Position Paper Number 2.
Issue Date: 15 June 2015
The Elitist Character of Zimbabwe’s New Constitution and Understanding Our Undemocratic Contemporary Political Order
1.1 The legal reality that is Zimbabwe’s new constitution, in the two years that is has existed, was never intended as the ushering in of a new democratic era for the country. This is despite the controversial constitutional outreach and eventual referendum that saw 3 million people voting in favour and 178 489 voting against the supreme legal document of the country.
1.2 Since its promulgation into law following presidential assent on 22 May 2013 and its established framework for the holding of harmonised elections on 31 July of the same year, the new constitution has taken on its true character of being an incremental, elitist and political power seeking document.
1.3 This is evidenced not only by its transitional clauses in relation to executive authority, but also the fact that it has not resulted in any significant democratic shift in the way in which the people of Zimbabwe are governed.
1.4 What it has unfortunately led to is a continuation of the concentration of power in the hands of executive, an expansion of the institutional reach of the same through guided devolution and decentralization of the state, a default bill of rights that depends on state benevolence for it to be justiciable and a parliament that serves more as a distribution of state largess than it does democratic oversight of the executive.
1.5 But perhaps the most critically disparaging aspect of the new constitution’s is less its incrementalist content and more its elite functionalism without any indications of it being structured to deliver a new people driven democratic culture.
1.6 The signs of the latter are to be found in the already announced intention to amend it by the ruling Zanu Pf party. Not that constitutions cannot be amended but to change them so soon after a national referendum betrays the actual character of the document as one of political expediency as opposed to organic entrenchment of democratic values and principles.
1.7 It is within this context that the new constitution cannot be viewed as people driven, democratic or a final document that will best serve posterity. This is argued because of the following key reasons:
a) The new constitution was a political party compromise document that was negotiated during the tenure of the inclusive government. This fact is perhaps what most cripples the new constitution. Being devoid of the key political element of being established for posterity and undermined by the political expediency that was the inclusive government, it becomes a document that remains relevant largely to those that at any one given point yield state power, over and above any organic social democratic meaning to the citizens of the country.
b) The national referendum that preceded its promulgation, was politicized to the extent of being a dress rehearsal for the subsequent June 2013 harmonised elections. It was therefore not just a referendum in the broadest possible understanding of the term but a cajoling of the Zimbabwean people to accept that which the political elite had deemed to be correct. To this extent a great number of Zimbabweans still do not know let alone the comprehend the full import of the new constitution. This is a reality that underpins the fact of the elitist nature of the constitution, despite claims by the then inclusive government that it was derived from a people driven process.
c) The aftermath of both the referendum and the enactment of the new constitution have been characterized by general government nonchalance as to the establishment of subsidiary enabling legislation. This is largely due to not only an evident lack of political will but the general disdain and disregard that the government has toward its own elite document. A disdain that stems from the fact that the new constitution is viewed as utilitarian only where and when and concerns power and the distribution of state largesse as opposed to the advancement of ingrained democratic values into our political system and culture. That this can occur so soon after the supreme law came into effect demonstrates its clear disjuncture from the lived realities of the people.
1.8 It is therefore imperative that the new constitution be placed into its full political context so we come to an understanding as to its full import.
Such context would best be encapsulated in the following two points:
a) The new constitution, given the undemocratic and inorganic manner of its genesis cannot be viewed as a document that is indicative of national democratic arrival. The search for a new democratic, people driven constitution for Zimbabwe is still a journey that must be embarked on in a manner that includes but is not limited to political parties in government as is the current case.
b) That while the new constitution is a legal reality that cannot be avoided, all Zimbabweans must remain cognizant of its fundamental democratic inadequacies. Even if they were to get piecemeal changes via some of its clauses, these gains would remain a far off the mark with regard to the truly social democratic society that all Zimbabweans regardless of age, race, colour, gender and class deserve.
c) And lastly that in its legal reality, the new constitution, is not the panacea to our past, current and future problems with authoritarian rule or cosmetic and pretentious democratic governance. All Zimbabweans need to continue their search and conscious struggle for a social democratic society despite claims by political party leaders to a false narrative of arrival. This must be done with full knowledge of our past mistakes as a country and for posterity.