“This handout has typographical errors”

UNIVERSITY OF ZIMBABWE
FACULTYOF LAW
CONSTITUTIONAL LAW LECTURE NOTES - 2012

BY PROF L. MADHUKU

POST INDEPENDENCE PERIOD

Zimbabwe‟s constitution has been amended nineteen times in the past thirty-two years. Considering
that the American constitution has only been amended 26 times in over 200 years, the Zimbabwean
scenario is rather extra ordinary. It raises critical questions about constitutional development in
Zimbabwe. For instance, what political factors have dictated changes to the constitution? What role
does the constitution play in the consolidation of political power by the ruling elite? Did
constitutional amendments lead to a more open and responsive democracy or were they primarily
designed to entrench a dictatorship?

Answers to these and other pertinent questions can only be obtained after undertaking a brief journey
through the various amendments. What may be said at the outset is that the overall goal of the
constitution – amendment process in Zimbabwe appears to have been to create and entrench a
dominant position for the nationalist elite who took power at independence. The creation of a more
open and responsive democracy does not emerge from any of the key amendments made in the period
under survey.

The Amendment Process

Textbook writers refer to a distinction between rigid/inflexible and flexible constitutions. The
distinction arises from the easy with which a constitution may be amended. Eric Barendt explains the
distinction as follows:
“In a flexible constitution there is no difference between ordinary and constitutional laws. In
terms of legal principle and procedures, the latter may be amended or repealed as easily as the
former… Rigid constitutions, on the other hand, may only be amended by a particular
procedure set out in the constitution itself, such as a referendum or the vote of a special
majority, perhaps two-thirds, of the members of each house of the legislative.”1

This distinction is, however, misleading in that apart from there being an insignificant number of
countries that have “flexible” constitutions2 rigidity is a matter of degree and is largely dependent on

1
See Eric Barendt, An Introduction to Constitutional Law, 1998, Oxford University Press, p.8
2
There is a handful of countries who belong to the group of “flexible” constitutions such as the United Kingdom
and New Zealand.

1
political practice rather than the formal procedures specified by law. Thus, on the one hand, rigidity
in the United States has made it difficult to amend the constitution while in Germany, on the other
hand, it has not stopped nearly 40 amendments in about 50 years.

Zimbabwe falls into the group of “rigid” constitutions in that the constitution cannot be amended in
the same way as any other legislation. The whole constitution is “entrenched” in the sense that the
rigidity applies to all provisions of the constitution.3 There are four aspects, which make the process
of amendment of the Zimbabwean constitution an entrenched one. First, no provision of the
constitution may be amended by implication. Every amendment must be in express words.4 Other
statutes can be amended by implication. This is less rigid than the position in other countries, such as
South Africa, which insist on the bill amending the constitution not to contain any other provisions.5
This is designed to achieve maximum transparency in the amendment of the constitution in that on
provision, although express, which purports to amend the constitution must not pass unnoticed by
being hidden among unrelated issues. In theory, a bill amending the Zimbabwean constitution may
contain other provisions as long as the amending clauses are in express words.6

Secondly, a Constitutional Bill must be published in the Government Gazette at least 30 days before it
is introduced in Parliament.7

There is no such requirement for other bills. Although the objective of the 30days requirement is not
stated, it must be clear that it is to allow public debate on the proposed amendments. In South Africa,
comments arising from public debate must be tabled and debated in the National Assembly and the
latter cannot vote on the bill before the expiry of 30 days from its introduction.8 Thirdly, at least two-
thirds of the total membership of Parliament must vote in favour of a bill for it to pass. 9 Other bills
only require a mere majority of those “present and voting”10 and given that the quorum of Parliament
is twenty-five members11, thirteen MPs may validly pass a bill. With a Constitutional Bill, a
minimum of one hundred MPs is required.

3
See Rautenbach & Malherbe, Constitutional Law, 2nd edition, Butterworths1996, p.148 where the word used in
place of “rigid” is “entrenchment” and the following is said: “Constitutional entrenchment means that
limitations are placed on the repeal or amendment of certain or all provisions of a constitution.”
4
Section 52(1)
5
See Section 74(4) of the South African Constitution, 1996.
6
The Constitution, in Section 113 defines a “Constitutional Bill” as follows: “ a Bill which, if enacted, would
have the effect of amending adding to or repealing any of the provisions of this constitution.” Clearly, this
definition accommodates any Bill which contains other provisions in addition to those seeking to amend the
constitution.
7
Section 52(2)
8
See Section 74(5), (6) and (7) of the South African Constitution, 1996
9
Section 52(2a)
10
Section 56(1)
11
Section 54(2)

2
Fourthly, a Constitutional Bill, requires to be accompanied by a certificate from the Speaker of
Parliament confirming the two-thirds vote and the President cannot assent to the Bill unless it is so
accompanied.12

In other countries, there are even less flexible mechanisms. Some impose a complete prohibition on
the amendment of certain provisions of the Constitution. Such is the case with Section 79(3) of the
German Basic Law which prohibits the amendment of provisions relating to the democratic and
federal nature of the state. Section 131 of the Namibian Constitution prohibits any amendment of the
Bill of Rights “in so far as such repeal or amendment diminishes or detracts from the fundamental
rights and freedoms.” Another mechanism of entrenchment is to require that in addition to the
affirmative vote of the legislature, on amendment must be approved by another body. Such as the
electorate though a referendum . We now turn to the Zimbabwean Constitution.

Amendment I (1981): Black Advancement or Affirmative Action

This amendment was effected by Act No. 27 of 1981. It may appropriately be described as a “black
advancement or affirmative action” amendment. The original Lancaster House provisions required
appointees to the Senate Legal Committee and the Judicial Service Commission to be lawyers of not
less than seven years experience.13 The new government immediately realised that few blacks had the
requisite number of years of experience to qualify for appointment and yet it was imperative in the
new political dispensation for blacks to be appointed to key institutions. The remedy brought by
Amendment No. 1 was to amend the constitution and reduce the seven years to five. Further,
regarding minimum legal qualifications, the Constitution was made more flexible to allow
appointment, not only of persons with less than five years but also persons who may not be lawyers in
the strict sense. This was achieved through a formulation which allows the appointment of a person
who:

“possesses such legal qualifications and has had such legal experience
as the President considers suitable and adequate for his appointment.

