Beyond Violence 

Out With the Old, In With the New: Just how 'new' is Zimbabwe’s constitution?

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Zimbabwe is in the process of change, due to the recent adoption of a new constitution.

While many political commentators do not feel that there were any issues with the Lancaster House Constitution, the new constitution was proposed as a way to address the multitude of problems faced by Zimbabweans. Mugabe has stated that while the Lancaster House Constitution gave Africans political power, it denied them economic power. This, he says, rested in the white privileged minority. This rhetoric of promoting a Zimbabwe free from Western influence, and where Zimbabweans are responsible for their own future, has been promulgated by those in power to frame the new constitution as a major development. However, it could be argued that the past problems of the state did not rest in the form of the constitution, but in the fact that parties failed to respect the fundamental legal provisions enshrined in the constitution. The implementation of the new constitution faces a raft of difficulties, some of which have already become apparent. In order to successfully carry out the positive reforms embedded in the new constitution, Zimbabwe will not only need to address the human rights abuses which have plagued the country for the last 40 years, but also usher in a new era of constitutionality.

The constitution reform process was initiated due to widespread violence during the 2008 election. The election was marred by allegations of state-sponsored violence, resulting in the deaths of over 200 people and the torture of thousands more. On top of this, the country was faced with a spiralling economy, which resulted in the abandonment of the national currency and the adoption of several external currencies. Therefore political parties decided to enter into a Global Political Agreement (GPA) in order to address the challenges facing the country. The signatories of the GPA committed to “resolving once and for all the current political and economic situations and charting a new political direction for the country” (GPA, Article 2). The centrepiece of this agreement was the drafting and implementation of a new constitution.

Article VI of the GPA stipulated that the Zimbabwe African National Union – Patriotic Front (ZANU-PF) and Movement for Democratic Change (MDC), would set up a Parliamentary Constitution Select Committee (COPAC) to facilitate the drafting and implementation of a new constitution. The time frame under the GPA gave COPAC 8 months to draft and then table the new constitution, ensuring that the process for drafting, debate and public referendum would take a total of about a year and a half. However, political bickering and accusations of international meddling extended the drafting process from 8 months to two years. The new constitution was finally assented to in April 2013, and signed into law on the 22nd May 2013.

The delay in enacting the constitution has lead to fundamental problems for the constitution implementation process. The legal need for Zimbabwe to hold elections this year clashes with the implementation of the Constitution and means that many of the reforms now have to wait until after the election has been decided before they can come into effect. This is problematic as many of the reforms deal with making the election process safer and more transparent. The difficulties implementing the new constitution in coordination with the election have been further hampered by other election problems such as the poor voter registration and education exercises and alleged voter intimidation practices.

During the constitutional referendum, the voter registration process faced a number of problems. The Zimbabwe Electoral Commission (ZEC) failed to initiate their mobile voter registration campaign due to lack of voter education, scant financial resources and poor publicity . Hundreds of potential voters were therefore turned away for not possessing the required documents, such as proof of residence. On top of this, immigrants were denied registration even though they possessed Zimbabwean identity documents. There was also an allegation by MDC-T and human rights activists that the Registrar General had neglected areas known to support the opposition parties in an effort to systematically disenfranchise potential MDC-T supporters from registering as voters. According to Oxford Human Rights Hub , ‘police decrees’ have been used to ban door-to-door voter mobilisation, without basis in law, as an attempt to selectively persecute non-ZANU-PF supporters. These factors raise the question of whether the introduction of a new constitution will actually lead to a culture of constitutionality, where political leaders will respect legal provisions.

While the new constitution aims to decrease human rights abuses and increase the efficacy of democracy in Zimbabwe, there have already been a number of reports claiming breaches of liberty and security. In early 2013 several high-profile civil society organisations in Zimbabwe had their offices raided by the police, and a number of human rights defenders were arbitrarily arrested. Civil society activists have continued to clash with the police due to claims that these activists had taken part in illegal voter education without the consent of the Zimbabwe Electoral Commission.

The constitution thus has the potential to herald positive change, a better future and a more transparent democracy, but this can only happen if it is respected. At present, concerning signs indicate this is not the case. Constitutional amendments only offer a superficial nod to political reform; they need to be supported by a culture of political tolerance and the willingness of political leaders to relinquish their claims to power.

The question is, can the constitutional changes be respected, and could legal tools define the bounds of legitimacy and thus political parties’ actions? Or are legal changes merely tokenistic gestures feigning democratic legitimacy? Zimbabwe needs to promote a fundamental change toward peace, safety and legality for the constitution to produce its intended positive outcomes. The world is watching Zimbabwe’s election to see if this will be the case.

Keep watching for our next blog post, discussing the indecision on the election dates.

Further reading:

New Zimbabwe Constitution- Lancaster House: What they really don't want to see in the new constitution

COPAC- Global Political Agreement (GPA)

Barnaby Locke is a Law and Psychology graduate from the University of Auckland and the Content Manager for the Zimbabwe Campaign at Beyond Violence. He has a particular interest in International Human Rights, European Union Law and the legal complexities in Post-Colonial developing countries.

Written by Barnaby Locke and Madeline King and published on 19-June-2013

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