8 mistakes in the 2013 Constitution
ON May 22 2023, Zimbabwe’s Constitution turned 10, having become effective on 22 May 2013. This year, we mark the 10-year anniversary. I choose to mark this day with a reflection, and my reflection is on the mistakes we made when we crafted that Constitution.
That we made mistakes is not the death of our constitutional project, firstly. Yes, we made monumental mistakes, but the fact remains that we are not where we used to be, and our Constitution ranks among some of the best in the region and elsewhere.
Secondly, we are a young constitutional democracy. We have no experience with these things; we are learning. Thirdly, constitutions are living documents; they will forever be in a never-ending state of pursuing perfection and weaving through to cover any loopholes, those apparent in the instant, and those to become apparent later. It is experiences and testing times that show us the weak points.
Thus, even as I attempt this exercise, many mistakes remain embedded, camouflaged from the naked and discerning eye, simply because time and experience are yet to test the relevant provisions. In this paper, I discuss what I believe to be apparent mistakes that have been illustrated by our experiences in the first decade of our nascent Constitution.
We have many great and novel aspects in modern day constitutionalism in our Constitution: Chapter 12 institutions supporting democracy; and an expansive and justiciable Declaration of Rights with first, second and third generation rights. Section 44 is novel in its formulation: it imposes obligations to respect, promote, fulfill and protect the Declaration of Rights to all, state and non-state, juristic and natural persons, alike.
Thus, we will find no equivalence elsewhere. We have 16 official languages (section 6(1)); this has no match. We have devolution of power and responsibilities (Chapter 14). We have a transitional justice mechanism — the National Peace and Reconciliation, albeit with a 10-year sunset clause (sections 251-253). And never mind the controversies and ineffectuality this body has been up to. We have a corruption-fighting mechanism, the Zimbabwe Anti-Corruption Commission (sections 254-257) – something many constitutions do not have.
The President is not allowed to veto legislation in law-making (section 131); this is a great thing. And many more.
But there are things I think we should have done better, some of them only in hindsight. These are architectural issues. I am alive to the fact that the Constitution was negotiated; there were many drafts. There were long days and nights and debates. There were walkouts. There were stalemates. There were compromises. Nonetheless, even compromise documents must be critiqued.
We missed an opportunity to clearly stipulate an election date, and we now have to deal with secrecy
Why should the date of the next election be a secret, to be pronounced by the incumbent, when he or she feels ready and feels like pronouncing the date? What if he or she does not feel like pronouncing it, or decides to pronounce it on short notice? Who suffers what prejudice?
There is no reason why a whole nation and an entire world should be kept guessing about when we are having elections, unless someone somewhere wants to do something with election timing to derive a benefit. Assuming nothing is done or is about to be done in manipulating timing, the optics and perception are enough to taint credibility.
In other countries, take Kenya for instance, we already know that the next general elections will be held on August 9, 2027. Why? Because the Constitution stipulates the day of polling in an election year.
In hindsight, not stating the polling date when we developed the Constitution was a mistake. Ordinarily, it should not be an issue that the Constitution does not stipulate the polling date. But context matters: Zimbabwe is an arena for disputed elections which has all sorts of manipulations.
The case of Douglas Togaraseyi Mwonzora and Movement for Democratic Change-T v Zimbabwe Electoral Commission, the President of the Republic of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs CCZ 20/2023 which sought to interdict the President from proclaiming elections when they become constitutionally due, on account of a defective 2023 delimitation report, was a constitutional crisis in the making had the Court decided to go with Mwonzora’s extraordinary relief sought. Fortunately, this was averted when the Court dismissed the matter this May 2023.
The issue of election date was in fact the very first case to be determined by the then new Zimbabwe Constitutional Court in 2013 in the case of Jealousy Mbizvo Mawarire v Robert Gabriel Mugabe N.O., Morgan Richard Tsvangirai N.O., Arthur Guseni Oliver Mutambara N.O., Welshman Ncube and The Attorney-General CCZ 1/13 under the old Constitution.
Interestingly, in that case Mawarire was seeking the opposite of a delayed election, but an order for the then President Robert Mugabe to proclaim an election at a sooner date, in the process undermining the efforts that SADC as the guarantor of the Global Political Agreement was undertaking. A Sadc meeting that was scheduled for Maputo in early July 2013 was postponed on account of the Constitutional Court judgment in Harare.
Sadc was meant to ensure that Zimbabwe could actually hold an election that would be credible, peaceful, free and fair, which included dealing with matters that were arising from the Global Political Agreement and the electoral road map. The result was that we were plunged into an early election without Sadc accompaniment that ended the Government of National Unity. The Mawarire case was an apparent “tortoise on a lamppost litigation”, suggesting a scheme designed to defeat Sadc processes.
The Constitution of Zimbabwe states that general elections are held no later than 30 days before the end of the current term, which current term commenced on 26 August 2018 and will end on 25 August 2023. In the case of the 2023 elections, section 161(2) which states that “If a delimitation of electoral boundaries is completed less than six months before polling day in a general election, the boundaries so delimited do not apply to that election, and instead the boundaries that existed immediately before the delimitation are applicable”, to conclude that given when the delimitation report was gazetted, we only have the window of August 20– 26, 2023 for the election.
Then, polling should be held no sooner than 30 days after the nomination of candidates. Such nomination must be set at least 14 days after the publication of the election proclamation.
Why should we crack our heads to calculate an election date? This was and remains unnecessary. The actual polling day in an election year should have been stated in the Constitution, given that in this country we do harmonised elections as required by the Constitution — where the election of the President, Members of Parliament and local councillors happen at one go.
We allowed the Constitution’s basic structure and the structure of government to be amended without a referendum
We only entrenched three parts of the Constitution: Chapter 4 (Declaration of Rights), Chapter 16 (Agricultural Land), and section 328 (Amendment of Constitution). Entrenched provisions refer to provisions that cannot be easily amended; they require a special