It also required the chairman and at least one other member of the Public Service Commission to be
persons with at least five years experience at a high grade in the Public Service.14

12
Section 52(5) as read with Section 51(3)
13
See Section 36 and 90 of the Lancaster House Constitution. The text of the Lancaster House Constitution is
published as Act No. 44 of 1979
14
See Section 74 of the Lancaster House Constitution.

3
This first amendment reveals two features which were to characterise constitutional development in
Zimbabwe. First, the constitution was not allowed to stand in the way of deeply held political
positions whatever the justifications for the initial provisions. Thus, while the initial provisions were
purportedly designed to ensure that persons appointed to certain positions in state institutions had to
have sufficient experience, this goal was regarded as secondary to the political objective of achieving
“black advancement”. The protagonists of black advancement saw the initial provisions as a vehicle
to maintain white control of the newly independent state and as long as this was regarded as
unacceptable, the constitution had to be amended.

Secondly, a clause giving the government almost unlimited discretion in avoiding the constraints
imposed by the constitution was introduced. The clause rendered inconsequential the minimum
qualifications imposed by the other provisions of the constitution as these could be circumvented by
the President‟s power to appoint a person who “possesses such legal qualifications… as the President
considers suitable and adequate…” This clause marked the beginning of the trend where the
government, through the President, was empowered by the constitution itself to circumvent
constitutional safeguard in pursuit of ill-defined political goals.

Amendment 2 (1981): Establishment of Supreme Court and High Court

This amendment was effected by the Act No. 25 of 1981. Before this amendment, the highest court in
Zimbabwe was the High Court, which had two divisions: the Appellate Division of the High Court
and the General Division of the High Court.15 The amendment merely created two courts from one,
with the Appellate Division being transformed into a Supreme Court while the General Division
became the High Court. There was no change of substance and the motivation for the amendment
must have been to create a new look court consistent with the practice of other countries. The
amendment introduced the title of “Judge President” for the head of the High Court who was
previously described as “Senior Puisne Judge”.16 There was one substantive limitation to the
jurisdiction of the new High Court which may not have been intentional. Section 81(2) of the original
constitution provided as follows:

“The General Division shall have power, jurisdiction and authority to

review all proceedings of all inferior courts of justice and tribunals
established by law.”

15
See Section 79 of the Lancaster House Constitution.
16
Section 81(3) of Lancaster House Constitution.

4
This clause was dropped in the new provisions leaving the jurisdiction of the High Court largely
dependent on the provisions of an Act of Parliament. Under the original clause, the High Court‟s
review powers were constitutionally entrenched and could not be ousted in an Act of Parliament
creating a particular tribunal or inferior court. With the amendment, it became competent, for an Act
of Parliament to oust the High Court‟s review jurisdiction in given circumstances.17

Apart from the creation of the two courts, Amendment 2 also dealt with other issues. The first was
the reduction of the minimum age of senators from 40 to 30.18 The original position of a minimum age
of 40 was, without doubt, unreasonably high given that many young politicians who had participated
in the liberation struggle could not be accommodated in the House of Assembly where the minimum
age was 21. The second aspect followed the fusion of the legal profession by the Legal Practitioners
Act of 1981.19 This latter Act had abolished the distinction between “attorney” and “advocate”,
creating one category of “legal practitioner”. There were several sections of the constitution which
had to be amended to reflect this new development and this was done by Amendment 2. For instance,
in the original constitution, only advocates qualified for appointment as judges of the High Court20 but
this had to be changed, as the category of “advocate” had been abolished. Amendment 2 substituted
the word “legal practitioner” in place of “advocate”.

Amendment 3 (1983): Abolishing Dual Citizenship

This amendment was effected by Act No. 1 of 1983. Although it dealt with other issues, its most far
reaching provision was on dual citizenship. The Lancaster House Constitution took every care to
protect dual citizenship in an obvious deference to the interests of the white minority. Section 8 of the
Constitution provided as follows:
“(1) A person who, on the appointment day, is a citizen of Zimbabwe or entitled to be
registered as such and is also a citizen of some other country or entitled to be registered as
such shall not, on and after that day, solely on the ground that he is or becomes a citizen of
that other country, be –
deprived of his citizenship of Zimbabwe
(a) refused registration as a citizen of Zimbabwe or
(b) required to renounce his citizenship of that other country;
by or under any law

17
See for example the debate surrounding the alleged ouster of the review powers of the High Court in Labour
matters in L. Madhuku, “The jurisdiction of the High Court in labour matters” 1995 Zim Law Review
18
See Section 12 of the Amendment 2 which amended paragraph 1(i)(b) of Schedule 3.
19
Act No 15 of 1981
20
See Section 82(1)(b) of the Lancaster House Constitution

5
 Provided that a person referred to in this subsection may be required to take and subscribe the
oath of loyalty in the form set out in schedule 1.
(2)…
This section was clear and unambiguous: the main beneficiaries were members of the white
community, who could be citizens of both Zimbabwe and any other western country. This appears to
be one of the provisions which the nationalist leaders were uncomfortable with at Lancaster. By
1983, the internal security situation had already deteriorated. The new government blamed some
whites whom it believed to have been without sufficient attachment to the country and were engaging
in undermining the sovereignty of the newly independent state. A number of sensitive cases were
being heard in the courts.21

Amendment No.3 abolished dual citizenship in its entirety by repealing Section 822. It went further to
recast Section 9 by empowering Parliament to make laws in respect of citizenship and providing for a
variety of matters such as the acquisition, deprivation, cession and renunciation of citizenship. The
hostility to dual citizenship was further entrenched by the provision that empowered Parliament to
make a law that could deprive a person of their citizenship by birth on the basis that “he is or has
become a citizen of some other country”.23 Previously, a citizen by birth could not be deprived of
his/her citizenship whatever the circumstances.24

Amendment 3 also dealt with three other significant aspects. First, it widened the political class that
could be appointed to Commissions set by, or established in terms of, the Constitution such as the
Electoral Supervisory and Judicial Services Commissions. The original provisions sought to limit
political influence in these Commissions by making ineligible for appointment any person who was
“a member or has, within the period of three years of the date of the proposed appointment, been a
member or been nominated for election as a member of the Senate or the House of Assembly or any
local authority.”25 Under the amendment, only serving members of Parliament were disqualified and
all former members were made eligible. This allowed the government to appoint, as members of the
Commissions, persons who shared the same political perspectives as itself by having been recently in
Cabinet or Parliament, a scenario which the original provisions sought to avoid.

