BSR: Why Constitutional Literacy Matters

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If you take a group of 4 Zimbabweans, there is a high probability that at least 3 of them will be able to cite a verse or chapter of the Bible. The same number might also be able to quote a verse verbatim. Most homes will probably have at least one Bible, often two or more. But if you ask them to cite just one provision of the Constitution, you might struggle to get a clear answer. Try asking them to quote a provision of the Constitution and you are likely to get blank faces. And chances of finding a copy of the Constitution in a Zimbabwean home are very small.

This is not a criticism of Zimbabweans. The pattern is likely to be the same in many parts of the continent and probably in many countries around the world. It simply reveals the chasm that exists between the citizens and the Constitution compared to other important texts. Religion is part of daily life from the very beginning so that it becomes almost natural. Things like the Constitution, on the other hand, are regarded as esoteric; they are things for lawyers and politicians.

This scenario reminds me of one of my favourite parts of the scriptures when Jesus is tested by the Pharisees. They ask him about paying taxes, hoping perhaps that he would say something that would offend the laws. To whom should we pay taxes, they ask. He asks them to show him what they use to pay taxes. After examining the coin, he asks whose head is inscribed on it, to which they say it is Caesar’s. His answer is classic: Give to Caesar what belongs to Caesar and God what is God’s.

I always marvel at the wisdom in that answer. He answered the question without breaching any of the laws, much to the chagrin of his inquisitors. For me, it has profound meaning in the constitutional context: whatever people believe in, they must also remember that there are earthly laws that cannot be ignored. If people ignore these earthly laws and leave them to politicians, they will submit themselves to oppression. This is the reason why it matters that people must invest deeply in the Constitution. It is the law that governs them in their daily lives.  

Now, back to the problem of constitutional illiteracy. Even if some people know that there is a Constitution, few know what it says and why it matters in their lives. This is probably because the Constitution is written in a legal language that is difficult to comprehend. Yet the Constitution is the supreme law of the country. It is the law that sits at the top of the hierarchy of laws in the country. What this means is that every law must comply with the Constitution. Every practice, custom, or conduct must conform with the Constitution. If a law, custom, practice, or conduct is inconsistent with the Constitution, it is invalid to the extent of that inconsistency. This is what is meant by the supremacy of the Constitution. Our legal system is complex: there is legislation which is passed by Parliament; statutory instruments that are issued by the Executive, the Common Law which is derived from the Roman-Dutch law system; and customary law. All of these laws must, however, comply with the Constitution.  

Considering the supreme role of the Constitution, you would expect that citizens would know more about it. You would think that there would be more efforts to ensure that citizens are more fully aware of the Constitution. In our case, the framers of the Constitution appreciated the need to ensure that there is more constitutional awareness among citizens. They included a provision that imposes a duty on the State to promote constitutional awareness. Section 7 of the Constitution says the State must promote public awareness of the Constitution. It proposes three ways to do so, first, by translating it into all official languages and disseminating it widely. Second, the state must require it to be taught in schools and to be included in the training programs of members of the security services, the Civil Service, and members and employees of public institutions. Finally, the State must encourage all persons and organizations, including civic organizations, to disseminate awareness and knowledge of this Constitution throughout society.

Section 7 is therefore the bedrock of the duty to promote constitutional awareness. Unfortunately, 8 years after the 2013 Constitution became law, this constitutional duty is yet to be fulfilled. The Constitution is still not taught in schools systematically and purposefully. While it may be part of the training programs for the public sector, it is usually incidental rather than systematic. There is a need for more work beyond translating it into the main languages. In the civil society space, while some organizations have stepped up to defend the Constitution as well as to disseminate information regarding constitutional matters, the conversion of the National Constitutional Assembly into a political party left a gap in constitutional advocacy. 

Some civic organizations like Kubatana have done a good job in this respect, promoting constitutional awareness through campaigns like #KnowYourConstitution. Veritas does a great job monitoring constitutional amendments and legislative developments. The Zimbabwe Lawyers for Human Rights is ever busy defending individuals who are subjected to all sorts of persecutions under the guise of criminal prosecutions. The Zimbabwe Human Rights NGO Forum working with the ZLHR has lately been active in defending the Constitution in the wake of illegal constitutional amendments. All this is commendable work in the cause of constitutional defence. 

