Zimbabwe’s Imperfect Constitution
Think Africa Press – 22/03/2013 – por Shamiso Lewis
Zimbabwe’s newly-approved constitution curbs presidential powers and bolsters human rights, but will this really bring about change?
Last Saturday, Zimbabweans voted overwhelmingly in favour of the new draft constitution. All the main political parties had been urging the people to approve the draft, and of the three million who cast their ballots, 95% voted ‘yes’.
But although it took years to write, Zimbabweans only had three weeks to get to terms with the 170-page document. Perhaps reflecting this fact, Precious Mukadenge, a mobile phone credit hawker in Harare, told a reporter, “I think it means that we can’t have another president who will be in power for 33 years”.
Indeed, as it goes through the process of being officially enshrined, a number of questions remain as to what is actually contained in the constitution and what effect it will have on Zimbabwe’s political landscape.
A whole new world?
If fully implemented, there are a number of main measures that could have a significant effect on Zimbabwean politics.
One of these is the setting of a limit of two five-year terms on the presidency. This was one of the draft constitution’s most prominent and popular provisions. School teacher Petronella Dzikiti commented as she queued to vote, “We don’t want a situation like we have today, when some of us knew one leader as a child who remains there when we are grown-ups”.
Crucially, however, this measure will not be applied retrospectively, meaning President Robert Mugabe – who has already been in power for 33 years – could in theory remain president until 2023 before he is forced to step down. In that sense, the importance of the new term limits might not be felt for a while yet.
The new constitution also reduces the power of the presidency in other ways. The president must, for example, obtain the support of two-thirds of lawmakers to declare public emergencies and dissolve parliament. The document also removes the president’s right to veto legislation and devolves some power and political responsibility to provincial authorities.
The new charter further introduces a number of sweeping measures aimed at tackling a ‘culture of impunity’ in Zimbabwean politics. As well as including a bill of rights which stipulates freedom of expression and a free media, the constitution also brings about an independent constitutional court and an anti-corruption commission to deal with governance abuses. As Prime Minister Morgan Tsvangirai, leader of the Movement for Democratic Change (MDC-T), explained, “This is a new political dispensation, and I hope it sets in a new political culture – from the culture of impunity to a culture of constitutionalism”.
Human rights have also been strengthened. New provisions offer greater protection against malicious arrests and prosecution, introduce new forms of redress for victims of violence and intimidation, and pave the way for the establishment of a human rights commission and peace and reconciliation commission. In addition to this, significant moves have been made towards gender equality and the empowerment of women – such as through the reservation of 60 parliamentary seats for women and measures to empower women in employment. Zimbabwe’s existing constitution had been labelled the worst in the world in terms of women’s rights.
New constitution, same old abuses?
But while there are many areas in which the new constitution marks a notable shift from the old, some claim it doesn’t go nearly far enough and fails to deal with a number of problems.
Critics of the draft, for example, are concerned that the president can still maintain a platform of patronage, impunity and a tight grip on all arms of the state. Aside from the fact the president will be the head of state, head of government and commander-in-chief of the defence forces, the constitution allows the president to unilaterally appoint cabinet ministers, the attorney-general and ambassadors, and deploy the military within Zimbabwe before parliamentary oversight. “Our major problem in Zimbabwe has been the concentration of power in the president…That problem has not been solved by the current constitutional draft”, commented Lovemore Madhuku, leader of the National Constitutional Assembly, a coalition of pro-democracy groups.
Unfortunately, the lack of accountability that Tsvangirai wishes to eliminate has the potential to prevail under the new constitution. Section 98 of the document protects a sitting president by stating, “The President enjoys immunity from civil or criminal proceedings for things done in his or her personal capacity until after he or she has ceased to be President”. After office, “good faith” is cited as a legitimate defence for official acts.
Besides the sections regarding presidential powers, there are also concerns regarding human rights. While the new constitution does have greater protection of certain rights, the government’s failures to amend repressive laws – such as the Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Criminal Law (Codification and Reform) Act – complicates the picture. These laws have previously been used to curtail basic rights and provisions in AIPPA and POSA that provide criminal penalties for undermining the authority of or insulting the president as well as organising public meetings without informing the police, have routinely been used to arrest and prosecute activists.
An imperfect document
In response to criticisms of the new constitution, politicians have generally reacted not so much by insisting the document is perfect, but rather by replying in fairly equivocal terms. For example, Priscilla Misihairabwi-Mushonga, a minister and secretary-general of MDC-M (a breakaway faction of the MDC), who helped write the constitution commented, “Because we had to negotiate, it can’t be a 100% document but is it indeed so bad that you think that it has not moved us forward?”
This is an understandable attitude. Presidential term limits, the removal of presidential powers to veto legislation, improved human rights and bolstered women’s rights are all to be celebrated. But at the same time, we cannot ignore the many things on which constitution is silent.