21
See for example: Holland v Commissioner of Zimbabwe Republic Police 1982 (2) ZLR 29; Minister of Home
Affairs and Another v York and Another 1982 (2) ZLR 48; Hickman and Another v Minister of Home Affairs
1983 (1) ZLR 180; Bickle & Others v Minister of Home Affairs 1983 (2) ZLR 400
22
See Section 2 of the Amendment
23
See Section 9 of the Constitution, which was inserted by Section 3 of Amendment 3
24
See Section 9 of the Lancaster House Constitution
25
See Section 61(2) of Lancaster House Constitution for Electoral Supervisory Commission), Section 90(2) (for
Judicial Service Commission and Section 109 (other Commissions).

6
Secondly, it gave the Prime Minister some greater degree of manoeuvre in the appointment of
Ministers. In the original provisions, a Minister could only be appointed from sitting members of
Parliament. In other words, a person had to be a member of Parliament at the time of appointment for
him/her to qualify to be a Minister.26 The amendment allowed the Prime Minister to appoint, as a
Minister, a person who was not a member of Parliament for a maximum period of three months
provided that the person could continue as a Minister if within that period he/she secured a seat in
Parliament. This brought the system in line with the constitutional position in the United Kingdom.
Although there is no law that a Minister must be a member of Parliament, it is an established
convention of the British Constitution that all ministers be members of one or other House of
Parliament. de Smith and Brazier state the position as follows:
“All ministers must be or become members of one or other House of Parliament; if a Minister
is not a member of either House at the time of his appointment, he must obtain a seat at the
earliest opportunity or resign.”27

This position enables the Prime Minister to appoint a person with certain skills or attitudes which may
not be available from existing members of Parliament and then assist such person to get a seat in
Parliament. In the U.K if there is no opportunity to obtain seat through a by-election in a safe
constituency, the Prime Minister may secure a seat in the Upper House by creating a life peerage for
the Minister in question.28

It is this flexibility that a new Zimbabwean Prime Minister sought through this amendment. Needless
to say, an appointee from outside Parliament who has to depend on the Prime Minister to get a seat in
Parliament is, almost invariably, more loyal than other Cabinet colleagues. Through this approach,
the Prime Minister‟s dominance over cabinet is enhanced. In the absence of a by-election in a safe
constituency, the Zimbabwean Prime Minister had an easy avenue through the old Section 33(1)(d)
for purposes of getting a seat for the appointee. Section 33 (1)(d) gave the Prime Minister the power
to appoint six of the forty members of the Senate.29 He/she could persuade one of the appointed
Senators to resign so as to enable him to get a seat for an appointed Minister. It must be evident that
this amendment increased the Prime Minister‟s influence through patronage.

Thirdly, it revisited the issue of the minimum age of Senators. As already noted, Amendment 2
reduced the minimum age from 40 to 30 years. It appears that this had been done without the support

26
See Section 69(1)(b) of the Lancaster House Constitution.
27
See Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law, 8th edition, 1998, Penguin
Books, p.173.
28
Ibid
29
The provision was in the following words: “six shall be appointed by the President, acting on the advice
of the Prime Minister”

7
of the white members of Parliament who preferred the conservative age of 40. Amendment 3 made
a distinction between Senators elected by white members and the rest. For the former, the minimum
age was raised back to 40 while the latter remained at 30. It is difficult to understand why it became
necessary to perpetuate the black-white divide in the franchise. The whites must have argued that the
reasons advanced to support the reduction of the minimum age to 30 did not apply to them and given
that the constitution had separate provisions for blacks and whites in some aspects, they saw nothing
wrong with creating a distinction on this particular score.

Amendment 4 (1984): Strengthening the hand of the Prime Minister vis-à-vis the non-executive
President
The Lancaster House Constitution provided for a parliamentary executive system of government
headed by a Prime Minister and with a non-executive President as head of state. The framers devised
a system whereby the non-executive President, while largely acting on the advice of the Prime
Minister, retained some discretionary powers in relation to certain specific issues. Thus, while section
66 provided that “in the exercise of his functions, the President shall act on the advice of the Cabinet
or a Minister acting under the authority of the Cabinet,”30 the same section made it clear that the
President “shall not be required to act on the advice of any person or authority31 in relation to matters
such as dissolution of Parliament and the dismissal of a Prime Minister who had lost a confidence
vote in Parliament.

A major area of substance was that the President was empowered to make certain key appointments
on the advice of some other body other than the Prime Minister or his Cabinet. This created a
potential area for reducing the power and influence of the Prime Minister. For instance, the
chairperson and two other members of the Electoral Supervisory Commission and the Ombudsman
were appointed by the President “on the advice of the Judicial Service Commission.”32 In relation to
judicial appointments, only the Chief Justice was appointed on the advice of the Prime Minister. The
other judges were appointed on the advice of the Judicial Service Commission.33 The Director of
Prisons and the Comptroller and Auditor General were appointed in the advice of the Public Service
Commission.34 The main rationale was to shield these appointments from direct political influence.

Amendment No. 4 brought the Prime Minister directly into play, by making all appointments to be
based on his/her advice. The new formulation required the President to act on the advice of the Prime
Minister who in turn was obliged merely to “consult” the relevant body. Thus, in the appointment of

30
See Section 66(1) of the Lancaster House Constitution
31
Ibid
32
Section 61 (1)(a) and Section 107
33
Section 84(2)
34
Sections 73(2) and 105(2)

8
judges, the President now had to appoint “acting on the advice, tendered after consultation with the
Judicial Service Commission, of the Prime Minister or such other Minister or Ministers as may be
designated for the purpose by the Prime Minister”.35 The net effect of the Prime Minister‟s direct
involvement in almost all key appointments to state institutions was to concentrate immense powers
in one person. This already laid the basis for a future powerful executive president.

