BSR: Why Zimbabwe is Hurtling towards a Constitutional Crisis

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Zimbabwe is hurtling into a constitutional crisis with the two recent amendments to the national constitution. Amendment No. 2 has been hurried through at great speed: it was passed by the Senate on Tuesday 4 May and just 3 days later, President Emmerson Mnangagwa assented to it a circumstance that marked the commencement of the amendment’s life as a law.

The unseemly rush, it appears, is linked to the imminent retirement of the current Chief Justice, Luke Malaba, whose biological clock strikes 70 years old this month. 70 is the mandatory age of retirement for judges in Zimbabwe. The amendment extends the retirement age of judges to 75 years, which the government hopes will provide the kiss of life to a long judicial career that had become comatose by operation of law.

However, not even this legal kiss of life is enough to save the Chief Justice. Using this chance to extend his term of service beyond 70 years would be an unlawful and gross abuse of the constitution. The reason is deceptively simple: existing or former officeholders cannot benefit from extensions to term limit provisions. This subject is discussed in more detail in this article, in which I argue that the rushed and illegal amendments are plunging the country into a complex web of constitutional crises.

What is a Constitutional Crisis?

While the definition of a constitutional crisis is at best fluid and ill-defined, it generally refers to a situation where the existing constitutional mechanism is unable to resolve a fundamental political problem or where the constitutional mechanism has become so broken that it leads to a stand-off or a never-ending chain of illegalities. It undermines the legitimacy of the system of government, making it extremely difficult to govern with consent so that the government becomes ever more reliant on force and extra-legal mechanisms.

The constitution is the supreme law of a country and it is supposed to have mechanisms to resolve political disputes and other problems. If it becomes fundamentally broken leaving it incapable of resolving a standoff or other major political problem, then commentators start describing it as a crisis of the constitution. There are different sets of circumstances that result in a constitutional crisis and some crises might be bigger than others. Some constitutional crises might be resolved within a short space of time, usually by one side of an impasse standing down. But some crises might linger for years, affecting the legitimacy of the government.

Oft-times norms that have been developed over time help to avert or to resolve a constitutional crisis. Norms can loosely be defined as unwritten rules that are developed by and mediate relationships between political actors within a country. One of the norms that I have often referred to drawing from the work of Levitsky and Ziblatt is “forbearance”, which describes an unwritten understanding where someone who has power deliberately withholds it and avoids using it in favour of another more cordial approach.

Older democracies that have long-standing political practices and traditions have the advantage of having developed these unwritten understandings that operate silently to avert crises. In countries like Zimbabwe, a show of power by the ruling elites is considered more appropriate. There is no room for forbearance and ruling elites like to demonstrate the full might of the state whenever an opportunity presents itself. Due to this rigid and inflexible approach, there are greater risks of constitutional crises and Zimbabwe has had its fair share.

Rupture of Constitutional Order

A typical constitutional crisis is where there is a fundamental rupture of the constitutional order, usually because of a coup. Before November 2017, the most infamous rupture of the constitutional order occurred on 11 November 1965, when the regime of Ian Douglas Smith unilaterally declared independence from Great Britain, the colonial power. UDI was a fundamental disruption of the existing constitutional order which resulted in a potential stand-off between the executive and the judiciary and the executive and the Governor who represented the Queen in Rhodesia.

Eventually, the judiciary gave in, recognizing the illegal Smith regime as the de facto government of the day. Two judges, Fieldsend and Dendy Young resigned in protest at the constitutional illegalities. The Governor also seemed to give in when the stand-off intensified. However, the crisis of illegitimacy never went away. It led to the intensification of the war of liberation in the 1970s. An attempt to patch up a solution via the Internal Settlement with Bishop Abel Muzorewa in 1978 had a miserable lifespan. It was not until the Lancaster House Constitutional Agreement in 1979 and the elections in 1980 that the path to constitutional legality and legitimacy was finally restored.

A deadlock between Arms of the State

A constitutional crisis might arise where there is a deadlock between the key arms of the state. This may happen where a court issues an order, which the executive refuses to obey. Courts make decisions but they have no power to enforce those decisions. Enforcers fall under the executive’s structures and a refusal to enforce court decisions is a manifestation of a constitutional crisis. It would mean the system is no longer functioning according to constitutional rules.