The environment is different from when the NCA was formed back in the late 1990s. Then, the big idea was to place constitutional reform firmly on the national agenda. This, the NCA achieved with great distinction. It was a big idea for the time and progressive forces converged to make it happen. It was in response to the campaign for constitutional reform by the NCA that the Government moved to establish the Constitutional Commission in 1999. It led to a constitutional referendum in February 2000, at which the Constitutional Draft was rejected by the citizens, the first-ever defeat in an electoral contest that the ZANU PF government suffered and accepted. When the constitutional reform process started in 2009 under the auspices of the Global Political Agreement and the Inclusive Government, it was a revival of a process that had begun a decade earlier, not a new thing. This is why I credit the original NCA for the 2013 Constitution because it would never have been achieved had the NCA not broken the ground and placed constitutional reform at the top of the political agenda back in the 1990s.

The problem is that this important platform was lost when the NCA changed into a political party. But the adoption of the 2013 Constitution needed a vigilant and strong constitutional watchdog in the civic spaces. The NCA could have become that civic society-based constitutional watchdog. Without it, other organizations had to pick up the roles. However, they have their specializations, which they are very good at. But the country had lost an important civic sentinel that was dedicated to constitutional affairs and advocacy. It would have monitored the implementation of the Constitution. It would have developed model laws to promote the implementation of the Constitution. It would also have used its vast network to establish constitutional champions across the country, training them so that they would train others in their communities. It would have done what section 7 of the Constitution requires civic organizations to do in helping to promote the supreme law of the country among the citizens.

Events of the last 4 years demonstrate the need for greater constitutional advocacy, education, and defence among citizens. If more people appreciated the importance of constitutionalism, they might have responded with more caution to the coup that happened in November 2017. They would have appreciated the hazard of upsetting the constitutional order and realized that far from being a solution, it would usher in more challenges. People might not have been able to stop it, but they would have been prepared for what was to come. Likewise, if people had more constitutional awareness, they would have been able to appreciate the impact of the two major changes to the Constitution which have been introduced through Amendment No. 1 and No. 2. People can only defend what they know and believe in.

One way to understand the Constitution is to see it as a product of the collective imagination of a nation. This is a normative understanding of the Constitution, where it sits atop as a reflection of people’s values, beliefs, and aspirations. But like all products of the imagination, the Constitution exists in the minds of the people and its survival depends on the extent to which it is believed by a significant number of the people in a community. If fewer people believe it, it faces the risk of extinction. It has a higher chance of success if more people believe in it.

As I have already stated, for people to believe in it, they must be convinced by the story. But first, they must know it. This is precisely why the constitutional story must be told repeatedly and from an early age and in a language that people understand. Just as young people begin to recite the scriptures at Sunday School, they must also learn to recite provisions of the Constitution from their Constitutional Class. This is possible if constitutional materials are developed to cater to all levels of society. This requires a level of creativity and innovation to ensure that there is constitutional promotion among citizens.

But it is not just ordinary citizens who need constitutional awareness. Those who are involved in constitutional and human rights advocacy also require constitutional awareness. Those who have constitutional duties to discharge are also often unfamiliar with the constitutional requirements, values, and principles. Over the last few weeks, I have attended platforms where I have engaged with members of the Christian community. The first event was hosted by the Christian Alliance and the second by the Zimbabwe Council of Churches. The level of interest in constitutional awareness among leaders in these networks was quite telling. The state has not fully discharged its constitutional mandate to promote constitutional awareness. Civil society must step up and assist in this process.

Last week, the Constitutional Law Centre was launched. The launch had long been planned for the 22nd May 2021, being the 8th anniversary of the Constitution. The CLC also launched a report which takes a bird’s eye view of the constitutional landmarks over the past 8 years since the 2-13 Constitution was adopted. The purpose of the CLC is to do all the above-mentioned things and more to advance the idea of constitutionalism. Whereas before 2013, the agenda was the constitutional reform, now the main agenda is constitution-led reform. In other words, it is a reform that is led by and designed in terms of the new constitutional dispensation introduced 8 years ago. The 2013 Constitution is probably the single most enduring legacy of the Inclusive Government. However, this legacy can very easily be undone through retrogressive amendments and a failure to implement the constitutional requirements.