Amendment 4 had two other aspects. It introduced the notion of appointing judges for a fixed period.
It also increased the membership of the Judicial Service Commission from four to six by adding the
Attorney General and one other appointee.36

Amendment 5 (1985): Provincial Governors

This amendment dealt with a new political institution in the form of provincial governors. Provincial
governors were not provided for in the Lancaster House Constitution. The amendment inserted a new
section 111A in the Constitution which stated that “an Act of Parliament may provide for the
appointment by the President of governors for any areas within Zimbabwe.” It did not specifically
refer to “provincial governors” and was worded in such a way as to permit the appointment of district
and/or regional governors. The functions of a governor were not stated in the constitution but were to
be prescribed by an Act of Parliament. However, the institution was being introduced for the “better
administration of Zimbabwe”. That the governor was to be a powerful politician was confirmed by
provisions which made the new office incompatible with being the President of the Senate37 or being
speaker of the House of Assembly38 or being a Minister or Deputy Minister39 or even being a Member
of Parliament .40

This amendment seems to have been designed to create a new political office for the furtherance of
the dominance of the ruling elite. The governorship provided a new powerful portfolio that could
absorb many high-ranking politicians who were not in cabinet. It also provided an avenue through
which the ruling party could exert a direct control of opposition strongholds such as Matebeleland.
Although not stated in the Constitution, a governor reported to the Prime Minister whose political
tentacles were thereby widened. Amendment 5 must therefore be seen as part and parcel of the quest
for political dominance by the Prime Minister.

35
See new section 84(2) brought by Amendment 4
36
See Section 90 brought by Section 4 of Amendment 4
37
See Amendment of Section 35 whereunder the President of the State was required to resign if he/she accepted
appointment as a governor.
38
See amendments to Section 40 which required the Speaker to resign if he/she accepted appointment as a
governor
39
See amendments to Section 70 which required a Minister to resign if he/she accepted appointment as a
governor.
40
See amendments to Schedule 3

9
There were two other aspects in Amendment 5, First, the amendment purported to guarantee the
independence of the Electoral Supervisory Commission41. Secondly, the Prime Minister was placed
in the same position as the Chief Justice regarding the initiation of steps to investigate the question of
removal of a judge from office.42 The original position was that the Prime Minister only had power to
initiate an investigation in respect of the Chief Justice, while the latter alone had the prerogative to
initiate proceedings with respect to any other judge. The amendment, in its quest to further entrench
the dominant position of the Prime Minister, opened the judiciary to political manipulation.

Amendment 6(1987): Abolishing the Reserved Seats for Whites

Among the most notorious provisions of the Lancaster House Constitution were those clauses that
preserved the privileged status of the white population. The constitution provided for two voters rolls:
a “white roll” on whom were registered white voters and a “common roll” on whom were registered
all other voters.43 White voters participated in a separate election in which they elected their own
members of the House of Assembly. Twenty seats out of one hundred seats in the House of Assembly
were reserved for whites44 while in the Senate, out of forty members, ten had to be white.45 The latter
were elected by an electoral college consisting, exclusively of the twenty white members of the House
of Assembly.46

To ensure that these provisions remained in force for a considerable period, the constitution
entrenched them by providing that none of the provisions could be amended in the first seven years of
independence without the approval of all members of the House of Assembly. 47 This effectively gave
the white members a veto over any proposed constitutional amendment seeking to abolish the
reserved seats. After the first seven years, the constitution required an affirmative vote of seventy
members.48

Amendment 6 came immediately after the expiry of the first seven years of independence and
abolished the reserved white seats. The timing of the amendment, which was immediately after the
expiry of the entrenched seven years, strongly indicated the abhorrence with which this racial misfit
was viewed. It had been imposed at Lancaster as a key component of some of the compromises that
had to be made by the liberation movement to secure independence.

41
See new subsections added, particularly 61(5) and (9).
42
See amendment to Section 87 by Section 6 of Amendment 5.
43
See paragraph 3 of the Schedule 3 of the Lancaster House Constitution
44
See section 38 of the Lancaster House Constitution
45
See section 33 of the Lancaster House Constitution
46
Ibid
47
See Section 51(3),(5) of the Lancaster House Constitution
48
Ibid

10
The amendment abolished the reserved white seats and the separate “white roll”. It declared the seats
vacant and the persons concerned lost their seats on the coming into force of the amendment.49
However, the sizes of the House of Assembly and the Senate were not changed. The replacements
were elected by an electoral college consisting of the members of the House of Assembly. 50
Amendment 6 therefore ended the era of racial segregation in Zimbabwe‟s electoral system, a feature
which had been a pillar of the system since 1890 when the country was colonised. It was therefore a
progressive amendment.

Amendment 7 (1987): Executive Presidency

This amendment introduced the most substantial change to the governmental system in Zimbabwe. In
one swap, the parliamentary executive system of the Lancaster House Constitution was
metamorphosised into some obscure system most of whose features exhibited a presidential character.
The government Minister who piloted the Amendment Bill in Parliament, regarded it as
“revolutionary”. He had the following remarks to make:
“Mr Speaker, Sir, this is a proud moment for me. Just over two months ago, I came before
this house to present the bill which led to the removal of racial representation in Parliament
and rid our constitution of the taint of racialism. Now I come before a House with the
privilege of introducing another Bill, one which will fundamentally change, indeed
revolutionise, the political structure of this country… This bill, Mr Speaker, will introduce
what is generally known as an Executive Presidency into our political system”.51

The Lancaster House Constitution provided for a parliamentary executive system of the Westminster
model. In essence, it was largely a codification of the British constitutional system with a non-
executive president taking the place of the British Queen as head of State. The government was
headed by a Prime Minister who had to be a member of Parliament52. Like under the British system,
the leader of the majority party became the Prime Minister. On a vote of no confidence being passed
by the House of Assembly, the Prime Minister was obliged to resign, failing which the President had
to remove him/her from office.53 Although the constitution purported to vest executive authority in
the President54 it is the Prime Minister who had real executive authority and this was fortified by
section 66(1) which required the President to “act on the advice of the Cabinet.” However, the
President‟s role was not entirely ceremonial. In a fundamental respect, the President had power to

49
See Section 11(2) of Amendment 6
50
See new sections 33(1)(a) and 38(1)(b) inserted by Amendment 6
51
Minister of Justice, Legal and Parliamentary Affairs, Dr Eddison Zvobgo, Hansard Vol 14 , No. 131 at 1554.
52
See Section 69(1) of the Lancaster House Constitution
53
See Section 70(1) of the Lancaster House Constitution
54
See Section 64 of the Lancaster House Constitution

11
cause Cabinet to reconsider any advice tendered to him/her.55 Although Cabinet was entitled to
maintain its position and override the President‟s objections, this power acted as a useful check on the
executive powers of the Prime Minister. It is instructive to reproduce the provisions of Section 66(2)
which were in the following terms:
“……………..