There was such a constitutional crisis in 2000 when the courts issued orders for people who had occupied the then white-owned commercial farms to vacate but the government withheld enforcement of those orders. The stand-off led to the escalation of tensions between the executive and the judiciary, a deadlock that could only be resolved by one of them backing down. After an unprecedented invasion of the Supreme Court building by rogue war veterans, Patrick Chinamasa, who was the Minister of Justice, Legal and Parliamentary Affairs told the Chief Justice that his safety could no longer be guaranteed.

Thereafter, the judiciary backed down. The then Chief Justice Anthony Gubbay was forced to take early retirement before a mass exodus of judges followed soon afterward. The constitutional crisis ended with the judiciary’s fundamental complete reconstituting, which resulted in a more executive-friendly bench. But that apparent “capture” of the judiciary might also be regarded as a manifestation of a constitutional crisis.

The coup in November 2017 is another example of a constitutional crisis arising from a major breakdown of the constitutional order. The military command structure was subverted when the military commanders deployed soldiers in the streets of Harare without the authority of and against the orders of their Commander-in-Chief contrary to requirements of the Constitution. There were attempts to cover up these constitutional violations by roping the judiciary to issue orders that the deployment was lawful. For nearly a week there was an impasse between the executive and the military. The deadlock was only loosened when then-President Mugabe resigned. He later confirmed what was apparent at the time, that he had resigned under duress. Parliament had been roped in to impeach him, which left him without a choice. This veneer of legality provided by the courts and the resignation did nothing to cure the legitimacy deficit caused by the constitutional crisis.

Constitutional Infidelity

A third situation in which a constitutional crisis might arise is where individuals and institutions entrusted with upholding and defending the constitution cause its violation or fail to protect it. No matter how well-crafted it is, a constitution cannot enforce itself. Ultimately, it depends on individuals and institutions who have the power to carry out and implement its requirements. The constitution is at their mercy. If they decide to ignore it or if they actively breach it, there is not much that the constitution can do to protect itself. This would be a major constitutional crisis in which a cocktail of illegalities predominates.

All arms of the state, that is, the Executive, Legislature, and Judiciary must uphold and defend the constitution. They pledge fidelity to the constitution. By ignoring and violating the constitution, they would be committing constitutional infidelity. Constitutional infidelity is the major problem with both constitutional amendments that have recently been passed by the legislature, creating conditions of a constitutional crisis. In the flowing part, I explain the phenomenon of constitutional infidelity in respect of the two amendments.

Constitutional Crisis regarding Amendment No. 1

By the Minister of Justice, Legal and Parliamentary Affairs’ admission, there was no constitutional bill before the Senate when it voted on 6 April 2021 purportedly to pass Amendment No. 1. That constitutional bill had lapsed on the eve of the 2018 elections when the legislature under which it was introduced in 2017 was dissolved by operation of law as stated in section 147 of the constitution. The implication of this is that Amendment No. 1 was passed unconstitutionally and is therefore invalid. It is interesting to observe that while President Mnangagwa has rushed to sign Amendment No. 2, there is no sign that he has signed Amendment No. 1. Presumably, the government thinks the signature put by President Mugabe is enough. If that is their thinking, they are grossly mistaken.

Court gave less than asked by the winners

The roots of this constitutional crisis around Amendment No. 1 started at the judiciary when the Constitutional Court issued an incompetent order in March 2020. The original Amendment No. 1 had been successfully challenged by Innocent Gonese and Jessie Majome who argued that the Act was invalid because constitutional amendment procedures had been violated. Having upheld their argument, the Court should have issued a declaration of invalidity of the Act that was signed by President Mugabe This would have meant it was null and void. However, for reasons never cogently explained by the Court, it changed the goalposts and declared that the Bill (not the Act) was unconstitutional. This is incredulous because it was the Act, not the Bill that was being challenged by Gonese and Majome. Why then did the Court change the goalposts, giving the applicants less than what they had asked for?

It cannot have been a judicial error. One of the 9 judges would have noticed it and issued a dissenting opinion. They all concurred in issuing a patently incompetent order. It can only be surmised that the Court deliberately did so to create the façade that the violations that had been identified and upheld could be corrected by the Senate. A decree of invalidity of the Act would have removed this option. But this short-changed Gonese and Majome, because they were challenging the validity of the Act, not the Bill. It is like now. A challenge against Amendment No. 2 is no longer a challenge against the Bill but the Act. If that challenge is upheld, it would invalidate the Act requiring the government to start the process afresh.

