I wish, first and foremost, to satisfy my greatest debt of gratitude which I owe to the National Constitutional Assembly for their production of the simplified Constitution of Zimbabwe whose purpose is no doubt to help the oppressed and suffering people of Zimbabwe to get to know and understand the fundamental laws that govern our country and then make informed judgement about what a constitution should have to say. I was going through the simplified constitution and have just realised that ours is nothing but a rotten constitution. I have also remembered one S. Chimbindi who sometime in 2007 wrote from Canada sympathising with me on the need for a new constitution.

I had written in December 2006 that: 'A new, democratic, people-driven and people-centred constitution remains key to the Zimbabwe problem'. His/her argument was that people like Dr Lovemore Madhuku and Dr Reginald Matchaba Hove have been fighting for a new constitution but without success etc. In my unpublished response to Chimbindi I said without beating around the bush that I didn’t need sympathy, especially from people whom I thought were enjoying a sybaritic, opulent and limousine type of life that an average person in Zimbabwe could not enjoy. I was in my fourth and final year of the Bachelor of Social Work Honours Degree at the University of Zimbabwe when I wrote that article.

I was borrowing Democracy and Human Rights from the Department of Political and Administrative Studies and I happened to be Dr John Mudiwawashe Makumbe’s student under the tutorship of Miss Evelyn Vutuza. But why should I be talking about this? The thing is that we were given an assignment in which we had to critically examine any five key provisions of the Constitution Amendment (No. 7) Act in relation to democratic development in Zimbabwe and I will shortly share with you my submission on the same. But why am I saying that ours is a rotten constitution? Go to Chapter IV of our constitution, which talks about the executive. Are you there? I am sure you are all there. Look at Part 1, which talks about the president. Below there is Section 27 with subsections 1 and 2. I am not comfortable with subsection 2. Have you read it my fellow citizens? It is talking about the president being above all other people in Zimbabwe. Could it be that some people are more equal than others?

In his essay entitled 'Some comrades are more equal than others', the late Professor Masipula Sithole attributed the problems of the day to the forgetful political class. He also made reference to the fact that most people in our country were having it rough; they were hurting; they felt cheated over what he termed the 'independence dividend'. Ndiyo nguva yainetsa Chenjerai ‘Hitler’ Hunzvi. He even made reference to remarks made by the then ‘perceptive’ Prime Minister Robert Mugabe in 1987, who when observing the restlessness of the masses said that: 'The people feel betrayed. They are after our blood'. The answer, according to Professor Sithole, was the Sandura Commission, which probed a motor vehicle scandal involving senior politicians.

Constitution Amendment No. 7 shows us the extent to which we can rightly say ours is a rotten constitution. For this reason, I will reproduce my assignment, the one that I wrote in November 2006 for us to be able to understand why we really need a new constitution in Zimbabwe. We don’t need the Kariba document for our constitution. I honestly don’t think that Zimbabwe is made up of people who are diffident. Here is my assignment:

The debate surrounding Constitution Amendment (No. 7) Act of 1987 is problematic and value laden, especially when taking into cognisance its relation to democratic development in Zimbabwe. Perchance this explains why its critics have been constantly and consistently pointing out that its key provisions are anathema and antithetical to a smooth trajectory from authoritarianism to democracy, as Mahmood Monshipouri (1995) lucidly puts it. The National Constitutional Assembly (NCA) in its press statement released on 29 March 2006 attributes the tattered, torn and shabby state of the constitution of Zimbabwe to Amendment No. 7 and this in itself is a clear indication that Constitution Amendment No. 7 Act has done no good to the development of democracy in Zimbabwe. This discussion is dedicated to the proposition that certain provisions of the Constitution Amendment (No. 7) Act of 1987 have dealt democratic development in Zimbabwe a lethal blow and this discussion shall examine five such provisions.

One key provision of the Constitution Amendment (No. 7) Act in Zimbabwe is the creation of the position of executive president. Mair and Sithole (2002) write that the creation of the position of executive president led to the combination of the ceremonial role of the old president with the executive functions of the prime minister. Such a move dealt democracy a lethal blow in Zimbabwe. This is so largely because it turned Mugabe into an unquestionable dictator by his virtue of being above all other people in Zimbabwe. Being above all other people means that one can also be above the law and this hinders the development of democracy in the country. Who in his right mind then can deny the fact that the creation of the position of executive president gave Mugabe excessive powers which, to use Ncube’s (1993) turned him into a 'myopic little village tyrant', interested only in his own good and wielding power for the sake of satisfying his ego. This makes sense especially when considering the fact that no other person has ruled Zimbabwe since 1980 when Zimbabwe gained its independence from Great Britain.