The President also wielded substantive powers on the passing by the House of Assembly, of vote of
no confidence in the government. If the Prime Minister did not resign within three days or failed to
advise the President to dissolve Parliament, the latter had power either to dismiss the Prime Minister
or dissolve Parliament.56

Finally, the President was empowered to make certain key appointments on the advice of some other
bodies other than the Prime Minister. For instance, the President appointed members of the
Delimitation Commission “with the approval of the Chief Justice”57 and the Chairperson of the
Electoral Supervisory commission on “the advice of the Judicial Service Commission” 58. Except for
the Chief Justice who was appointed by the President on the advice of the Prime Minister, judges
were appointed on “the advice of the Judicial Service Commission”59.

Amendment No 7 created an all powerful president who enjoyed the “best” of both the parliamentary
executive system and the American style executive presidency. What is being described as “best”
here are those features which give real and substantive power to a head of government. First, like the
American style president, the President was not made a member of Parliament. He was to be
separately elected60 with a term of office longer than that of Parliament61. Being not a member of
Parliament made the president a separate and independent state organ exercising power at almost an
equal level with that of Parliament. The President was not responsible to Parliament. Under the
parliamentary executive system, the Prime Minister is, by definition, a member of Parliament and is
responsible to it. Secondly, and flowing from the fact of the President not being a member of
Parliament, he/she was shielded from removal from office by Parliament on grounds of incompetence
or dereliction of duty. Provision was made for Parliament to impeach the president but this was
restricted to grounds of “gross misconduct”, “wilful violation of the constitution” and “physical or
mental in capacity”.62 Given that a two-thirds majority was required to approve the President‟s

55
See Section 66(2) of the Lancaster House Constitution
56
See Sections 63(2) and 70(1) of the Lancaster House Constitution
57
see section 59 of the Lancaster House Constitution
58
See section 61(1)(a) of the Lancaster House Constitution
59
See section 84 of the Lancaster House Constitution
60
Section 28(2)
61
Section 29(1)
62
Section 29(3)

12
removal on these grounds, this was calculated to make it impossible for Parliament to remove the
President. This is the position occupied by the American president. Under the parliamentary
executive system, parliament may remove a Prime Minister from office on any ground stretching from
incompetence to misconduct by the simple act of a vote of no confidence.

Thirdly, while in the American system the president‟s separate existence from Congress is counter-
balanced by the fact that he/she has no power to dissolve the latter whatever the circumstances, the
executive president in Zimbabwe had no similar restrictions as he was also given powers to dissolve
Parliament. On this aspect, the president was given the powers of a Prime Minister under the
parliamentary executive system. It is well established under the latter system that the Prime Minister
enjoys the prerogative to advise on a dissolution of Parliament at anytime and this has been described
as a “powerful weapon in the hands of a Prime Minister.”63 Yet, on this aspect, the executive
president in Zimbabwe was given powers beyond that of a Prime Minister in that the power to
dissolve Parliament could be exercised as a reaction to a vote of no confidence in his/her
government.64 In general, the Prime Minister under a parliamentary executive system is obliged to
resign if he/she loses a vote of confidence. In the exceptional case where the Prime Minister, in
response to a vote of no confidence, advises on, and obtains, a dissolution of Parliament, this leads to
the same thing in that since the Prime Minister is a member of Parliament, dissolution necessarily
leads to new elections in which he/she may not be re-elected. In other words, a vote of no confidence
must be followed either by the resignation of the Prime Minister or his/her seeking a new mandate
which may never come.

This latter aspect shows the enormity of the powers wielded by the Zimbabwean executive president;
he is empowered to react to a vote of no confidence in his/her government by dissolving Parliament
with himself remaining comfortably in office.

Fourthly the executive president was given veto powers over proposed legislation. The power to veto
legislation was borrowed from the American president. Under the parliamentary executive system,
the head of state is ceremonial and is, almost, invariably, expected to assent to a Bill passed by
Parliament. In the UK, for example, the absence of veto power has been expressed as follows:

“Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or
that it was intensely controversial would nevertheless be unconstitutional. The only
circumstances in which the withholding of the royal assent might be justifiable would be if
the Government itself were to advise such a course – a highly improbable contingency or

63
See A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law 12th Edition, Longman, 1997 p.191
64
See section 31F(3)

13
 possibly if it was notorious that a bill had been passed in disregard of mandatory procedural
requirements, but since the Government in the latter situation would be of the opinion that the
deviation would not affect the validity of the measure once it had been assented to, prudence
would suggest the giving of assent.”65

The American President‟s power to veto legislation may be overridden by a two-thirds majority of
congress. This means that where the president has vetoed proposed legislation, a two-thirds majority
of congress may force him to assent to the legislation. This restriction on the powers of the American
president was abandoned by the creators of the Zimbabwean executive president. Where, by a two-
thirds majority, Parliament resolves to return a vetoed Bill to the President, the latter is, unlike the
American president, still not obliged to assent to the Bill but has the option to dissolve Parliament.66

The extra-ordinary nature of this approach becomes more pronounced when it is noted that other
presidential systems have a much diminished role for the president in either assenting or withholding
assent to legislation. In South Africa, the President cannot veto legislation and is only empowered to
“refer” back to the National Assembly for “reconsideration” if he has “reservations about the
constitutionality of the Bill.”67 If the National Assembly reconsiders the Bill and returns it to the
President, the latter is obliged to assent except where he still has reservations about its
constitutionality, in which case he must refer it to the Constitutional Court for a final and binding
ruling.68 In Uganda, if Parliament reconsiders a Bill which has been vetoed by the President and
passes it with a two thirds majority, the Bill “shall become law without the assent of the President” 69.
Section 58(5) of the 1999 Nigerian Constitution is to the same effect and provides as follows:
“Where the President withholds his assent and the Bill is again passed by
each House by two-thirds majority, the Bill shall become law and the
assent of the President shall not be required.”