This is the reason why it is important to have an institution such as the CLC, which is dedicated to promoting, explaining, and defending the Constitution. The CLC is a platform of convergence, where all civic groups that are interested or working in constitutional promotion, education, and defence are welcome. The CLC brings in creative and innovative ways of promoting the Constitution and making sure the supreme law makes sense to the citizens. There are several strategic streams to the CLC, including strategic education which covers the schools and public service training curricula; strategic public interest litigation which challenges laws, practices, and customs that are unconstitutional; strategic networking and engagement with duty bearers within the structures of the State to implement the Constitution. For example, the recent constitutional amendments suggest that even MPs are oblivious of their constitutional role and obligations. A Senate that knows its role and duties under the Constitution would never have passed Constitutional Amendment No. 1 which violates the Constitution. It would have been more resolute in defending its constitutional role by refusing to be pushed into passing a non-existent Constitutional Bill.    

Basic Features

Apart from constitutional supremacy, one of the most important features of the Constitution is the founding values and principles which are stated in section 3. These values and principles are substantive provisions of the Constitution. They provide the bedrock of the Constitution. Everything else that is in the Constitution is designed to fulfill these founding values and principles. We might refer to them as the Basic Features of the Constitution.

This characterization has at least two important implications. The first is that the founding values and principles must be given full expression whenever other provisions of the Constitution are being interpreted. The second is that constitutional amendments must always uphold and be consistent with the founding values and principles. If they contravene or undermine the values and principles, such amendments can be regarded as unconstitutional as they will be undermining the basic features of the Constitution. Although the Basic Features doctrine gained acceptance and popularity in Indian jurisprudence, it is worth considering as we develop our jurisprudence. It would prevent amendments that undermine the basic structure of the Constitution which is defined by the founding values and principles. For this reason, every constitutional amendment must be assessed on whether it fulfills or undermines the founding values of the Constitution.    

Social Contract

One of the most fundamental values and principles of the Constitution as provided for in section 2(f), states that there must be “respect for the people of Zimbabwe, from whom the authority to govern is derived”. This is a very important principle that establishes the basis of the Social Contract between the citizens and those who govern. It means that the citizens are the repositories of authority to govern. Those who govern do so only as agents of the people. The people are the principals. It is a well-established principle that in the relationship between a principal and an agent, the agent must only act within the terms of authority and in the interests of the principal. However, what sometimes happens is that agents might prioritize their interests ahead of the interests of the principal. When that happens, the agents flourish while the principals suffer. But why do principals allow this to happen? Why is it that principals, who are supposed to have power over agents, let this happen?

The answers to these questions lie in agency theory. One possible explanation is the Free-Rider Problem. The Free Rider Effect happens when a few people in a group do all the work but everyone in the group benefits in the end. Those who do not put in the work are called free-riders. They benefit from the input of others. Over time, however, the ones who have been putting in the work end up disengaging when they realize that they are carrying the costs of the whole group and others are benefiting at their expense. Eventually, as more people disengage there will be very few or no one doing the work.

Now consider this in the political context. The people are the principals who are supposed to make sure the governors who are the agents are working in the best interests of everyone. But since there are so many principals, some of them do not play their monitoring role because they think others are doing it already. But eventually, the few principals who are playing their role end up disengaging because of the free-rider effect. The result is that the agents (read politicians) end up with a vast amount of space and time to do what they want.

The same logic can be applied to the Constitution and voting. Most people do not guard the Constitution because they think others are doing it. Likewise, some people do not bother to vote because, in their minds, others are already doing it. Both these groups are hoping to take a free ride on the efforts of others. This leaves the governors with a huge leeway to change the Constitution to suit their desires. It would be so much easier if everyone took the opposite viewpoint; if each person could proceed on the belief that no one else is doing it. 

As it is, the Constitution is at the mercy of a few politicians who are in power. They regard having a two-thirds majority as a passport to change the terms and conditions of the Social Contract between the state and the citizens and very often the changes are designed to promote their interests rather than the interests of the people. Therefore, if the people do nothing to stop it, the Social Contract is continually being amended to suit the interests of the agents. Instead of the people being the principals, they are bossed around by the politicians. This will continue if the people are not fully aware of their role as principals; a role that is constitutionally defined.

Anyone who buys a significant piece of property looks at the terms and conditions with which they must comply. The Constitution is a set of terms of conditions under which a country is governed. Yet most people have little to virtually no awareness of these terms and conditions. They just go along with what the politicians tell them and sometimes the politicians even change these terms and conditions. If people fully appreciated the moral hazard arising from giving politicians so much power, they would do more to resist such changes to the terms and conditions of governance. This is a yawning gap that the CLC hopes to fill. It seeks to empower citizens through greater constitutional literacy. As people know, they take more ownership of the Constitution and with more ownership of the Constitution, they have greater incentives to protect it from erosion and violation.