The typical design of the modern state has three arms: the executive, legislature, and judiciary. The concept of separation of powers is attributed to 18th Century French Philosopher, Montesquieu who had studied the British system of government. Although his view of the British system was inaccurate, the model has been adopted in most modern states, albeit with varying levels of variations and intersections between the arms of the state.
Under the separation of powers, parliament makes laws, the executive implements and administers the laws, while the judiciary interprets the laws. Parliament acts as a check on the executive, holding it to account for its conduct of governmental affairs. The judiciary has the power to hold both the executive and parliament accountable. But that is the theory. In practice, there is a lot of overlap between these arms, for example, between the executive and parliament. Bills are initiated by the executive which oversees policy and parliament debates and passes the laws. Where the ruling party has a super-majority in parliament, the executive has more power to do as it pleases and parliament becomes no more than a rubber-stamping institution.
This is the problem with Zimbabwe’s parliament. With a ZANU PF super-majority in Parliament, there is nothing to hold the ZANU PF-controlled executive in check. All ZANU PF MPs are simply whipped into line and everyone does what they are told to do. The MPs are not free to exercise their minds freely and to make decisions that are in the interests of their constituents. Instead, they are required to toe the party line. This is why all ZANU PF MPs in the Senate voted for Constitutional Amendment No. 1 even though it was unconstitutional and illegal.
The reasons for the amendment’s illegality have been covered in a previous BSR. In short, Constitutional Amendment No. 1 is illegal because it violates section 147 of the Constitution which states that all bills lapse when parliament dissolves. Constitutional Amendment Bill No. 1 was introduced in the 8th Parliament which was dissolved by operation of law on the eve of the 2018 elections. At that point, Constitutional Amendment Bill No. 1 lapsed. This means when the Senate of the 9th Parliament sat to vote on the constitutional bill early this month, there was, in fact, no valid constitutional bill before it. Senate voted on a non-existent constitutional bill. It is a legal nullity.
Yet, parliament, with several lawyers in its ranks deliberately ignored this illegality. A judge of the Constitutional Court had in general comments in a judgment issued in February warned parliament against passing a law that contravened the constitution. Justice Patel said a law that contravenes the constitution would be a legal nullity. The Senate went ahead and ignored this advice.
When one MP, Innocent Gonese of the MDC Alliance objected with the Minister of Justice, Legal and Parliamentary Affairs, concerning the illegality of Constitutional Amendment No. 1, the Minister admitted that there was no constitutional bill that was before Parliament. Yet incredibly he went on to justify it.
The Minister blamed the Constitutional Court for making the order and said Parliament had no choice but to comply even if it was wrong. “So, we do not have a Bill that is before Parliament, if the court erred – so be it. There is nothing that we can do because it is the superior court and the last court of appeal in terms of constitutional issues …” With all due respect, the Minister misdirected himself. As Justice Patel advised if parliament commits an unconstitutional act just because a court says so, the outcome will still be a legal nullity. If, as Minister Ziyambi said there was no constitutional bill before Parliament, what is it that the Senate passed on 6 April 2021?
But the Minister of Justice was not alone in this misdirection. Another ZANU PF MP, who is a senior lawyer, Fortune Chasi also dismissed Gonese’s objections arguing that parliament had a duty to follow the judgment even if it was leading parliament to contravene the constitution. “We have a duty as Parliament to ensure that we respect other arms of Government and I think if we start trying to overturn the constitutional ruling in this process, we will be undermining the division of labour”, Chasi said in his contribution to the debate. Independent MP, Temba Mliswa chimed in, saying parliament was not a court of law and it had a duty to “respect the other arm of the state”.
In making this argument, both Chasi and Mliswa overlooked the cardinal principle that the constitution is the supreme law and parliament must uphold and respect it. This is what Gonese was asking parliament to do and any self-respecting parliament should be defending its autonomy rather than conceding ground to another arm of the state. Parliament is not subordinate to the judiciary and it should apply its mind to what it does. Parliament cannot commit illegality just because the judiciary says so just as an individual cannot jump into the raging fire just because the court says so.
Gonese was simply asking Parliament to review its course of action to comply with section 147 of the constitution. Justice Patel had warned that Parliament had no right to carry out an unconstitutional act just because it was following a court order because it would lead to a legal nullity. The net effect of all this is that the defences put up by Minister Ziyambi and former Minister Chasi and Mliswa were a combined exercise in futility because they did not cure the illegality of Constitutional Amendment No. 1. It is still illegal for contravening the constitution. But what was disappointing in all this is that MPs were unwilling to defend their institution. Instead, they were happy for it to commit illegality. It’s as if parliament has no autonomy. It is not surprising that ministers treat parliament and MPs with contempt. They don’t respect themselves or their institution.