In addition to all the above aspects, the executive president was given a final say over appointments of
key state functionaries. The only restriction on his appointment powers was the requirement to act
“after consultations with” some named state organ. He was not bound by the views expressed by the
persons or organs being consulted.

Given the wide-ranging powers of the executive president, some of which had no precedent in either
the presidential or parliamentary executive systems, Amendment No. 7 introduced the most

65
See Stanley de Smith & Rodney Brazier, op.cit. p. 127-128
66
See section 51 (3b)
67
See section 79(1) of the 1996 South African Constitution.
68
Section 79(4) of the 1996 South African Constitution
69
See section 91(6) of the 1995 Ugandan Constitution

14
fundamental changes to the Lancaster House framework. It completed the process that had started
with Amendment No. 4, namely the concentration of power in the hands of one person.

Amendment 8 (1989): Attorney-General

This amendment was introduced by Act No. 4 of 1989. It closed a number of minor loopholes which
had been noted after the introduction of the executive presidency by Amendment 7. For example,
the original formulation of section 31 had not made provision for who would occupy the office of
president in the event of it being “vacant”. Section 31 had only provided for the “absence” of the
President and inability to perform the functions of his office owing to illness or “any other cause”.
Amendment 8 reformulated section 31 and made it clear that in the event of a vacancy in the office of
President, the Vice-President would takeover as Acting President.70

The most substantive portion of Amendment 8 dealt with the office of the Attorney-General. In the
Lancaster House Constitution, the Attorney-General‟s office was purely professional. In terms of
section 76(1), the Lancaster House Constitution stated:
“There shall be an Attorney-General whose office shall be a public office
and part of the Public Service.”

Making the Attorney General part of the Public Service was intended to create a non-partisan official.
This was reinforced by provisions which required the Attorney-General to be a person qualified for
appointment as a judge of the High Court. In making an appointment to the office, the President had
to act on the advice of the Prime Minister who was required to consult the Public Service
Commission, which in turn, had to consult the Judicial Service Commission. Parliament had to be
informed before any appointment if the Prime Minister intended to propose a person not
recommended by the Public Service Commission.71

Amendment 8 made substantial changes to this notion of the Attorney-General by turning the office,
by and large, into a political institution. This was achieved by making the Attorney General “the
principal legal adviser to the Government and taking the office out of the Public Service.” Further,
he/she was made, ex officio a member of cabinet and Parliament but without a right to vote in the two
bodies. While the President was still required to appoint a person qualified for appointment as a judge
and to consult the Judicial Service Commission, the requirement to inform Parliament before any
appointment where the President‟s choice was inconsistent with any recommendations made was

70
See the current formulation of section 31
71
See section 76(2) of the Lancaster House Constitution.

15
dropped. The exclusive responsibility of the Attorney-General as a prosecuting authority was
retained.

This amendment relating to the Attorney-General was, in essence, a continuation of the scheme of
consolidating political power in the executive arm of the state. This scheme required the law to be
tailored to the interests of the ruling elite, hence providing the Attorney-General a seat in the cabinet -
the most politically sensitive organ. The Attorney-General was expected to have a full grasp of the
political objectives of Government and/or the President and then, in turn, ensure that the law served
those objectives. This is what the creators of this office understood by the role of being “the principal
legal adviser to the government.”

Although the Attorney-General still retained the exclusive prosecuting authority in criminal matters, it
is submitted that this role was greatly compromised by the political context of the other role. An
Attorney-General sitting in Cabinet and Parliament can hardly be sufficiently independent to authorise
criminal prosecutions in politically sensitive matters. For this reason, some countries create two
different offices for the “legal adviser to the government” and the “prosecuting authority”. Thus, in
Malawi, the Attorney-General as the principal legal adviser to the Government may be a Minister but
is not involved in criminal prosecutions.72 Criminal prosecutions are undertaken by the Director of
Public Prosecutions, a public office created by the constitution for that purpose.73

Amendment 9 (1989): Abolishing the Senate and introducing a unicameral legislature

The Lancaster House Constitution provided for a bicameral legislature in which Parliament consisted
of two chambers, a Senate and a House of Assembly. It was a replica of the British Parliament with
the Senate corresponding to the House of Lords and the House of Assembly to the House of
Commons. The House of Assembly had one hundred members, all of whom were directly elected by
registered voters. The Senate, on the other hand, consisted of forty members none of whom was
directly elected. They were in three groups as follows: twenty-four elected by the House of
Assembly; ten chief elected by a council of chiefs and six appointed by the President on the advice of
the Prime Minister.74

A two-chamber Parliament may be criticised for being expensive to run for a developing economy
and for providing a lengthy, and sometimes complex, legislative process. It appears that in response

72
See section 98 of the 1994 Malawian Constitution.
73
See section 99 of the Malawian Constitution 1994
74
See section 33 of the Lancaster House Constitution as amended by Amendment 6 (1987).

16
to these criticisms, most parliaments are unicameral.75 However, there are good grounds to justify a
second chamber. First, it provides an opportunity for a second view on legislative proposals, thus
leading to effective legislation. In this instance, the second chamber is utilised as a “house of
revision”. Secondly, it can be used as an avenue of “checks and balances” in respect of executive
powers, such as where the second chamber has the power to confirm or reject the executive‟s
proposed appointments to some public offices, such as judges that of and cabinet ministers. This is
the role of the Senate in the United States. Thirdly, it may accommodate both cultural and minority
representatives in heterogeneous societies, thus leading to effective representation.

Amendment 9 abolished the Senate and established a unicameral legislature. The former “House of
Assembly” became “Parliament” but with its composition increased from one hundred to one-hundred
and fifty members. Thus, the size of the new one-chamber Parliament was made bigger than its two-
chamber predecessor. This raises questions about the intentions of the authors of this aspect of
constitutional reform. The main objective appears to have been to shorten the legislative process with
a view to accommodating the political elite‟s undemocratic tendency of rusting legislation through
Parliament whenever this suited its interests.