The constitutional bill had lapsed – there was no bill

The other problem was that by the time the Court issued the order giving an option to Parliament to correct the errors in voting, the constitutional bill upon which they were supposed to vote had already lapsed under section 147 of the constitution. There was no constitutional bill to vote on. The Court was, therefore, directing the legislature to commit a constitutional violation. This is more terrible because the Constitutional Court is the ultimate guardian of the constitution. It must uphold and protect the constitution. Yet in this case, it gave an order actively encouraging a violation of the constitution. This is a major crisis because with the Constitutional Court behaving like that, a shield for the constitution is turned into a weapon against it.

For its part, the legislature should have considered the matter independently in which case it would have realized that it could not carry out the Court order because to do so would violate section 147 of the Constitution. Since the constitution is the supreme law of the land, its violation in the name of carrying out a court order would result in a constitutional crisis. Parliament could have approached the Court to correct its unlawful order or to give further lawful directions, pointing to section 147 as authority for its inability to carry out the order because there was no constitutional bill. The only other way to correct this constitutional crisis was for the executive to restart the entire process under section 328 of the constitution. Instead, the legislature voted on the non-existent and therefore invalid bill, extending the chain of illegalities. The implication of all this is that everything done under this unlawful bill will be illegal.

The judiciary is once again being asked to consider the constitutionality of Amendment No. 1. This is an interesting challenge because it requires the Court to effectively reconsider its order in the Gonese and Majome case, which was illegal and incompetent. This means the judiciary is the final line of defence for the Constitution. However, the constitutional crisis can get worse if the judiciary refuses or fails to defend the Constitution, a point to which we will return when we consider Constitutional Amendment Bill No. 2.

Extension of judicial term limits

I have already argued that none of the current judges, including the Chief Justice can benefit from the extension of the retirement age from 70 to 75 years because to do so would be a violation of section 328(7) of the constitution. As extensively discussed in a previous BSR, section 328(7) prohibits anyone who is in office from benefitting from an extension to the term limits of that office. So while term limits provisions can be changed, the changes cannot benefit current officeholders. If there is a change to allow current officeholders to benefit, section 328(9) of the constitution requires that there should be a referendum. Amendment No. 2 has already been signed into law without submitting it to a referendum. This means section 328(7) remains intact and current judges cannot benefit from the extension of their terms.

I already explained in last week’s BSR last week’s BSR why the extension of the age limit of a judge qualifies as a term limit under section 328. Therefore, to the extent that Amendment No. 2 seeks to benefit current members of the judiciary by extending their term limits from serving up to 70 years to 75 years without going to a referendum, it is patently unconstitutional because it violates sections 328(7) and (9) of the constitution. A constitutional amendment that violates the constitution is a manifestation of a constitutional crisis because both the executive and the legislature have participated in a process that blatantly breaches their constitutional duties.

Will turkeys vote for Christmas?

While Amendment No. 2 is being challenged in the courts, there is a conundrum: the judges who are supposed to decide over the legality of Amendment No. 2 are beneficiaries of the amendment. It is their term limits that are being extended. In the case of Chief Justice Malaba, his term is almost at an end because he will shortly be turning 70. But does he want to go? This seems highly unlikely and the rushed and illegal amendments look like they are designed to facilitate his stay.

This is a classic situation that section 328(7) was made for, namely that if there is an extension to a term limit, those with a direct interest should not benefit from it. It was designed to prevent a conflict of interest and to reduce incentives for changing term limits. It is therefore ironic and against the spirit of section 328(7) that those that are direct beneficiaries of the extension of judges’ term limits are the ones who are entrusted with the power to decide whether this is a lawful amendment. It is like asking turkeys to vote for Christmas.

The only impartial forum that should decide on the extension of judges’ term limits that would benefit current judges would have been the body of citizens through a referendum. That is why section 328(9) is designed so that any changes to the provision prohibiting incumbents from benefitting require a referendum. That was the wisdom of the design as explained in the last BSR. What is happening now is the exact opposite. The beneficiaries of changes to the term limit provision must decide whether it is lawful. The fate of the constitution is in the hands of an elite group of men and women who have a direct and substantial interest in the change to term limit provision. It is hard to imagine a situation in which the constitution has ever been more vulnerable. It’s a major crisis for the constitution: hopes to serve it are entirely dependent upon beneficiaries of its defilement. Will they rise above self-interest? But impossible though it seems, it is the job of litigators to challenge the illegality of the amendment; to take responsibility to the doorsteps of the judiciary.