From making to unmaking the constitution
Parliament’s weakness has worsened with the apparent co-optation of the MDC-T led by Douglas Mwonzora. The controlled opposition cannot even challenge the illegalities around the constitutional amendments. The lowest point of parliament’s performance in this constitutional drama is personified by Mwonzora who has become a shadow of the stalwart who fought hard for the new constitution. In what is certain to be one of the greatest somersaults in Zimbabwean political and constitutional history, an ardent builder of the constitution has become an assistant of the demolition team.
Perhaps the most absurd moment was Mwonzora voting for a non-existent Constitutional Amendment No. 1 on 6 April 2021, blatant illegality. He must have known that it was illegal, but he voted for it. How does the leader of a party that claims to be in opposition vote for illegality? He had the opportunity to abstain even if he did not want to be seen to be opposing it. There was no reason to vote for an unconstitutional amendment except to ingratiate himself with the regime under the false guise of so-called “politics of rational disputation” which is a euphemism for politics of appeasement and capitulation.
But why would Mwonzora be embarrassing himself by making such incredible somersaults over positions that he has previously expressed against the constitutional amendments? A charitable view would be that he has changed his mind and people do change their minds. But it is implausible that he would change his mind from supporting legality to back clear illegality. There must be an incentive to support illegality. Perhaps the regime has kompromat on him, which means he finds himself doing the most absurd things that could not have been associated with him before. Even if the regime has no kompromat on him, maybe he realizes that he has no future in the opposition beyond the current free-ride on the MDC Alliance’s electoral harvest in 2018 and is happy to hitch a ride on the gravy train. In this regard, voting for these illegal amendments and thereby defiling his legacy as a constitution-maker is part of a quid pro quo with the regime which has promised some concessions to his party. But more likely, these debts are in the past, what with all the backing that the regime has given to his outfit over the past year. It is impossible to imagine how a man of his intellect would willingly and freely vote for such illegalities as are associated with these amendments.
So, what can be done when Parliament is so weak?
The weaknesses of parliament can give the impression that it’s a dead-end; that the constitution is entirely at the mercy of a ruling party with a super-majority. But in the final analysis that should not necessarily be the case. The fact that parliament is weak does not mean that there are no other options.
The first option is the legal strategy, which is to challenge unconstitutional amendments in a court of law. That is what Innocent Gonese and Jessie Majome did in 2017 when they challenged the legality of Constitutional Amendment No. 1 leading to the judgment issued on 31 March 2020 which held that it was unconstitutional. This strategy can still be used to challenge the legality of Constitutional Amendment No. 1 following the latest Senate vote and to challenge Constitutional Amendment No. 2 which is currently in progress. But as is evident, the legal route takes time and suffers the risk of uncertainty. The court can make a finding of illegality but still make an incompetent order as it did last year when it directed parliament to contravene the constitution b having a vote on a non-existent constitutional bill. Also, because some members of the judiciary have an interest in the passage of these constitutional bills, the odds of a legal challenge will be exceedingly high.
The second option is the political strategy, which is to mount a political challenge to the unconstitutional amendments. This is about applying pressure by carrying out a popular resistance to the constitutional amendments. This is based on the founding principle of the constitution that authority to govern is derived from the people of Zimbabwe. The declaration of rights has provisions that guarantee rights to demonstrate and exercise political rights. For example, section 59 protects the rights to demonstrate and present petitions as long as these rights are exercised peacefully. Section 58 protects the freedom to assemble and associate with others while section 61 protects the freedom of expression. Section 67(2) allows citizens to campaign freely and peacefully for a cause. Citizens can particulate, individually or collectively to influence, challenge or support the policies of the Government or any political or whatever cause.
While it is true that the COVID19 pandemic has led to a severe limitation of rights and freedoms, Zimbabwe is by no means the only country that has suffered these challenges. In other countries, citizens have continued to express themselves collectively. We can moan all day and night about the erosion of the constitution but without collective action, the government will continue to do what it wants. The people must remind the government that even with the super-majority, they are still the repositories of authority and they can withdraw it if they wish.
Ultimately, it is important to remember that the constitution cannot defend itself. It is just a piece of paper containing the collective imagination of a political community written on it. It depends on that political community’s belief and defence for its survival. If the people cannot defend it, the constitution will die. The government has been able to use its super-majority and to ignore the representations made by the people during consultations simply because it can and there is no groundswell of public opinion to stop it. Now that they have tested the waters and they have seen that there is no one mounting a serious challenge, they will be back again before 2023, with yet more outrageous amendments.