Another key provision of the Constitution Amendment (No. 7) Act is that in addition to appointing members of parliament and the cabinet, the executive president was also given the power to appoint the governors of Zimbabwe’s then eight provinces and these governors automatically became non-constituency members of parliament. The main problem with this provision is that opposition political parties are not entitled to also appointing non-constituency members of parliament. In other words, the president and the ruling party have an unfair numerical advantage of those who represent them in the house of assembly yet opposition parties are denied the same advantage. This has a tendency of creating a clientilistic pattern of rule whereby appointees become accountable to the appointer and not to the populace. This discourages the development of democracy in that appointees work to please the president at the expense of the citizen. Criticizing the president therefore will be tantamount to treason and in light of this illumination; it can be argued that Constitution Amendment (No. 7) Act is anathema to democratic development in Zimbabwe.

Noteworthy also and germane to this discussion is the fact that Constitution Amendment (No. 7) Act empowers the president to veto any bill presented by members of parliament as it pleases him. Such power works against the development of democracy in Zimbabwe. The president can accept a bill that has serious negative implications for citizens just because of selfishness. This is true when looking at the draconian laws that were pushed through in parliament. The Public Order and Security Bill is one such bill that was signed into law yet it severely curtails the citizen’s right to assembly, association, expression, movement, to make but a quick, short list which could be extended many times over. The Access to Information and Protection of Privacy Bill also signed into law is also believed to be anathema to freedom of expression and media freedom. Surprisingly, the two bills are unjustified in a democratic society but because Mugabe wanted to maintain his grip on power, he signed them into law. This also means that any proposals that threaten Mugabe’s power will be pushed aside and this is not good for democratic development in Zimbabwe.

Constitution Amendment (No. 7) also provides for the prerogative of mercy. The incumbent president has excessive powers from this amendment to ensure that convicted members of his party do not serve prison sentences. This encourages contempt and disregard for the rule of law especially by members of the ruling party. Several ZANU PF supporters, the police, soldiers, war veterans and youth militia responsible for political violence in the elections of 1990, 2000 and 2002 were all pardoned. Corrupt government officials such as those involved in the ‘Willowgate scandal’ were also pardoned. The question we should grapple with is: Will such acts of mercy be extended to members of the opposition? The answer is no. If the answer is no then prospects for democratic development in Zimbabwe remain uncertain at best and gloomy at worst.

Finally, Constitution Amendment (No. 7) Act provides for presidential immunity. This means that as long as he remains in office of the president, he (Mugabe) shall not be charged with a criminal offence nor shall he be sued in any court of law. This places the president above the law and this contradicts Article 7 of the Universal Declaration of Human Rights which says that: 'All are equal before the law and are entitled without any discrimination to equal protection of the law'. This threatens democracy and its development in Zimbabwe. When some people are more equal than others it becomes difficult for any country to enjoy social equality, parity, fairness, equal opportunity, impartiality and egalitarianism and because of this it can be established beyond any reasonable doubt that key provisions of the Constitution Amendment (No. 7) Act are antithetical and incompatible with democratic development in Zimbabwe.

On the whole, it can be concluded that the aforesaid provisions are the five key provisions of the Constitution Amendment (No. 7) Act which have dealt a smooth trajectory from authoritarianism to democracy a lethal blow as has undoubtedly been depicted in this discussion. I put it to you and I rest my case.

* Mutsa Murenje is a Zimbabwean human rights defender and an intern with World Youth Alliance Africa. He writes here in a personal capacity.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.

BIBLIOGRAPHY

Mair, S & Sithole, M (2002) Blocked Democracies in Africa. Case Study Zimbabwe. Konrad-Adenauer-Stiftung
Monshipouri, M (1995) Democratisation, Liberalisation and Human Rights in the Third World. Lynne Reinner Publications Inc
NCA (1999) Constitution of Zimbabwe. Simplified Version.
NCA Press Statement On the Proposed Establishment Of A Human Rights Commission. 29 March 2006
Ncube, W (1993) ‘Constitutionalism and Human Rights: Challenges of Democracy’ in Nherere, P & D’engelbronner-Kolff, M (eds) The Institutionalisation of Human Rights in Southern Africa. Nordic Human Rights Publications