However, the government sought to mask this grand objective by claiming that this constitutional
amendment was an essential part of its scheme to create “a truly indigenous constitution reflecting the
legitimate aspirations and wishes of (our) people.”76 During the second reading of the Constitutional
Bill in the Senate, the government‟s claim was in the following words:

“Mr President, as clearly explained in the memorandum to the Bill, the primary object of this
Bill is to create a unicameral legislature. That is to say, instead of the present Senate and the
House of Assembly, we shall now have only a single legislature which will truly be our own
constitutional creation, based on the freely expressed political will of our people, as
represented in Parliament by their duly elected and appointed representatives.

In other words, in place of the present two Houses of Parliament based on the Westminster
model, we shall now have only one legislative Chamber which will be deeply rooted in our
own native soil, and whose sovereignty will be derived from our own people as the custodians
of our nation‟s political power.”77

75
See I.M Rantenbach & E.F.J. Malherbe, Constitutional Law, 2nd Edition, Butterworths p.101 and the
references therein.
76
See the Minister‟s second reading speech, Parliamentary Debates: The Senate 1989, para 922
77
Ibid

17
These sentiments were demonstrably hollow. Just as there was nothing indigenous about a one
chamber legislature, there was nothing particularly Westminster about the two-chamber legislature.
The appeal to notions of being “deeply rooted in our own native soil” was meant to divert attention
from the real issue, which was the consolidation of power in the hands of the political elite by
shortening the legislative process.

Amendment 10: Two Vice-Presidents

This amendment was introduced by Act No. 15 of 1990. Its sole purpose was to make provision for
the appointment of a second vice-president. It did not make it mandatory for the country to have two
vice-presidents but merely permitted the President to appoint “not more than two Vice-Presidents”. 78
Thus, it left it to the President to decide whether to have one or two vice-presidents. Having created
room for two Vice-Presidents, the Amendment had to deal with the issue of who, between them,
would assume the functions of the office of President in the event of that office being vacant or the
President being absent from Zimbabwe or being unable to perform the functions of his/her office.
This was addressed by providing for four scenarios as follows: (i) in every case, the President was
empowered to designate the vice-president who would assume the functions of the office of president,
(ii) in the absence of a designation by the president, the vice-president who last acted as president
would take over, (iii) in the absence of both Vice-Presidents, the President was empowered to
designate a Minister for such an eventuality and (iv) where the president had not designated a
minister, Cabinet was empowered to designate a Minister to takeover the functions of the office of
president.

It is instructive to note that the additional office of a Vice-President did not affect the powers of the
President. On the contrary, it enhanced the status and power of the president by giving him/her the
sole discretion to decide whether or not to have a second vice-president and if so, what functions were
to be allocated to that vice-president. The prerogative of the president to designate which of the two
vice-presidents would act as president during his/her absence gave the president immense powers of
control over his vice-presidents.

Amendment 10 was dictated exclusively by the interests of the ruling party, ZANU (PF), which in
1987 became a merger of the two liberation movement: PF ZAPU and ZANU (PF). The constitution
of the “new” party provided for two vice-presidents to cement unity: one from each side. It was
decided that the constitutional structure of the party be duplicated in government. The former leader
of PF-ZAPU, Joshua Nkomo, who, upon merger of the two parties, became one of the two vice-

78
See section 31C inserted by Section 4 of Amendment 10

18
presidents of the new party had to have a similar position in government. It was therefore the one-
party state mentality that led to the creation of the second vice-presidency – the ruling party and
government were viewed as two sides of the same coin.

Amendment 11: First Amendment of the Bill of Rights and Land Reform 1
The Lancaster House Constitution entrenched the Bill of Rights for the first ten years of
independence. The entrenchment was in the following form: any proposal to amend the Bill of
Rights less than ten years after 18 April 1980 required the approval of all members of the House of
Assembly.79 This made it virtually impossible for Parliament to amend any provisions of the Bill of
Rights in the first ten years of independence. As already noted, Amendment 9 repealed this special
entrenchment and subjected all the provisions of the Constitution (including the Bill of Rights) to a
less rigid amendment procedure requiring a two-thirds majority of the total membership of
Parliament.

Amendment 11 was the first attack on the Lancaster House Bill of Rights. It is significant that this
first attack was largely directed at section 16 which protects private property. Section 16 had, in the
first ten years of independence, been the main obstacle to the new government „s acquisition of land
for resettlement for agricultural purposes. It imposed a number of restrictions. First, it imposed a
“rule of law” regime by requiring every compulsory acquisition to be under the “authority of a law”.
The law in question had to provide for certain specified issues, the net effect of which was that any
land reform contemplated by government had to be deliberate and conducted with due regard to the
concerns of landowners. This meant that there had to be an Act of Parliament dealing with land
acquisition. Secondly, it provided that only “under-utilised land” could be compulsorily acquired for
settlement for agricultural purposes.80 Thus productive farms which were not under-utilised could not
be acquired at all for settlement for agricultural purposes, however desirable the acquisition may have
been in a particular case. It was a complete defence, and therefore a permanent bar to compulsory
acquisition, for a landowner to prove that his/her land was not under-utilised.

Thirdly, notwithstanding that the land being acquired was under-utilised, compensation had to be paid
“promptly” and in an “adequate” measure.81 This “prompt and adequate” measure of compensation
was understood by the framers of the constitution and the new government as requiring compensation
on the market value of “willing seller, willing buyer”.

79
See section 52 (3) of the Lancaster House Constitution
80
See section 16(1)(b) of the Lancaster House Constitution.
81
See section 16(1)(c) of the Lancaster House Constitution

19
Fourthly, a recepient of compensation who was a citizen of, or ordinarily resident in Zimbabwe was
entitled to remit the whole amount of any country of his/her choice outsider Zimbabwe “free from any
deduction, tax or charge other than ordinary bank charges”82.