These constitutional illegalities imply that the entire constitutional order is facing fundamental disruption which manifests as several crises. The illegalities that emanate from both amendments have a contagious effect on the acts done by the state. The executive and parliament will have to initiate and pass laws under the illegal amendments while the judiciary will be improperly constituted. These illegalities lead to a deficit of legitimacy. Ultimately, the repositories of authority are the citizens of Zimbabwe. One of the most fundamental principles of the constitution is that authority to govern derives from the people. It is up to the citizens to demonstrate that they disapprove of how this authority to govern is being abused even at this late hour. Even the judiciary has to be reminded that this goes beyond parochial self-interest; that this is about the basic foundations of the constitutional order.

More creativity needed to promote women and youths in politics

It is important to address an issue that has been used as justification for supporting Amendment No. 2 by members of the controlled opposition party, the MDC-T. It is that the amendment is progressive in that it extends the women’s parliamentary quota of 60 proportional representation seats in the National Assembly. It also reserves 10 seats in the National Assembly representing the Youth Quota.

Even if it is assumed for a moment that they are positive changes, these provisions represent a minute fraction of sweeteners in a package that contains many bitter lemons some of which have already been described above. A more comprehensive analysis of these amendments is found in a series of BSRs published last year.

The women’s quota was originally set to operate for the first 10 years of the 2013 Constitution, after which it was envisaged that women would have gained political capital to fight more competitively in a male-dominated political terrain. This was too ambitious and as events in the past two terms have shown, it has done little to empower women. If anything, the deep flaw of the women’s quota is that it leaves female representatives vulnerable to the whims of their political parties. The Mwonzora-led MDC-T targeted women’s quota MPs who were either expelled and replaced or were threatened with expulsion which forced them to seek refuge by jumping ship from the MDC Alliance.

The women’s quota MPs have also been derided and called names as “Bacossi MPs” suggesting that they are of cheaper and lower stock compared to directly-elected constituency-based MPs. Far from promoting female representation and political capital, the women’s quota has maintained a façade of inclusion. For that reason, extending the women’s quota for another ten years is both deceptive and lazy. It is deceptive because it gives a false impression that the government is concerned with improving female representation in Parliament when it perpetuates inequality. The national objective set in the Constitution and the principles of equality requires that there must be equal representation of women and men in Parliament. To that end, an amendment should have been to give effect to 50/50 representation, not the tokenism of extending the small and politically ineffective women’s quota.

The same goes for the youth quota which at 10 seats is just one youth seat per province across the country. This is a mockery given that Zimbabwe has a predominantly young population. It smacks of tokenism to silence the young people by giving the impression that they are being included when in fact the design justifies and accentuates exclusion in the long run. If the intention is to promote young people in politics, the amendment would have been expansive and creative.

Creative Ways of Inclusion and Equality

There are more creative ways to promote gender equality and youth representation in Parliament than the quota of PR seats. This can be done by incentivizing political parties to include women and youths as candidates in national and local elections. The easiest and most attractive form of incentives is financial. The Political Parties (Financing) Act makes provision for state funding of political parties on certain criteria. At present, the sole criterion is the political party’s level of parliamentary representation. This could be expanded to include levels of female representation in elective positions. This would mean that more money is given to political parties that have more female MPs and councilors. It would operate as a positive incentive to promote female representation in elective positions.

Another option would be to simply make it mandatory for political parties to have equal representation of women and men in Parliament and local authorities. It is justifiable in a democratic society that is trying to address gender imbalances resulting from centuries of marginalization and lack of representation. It is a form of affirmative action that is properly authorized by anti-discrimination provisions of the Constitution. It is also preferable to have constituency-based seats than PR seats since the latter are regarded as inferior. With a specifically defined political constituency, female MPs will be in a better position to develop and enhance their political capital than with non-constituency-based PR seats under the quota system.

A similar model can be used for the inclusion of young people so that a political party gets more funding from the state depending on the number of MPs who are under 35. This will provide incentives for political parties to give more opportunities to young people. If parties get more money for young MPs, they are more likely to prioritize youthful candidates in their electoral campaigns. Likewise, there could be a mandatory rule requiring parties to reserve a certain number of seats for young people.

Another creative way would be to ring-fence a certain number of seats per provision to be reserved for female candidates and youth candidates. This would force all parties contesting in elections to field either female or youth candidates in those seats, guaranteeing representation of these groups well beyond the quotas that are proposed in Amendment No. 2. These are just quick thoughts and there is an unlimited number of creative ways that can be deployed to promote gender equality and youth representation. What the government has presented in Amendment No. 2 is a lazy approach that does nothing to promote the purported causes. If the government is serious about promoting women and youths in politics, then it ought to go beyond this piecemeal approach.