority and resources to the central government.

The objective of removing MPs from the membership of PCs and MCs is two-fold: (a) undermine the opposition-controlled MCs and (b) undermine the stature and impact of PCs and MCs. The change to merge provisions relating to PCs and MCs is meant to undermine MCs, which are likely to be dominated by the opposition.

For example, according to the changes, MCs will no longer be chaired by Mayors (mostly from the opposition) but officials elected in terms of Section 272 like PCs. The new provision for the election of 10 of the members of MCs by a party-list proportional representation system allows ZANU-PF to have members in MCs, where it has zero MPs or councillors.

As already explained, the opposition dominates the key MCs such as Bulawayo, Harare and Mutare. With Amendment No. 2. ZANU seeks to break this control. Removing Mayors from chairing of MCs is meant to undermine these opposition-controlled MCs. It is as simple as that. It is not rocket science. It is common sense.

Some have said MPs could not sit in PCs or MCs because Parliament must ‘supervise’ PCs and MCs, and so there will be a conflict of interest. What retarded thinking! Arrested intellectual development for sure! Who says Parliament must supervise PCs and MCs?

Whose flimsy idea is that? Obviously, that is not devolution. PCs and MCs must be empowered, independent and well-resourced so that they provide strong local governance. Responsibilities and resources must be ‘transferred from the national government in order to establish a sound financial base for each provincial and metropolitan council’ as stipulated by the supreme law – the National Constitution.

Clearly, it is pure and unadulterated dishonesty and duplicitous conduct to say that Amendment No. 2 enhances devolution.  It does the opposite!

Implications for Democracy

Does Amendment No. 2 further the ambitions of democracy? No. Are the people at the centre of this amendment? No. Does it promote a government of the people, by the people, for the people? No.

Instead, it advances a government of Mnangagwa (and his bootlickers/sycophants/clansmen), by Mnangagwa (and his bootlickers/sycophants/clansmen), for Mnangagwa (and his bootlickers/sycophants/clansmen). No, it is not even a government of ZANU-PF by ZANU-PF for ZANU-PF. Those clueless and incompetent ZANU-PF MPs and Senators just don’t get it!

As explained at the beginning, democracy is also about improving the material conditions of folks. How are the social and economic welfare and circumstances of Zimbabweans improved by Amendment No. 2? How does the legislation improve our economic fortunes as citizens? How many jobs and industries are produced by the amendment? Absolutely nothing on all accounts.

We are in the midst of a global pandemic; lives and livelihoods are being destroyed; there is rampant unemployment; the economy is in catastrophic decline, and extensive corruption is our middle name. However, what do we do? We are obsessed with the politics of power retention through weaponisation of law. We are busy repurposing institutions for the consolidation of authoritarianism while our citizens are overwhelmed by abject poverty and unprecedented economic decay. Where are our priorities?

Does Amendment No. 2 enhance democracy, or it consolidates authoritarian rule? Of course, the latter constitutes incorrigible ambition and desire. The people spoke on 16 and 17 March 2013, with 94.5% of 3.3 million voters affirming the supreme law of the land.  Why are we reversing the people’s expressed wishes?

What ZANU-PF has done in both the Lower House and the Senate is abuse its two-thirds majority or supermajority. The fact that a party wins such a majority does not justify it to abuse that strength against the people or negate the national interest. After the election of July 2018, ZANU-PF had a two-thirds majority.

Of course, we know that through deaths and un-held by-elections, the numbers have gone slightly down; in the Lower House, they have 176, short of 4 (the two-thirds majority number is 180 in the Lower House); in the Senate, they have 53, short of 1 (the two-thirds majority number is 54 in the Senate). Evidently, ZANU-PF abused these still high numbers, and with the help of a co-opted, unprincipled, mindless and puppet opposition, it was able to pass the amendments in both chambers.

In the struggle to protect and deepen democracy, we cannot just deploy legal arguments. We need political and moral ones too. The cumulative effect of the attack on democracy by Amendment No. 2 can be summarised as follows: enabling the rigging of elections with unassailable impunity in 2023 and beyond, the establishment of a pliant, compromised and captured judiciary, and reintroduction of an imperial presidency where Mnangagwa and his clansmen solely control and determine succession in ZANU-PF, and the country.

Indeed, Amendment No. 2 is a classic case of unbridled weaponisation of law. As indicated earlier, it is part of the consolidation of political power and repurposing of state institutions towards this objective. Amendment No. 2 is about authoritarian consolidation – an affront and negation of democracy.

Of course, the amendment does not operate in a vacuum. There are complementary strategies to it. These include; Amendment (No. 1) Act, the Patriotic Bill in the offing, lawfare (weaponisation of law), deployment of unrestrained, naked and violent repression, widespread harassment and targeted co-optation of the opposition, political patronage, systemic corruption, primitive tribalism and shameless clansmanship.

Indeed, there is a method to this madness against democratic principles:  power retention and consolidation at any cost, with the obvious causalities being democracy, the economy, and the national brand. Amendment No. 2 creates the foundation for authoritarian consolidation, anchored in despotic power retention.

It is a total negation of democracy.

Implications for Constitutionalism

Is Amendment No. 2 respectful of the supreme law? Is it in compliance and accordance with the Constitution? Is it within the spirit of the Constitution? No, No and another eloquent No. Is it in breach of the Constitution? An unequivocal and unambiguous Yes! Amendment No. 2 constitute an incurable fatal breach of the national charter.

Is Amendment No. 2 promotive of limited government? No. It gives arbitrary powers to the President. Does it enhance people’s participation in the exercise of the powers of the state? No. It removes public recommendations and public interviews from the selection of Judges. Furthermore, it undermines devolution.

Is Amendment No. 2 promotive of functional separation of powers? Certainly not. It creates a pliant and compromised judiciary. It creates illegal Judges. It disrespects the Constitution and its spirit. It is a violation of the Constitution. Hence the amendment offends both constitutionalism and constitutionality. The legislation is an example of rule by law and not the rule of law. This is undesirable. We want the rule of law, predictability of rules and certainty of laws.

Amendment No. 2 is an unconscionable affront to constitutionalism.

Specifically, breach of Section 328 (7) on term limit is astounding. As explained earlier, (a) Section 328 can only be changed through a referendum, and (b) current officer bearers cannot benefit from the change. Both requirements have been violated. The term limit vs age limit differentiation is a false distinction. The term limit is stipulated and defined by age. When you change the age limit, you change the term limit. Pure and simple. By disregarding this commonsense position, the amendment creates fatal and incurable illegalities.

The result of all this includes illegal and illegitimate judges, a compromised and pliant judiciary. Can Judges – the express beneficiaries of the illegality cure the illegality? Can turkeys vote for Christmas? Most unlikely! That is why we call them fatal and incurable illegalities.

After not implementing devolution clauses in eight years, can ZANU-PF be trusted to enhance these provisions? How do you improve that which you have not implemented? Provincial and metropolitan councils enshrined in the national charter have not been constituted since 2013. Amendment No. 2 changes seek to dilute the devolution clauses and strengthen central government control. 

The objective is to increase presidential influence by dismantling devolution provisions while continuing with the practice of appointment of Provincial Governors or Resident Ministers by the President. This practice – an abuse of Section 104 – is, although not strictly illegal, it is against the devolution spirit of the Constitution.

In Amendment No. 2, the devolution changes are deceptively couched in the language of ‘constitutional changes to strengthen devolution’. What crass deceit! Naïve, hapless and unsophisticated opposition MPs are easily duped and hoodwinked by this. Sad.

To ZANU-PF, how cynical can you get? How can you ‘strengthen’ devolution provisions which you have not even implemented for eight years? How do you strengthen devolution by dismantling it?

ZANU-PF’s total and intrinsic disdain for devolution is unquestionable. Its dislike of any control of devolved authority by the opposition is palpable.

Amendment No. 2 is an egregious and unprecedented breach of both constitutionalism and constitutionality. It is a calculated and deliberate assault of these two sacrosanct legal constructs.

Broader Implications: Economy and Global Image

Attacks on democracy and constitutionalism affect economic activities, performance and prosperity.  Lack of constitutionalism and the absence of the rule of law create uncertainty and damage investor confidence, both domestic and foreign. Amendment No. 2 is ruinous to the economy. It undermines social and economic development.

Irreparable damage has been done to our standing as a nation within the region, the continent and globally. The amendment has extensively tarnished our national brand.

We are irrevocably drifting towards a despicable pariah state devoid of any semblance of the rule of law, thus undermining all our efforts of global re-engagement. We can kiss goodbye to our aspirations to re-join the Commonwealth. There is no place for unprincipled and unimaginative despots in this family of nations that are rooted in democracy and constitutionalism. Rogue nations are neither tolerated nor entertained.

ZANU-PF has embarked on a self-inflicted global regime shaming journey. They have placed our nation in a hostage to fortune scenario. Let me start by saying: ‘I am opposed to sanctions against Zimbabwe. I want the sanctions against Zimbabwe to be removed.’ I hope the regime and its unintelligent, pitiful and clumsy apologists hear me loud and clear! Do not get it twisted. I am certainly not calling for sanctions against the country.

Well, sadly, Amendment No. 2 constitutes self-imposed sanctions against Zimbabwe. We are imposing sanctions against ourselves by:

• violating our Constitution
• creating illegal judges
• driving the country into a constitutional crisis
• manufacturing a compromised and pliant judiciary, and
• re-establishing a corrupt imperial presidency anchored and rooted in tribal and clansmen politics.

These are the sanctions that Emmerson Mnangagwa has imposed on Zimbabwe!

More importantly, these egregious transgressions provide those who have imposed sanctions against Zimbabwe with reasons why they should maintain their punitive measures against us.

This is common sense!

Justification for Economic Sanctions

How can we be so self-destructive as a nation? Is it sheer ignorance of a leadership bereft of statecraft competence, or is ZANU-PF just being spiteful? Which is which?

In a cynical way, Amendment No. 2 provides justification for the maintenance of economic sanctions against Zimbabwe by our detractors. Is that ZANU-PF’s objective? Surely, the country does not deserve this indictment.

The amendment invites those who wish to impose more sanctions against us to do so. ZANU-PF is begging for more sanctions against the country. This is shameful.

How do you go around asking for the removal of sanctions when you are carrying out more of the behaviour that you are being punished for? How dumb can you get?

Amendment No. 2 attracts more sanctions against our beautiful country. You are giving those who want to impose sanctions against Zimbabwe a big stick to whip your behind!

This is not intelligent. It is pure idiocy. Shame on you. With this legislation, you are begging for more sanctions against the country. Is this not obvious?  

Way Forward – The Fightback

We cannot take these ZANU-PF shenanigans while lying down. There are four broad classes of strategic counteractions: legal efforts, political manoeuvres, an invigorated civil society, and a principled and united opposition.

We must support and buttress the ongoing legal challenge against Amendment No. 1. If necessary, we must mount fresh court actions against this legal nullity.

We must launch legal challenges to Amendment No. 2, passed in the Senate on 4 May 2021. This can be done before or after the presidential signature. However, the sooner, the better.

There must be political mobilisation, public campaign and elaborate demonstrations against Amendment No. 2. Even though both Houses have passed it, the public must be conscientised about the legislation’s evil ambitions and detrimental impact on both our politics and the economy. We must also mobilise against the Amendment No. 1 and the sinister Patriotic Bill being currently crafted by ZANU-PF. 

In all these revolutionary activities, we must put civil society and ordinary people, particularly women and young people, at the centre. Civil society must be the engine of our struggles, and ordinary people must own the processes. There must be an all-stakeholder driven ecosystem approach.

We must actively devise strategies to stop future constitutional changes and the Patriotic Bill. The regime has tasted blood. It will want more. Next in line are constitutional amendments to the presidential term limit, the presidential age requirement, and brazen attacks on our inalienable rights contained in the Declaration of Rights. The junta must be stopped in its tracks.

We must make Amendments No. 1 and No. 2 election campaign issues for 2023. We must make ZANU-PF pay politically for these disastrous legislative assaults.

All opposition presidential candidates (without exception) must declare their running mates in 2023 to assert their credibility in the fight against Amendment No. 2. Tell us who your successor is going to be. Empower him or her!

Just because there is no legal requirement for declaring running mates does not mean that it should not be done. If you belief in the efficacy and rationale of the running mate clause, you must walk the talk. The opposition must have different values from ZANU-PF. This must be our lived political reality – our progressive and revolutionary experience.

There must be a clear united opposition strategy to stop a ZANU-PF two-thirds majority (super majority) victory in Parliament (Lower and Upper) in 2023 and beyond. In fact, strategically, no party should be allowed to attain a two-thirds majority in Parliament.

Opposition parties must stop the misguided, misplaced and unintelligent concentration on and obsession with the presidential election at the expense of the parliamentary (Lower and Upper House) polls. Logistical, human and financial resources must be strategically deployed in pursuit of parliamentary seats. We must be razor-focussed on legislative control.

There must be deliberate efforts to improve the quality and capacity of opposition presidential and parliamentary candidates. This can be done by putting a premium on:

• meritocracy
• technical competence
• proven capabilities
• demonstrable commitment and ethical leadership
• strategic thinking, and
• a track record of measurable achievements.

We need competent and visionary leaders with technocratic and strategic capacity in both the Legislature and the Executive.

We, the people, must become the revolution we want to see in Zimbabwe.

The fightback is on.

There will be neither retreat nor surrender.