Further, access to the courts was guaranteed, where the acquisiton was contested, the government was
compelled to apply to court for confirmation of the acquisition.83 The courts were empowered to (i)
grant an application for the “prompt return” of property where confirmation of acquisition had been
refused84 and (ii) determine any question relating to compensation85. The right of land owners to
appeal to the highest court of the land was constitutionally entrenched.86

Amendments No.11 came in to demolish the above framework. Its first line of attack was the
restriction relating to under-utilised land. It made all land liable to compulsory acquisition of the state
so wished. Thus, even productive farms could be compulsorily acquired as long as the acquisition
was “reasonably necessary for the utilisation of that or any of the land for settlement for agricultural
purposes or for purposes of land reorganisation, forestry…87 The second aspect related to
compensation. The amendment changed the “prompt and adequate” measure of compensation and
replaced it with “fair compensation … within a reasonable time”. The intention of this amendment
was to create more flexibility in the assessment and payment of compensation. This was achieved by
departing from the “adequate” criterion which was considered to be market value of “willing seller,
willing buyer”, and giving government more time to find the money via the device of “reasonable
time” which replaced “prompt payment”.

The third aspect was the question of the role of the courts in the determination of issues of
compensation. Amendment 11 repealed subsection 2 of section 16 and replaced it with a new
provision which ousted the jurisdiction of the courts in determining the fairness or lack of it, of
compensation paid for the acquisition of land. The new subsection provided as follows:
“(2) ………
………..”

The amendment also removed the right of landowners to remit proceeds of compensation to any
country of their choice outside Zimbabwe. These aspects were fundamental. The removal of the
restrictions relating to underutilised land gave government a large measure of access to land for

82
See section 16(5) of the Lancaster House Constitution
83
Section 16(1)(d)
84
Section 16(1)(e)
85
ibid
86
ibid
87
See the new section 16 (1) (a) inserted by section 6 of Amendment

20
acquisition. Any piece of land could be targeted for acquisition. This provided a basis for developing
a land reform programme. The charge from “adequate” to “fair” compensation was meant to side-
step the unaffordable levels entailed by the market value of “willing seller, willing buyer.” It must be
noted that although the Supreme Court had been alive to the need to water down the market value
concept emanating from the “adequate” measure of conception in May and Ors v Reserve Bank of
Zimbabwe88, the judges essentially endorsed the market value as the starting point to an assessment of
“adequate” compensation. Dumbutshena CJ opened his examination of the concept of adequate
compensation by embracing the definitions in the American case of United States v Miller89 and
Black\‟s Law Dictionary, 5th Edition, both of which emphasised the market value. He wen ton to state
as follows:
“The Compensation, to be “adequate”, must be “sufficient” to compensate the owner for the
loss of his property, without imposing an unwarranted penalty on the public because the
requisition is effected in the interest of the public community. The interest of the owner of
the property acquired must of necessity be balanced with the interest of the public from whom
the money paid in compensation comes.”90

While this passage may be read as connoting a compensation less than the market value, in the
context of the judgment, Dumbutshena CJ was merely attacking the proposition that the “market
value” in that case included some speculative premium. He remained firm of the view that adequate
compensation depended on market value as long as the latter is properly ascertained. Gubbay JA &
Beck JA who co-authored the dissenting judgment were very clear about the essence of “adequate”
compensation. They wrote as follows:
“… (i) the compensation is to be determined by reference to the value of the expropriate
property to the person from whom it is taken and not by reference to the value of that property
to the expropriating authority in the question is what the owner has lost and not what the state
has gained, (ii) the compensation should not be less than the money value into which the
expropriated properly could have been converted if there had been no expropriated”91

This is an outright “willing seller, willing buyer” framework. It was only McNally JA who was
forthright that adequate compensation could be assessed at less than the market value. He said:
“The market price, however, may not be the appropriate basis for determining the adequacy
of the compensation. The particular circumstances of the case may dictate some other
measure. Compensation is a matter of equity, and of being fair both to the person

88
1985(2) ZLR 358 (SC)
89
(1943) 317 US 369 at 371-4
90
At p.374F
91
At 397 E

21
 expropriated and to the general public for whose sake te expropriation is undertaken, and
from whose, pockets, by way of taxation, the price ultimately comes.”92

In the light of this approach by the Supreme Court, there was justification for departing from the
“adequate” measure of compensation, given the lack of adequate resources. However, the
formulation of “fair” did not necessarily guarantee a different approach by the courts. A judiciary
committed to the free market system can easily define “fair” as connoting a market value. In fact, in
American jurisprudence on expropriation matters, “just compensation” has been interpreted as
the”market value.”93 The fear that the courts could undermine the intention of the framers led to the
ouster clause. The courts were prohibited from questioning any criteria of fairness ot the set out in an
Act of Parliament. This has no justification and undoubtedly entrenched in other sections of the
constitution. In the light o fMcNally JA‟s statement in the May case, it would have made better sense
for the framers, to have left the matter in the hands of the courts.

It is submitted that the ouster clause had no rational connection with a genuine land reform agenda. It
went beyond what was reasonably necessary to achieve an equitable land redistribution exercised. It
betrayed the government‟s inner undemocratic instincts and an arrogant display of political power.
This particular amendment was clearly contrary to the rule of law, however defined .

Amendment 11 also amended another section of the Bill of Rights. It amended section 15 by adding
new subsections (3) and (4) as follows:
“(3)………..”
These amendments were meant to reverse Supreme Court judgments. In S v Ncube94 the Supreme
Court outlawed corporal punishment of adult offenders as inhuman or degrading punishment contrary
to section 15(1) of the Constitution. In S v A Juvenile95 the issue before the Supreme Court was
whether or not corporal punishment of juveniles was also contrary to section 15(1). In a three to two
decision, the court also outlawed corporal punishment of juveniles as being contrary to section 15(1).
In his dissenting judgment, McNally JA drew a distinction between an adult and a juvinile and said:
“It seems to that there is a very clear distinction between the corporal punishment of adults
and the corporal punishment of juveniles. A young person is a person whose character is
being formed. He or she is by nature open to advice, correction, example and encouragement
by parents, teachers, elders and those in authority. An adult‟s character is already formed, for
better or worse.”96

92
At 381 G-H
93
See generally United States v Niller (1943) 317 US 369 at 373-4
94
1987 (2) ZLR 246 (SC)
95
1989 (2) ZLR 61 (SC)
96
At 93 F

22
He characterised the view of the majority as that of a “sensitive and articulate minority” but which
“tends inevitably to be heard more frequently and more persuasively that of the silent majority.”97

These conservative sentiments struck a chord in government circles where it was felt that section
15(1) could be used to overturn some deeply held views on corporal punishment and similar matters.
Given the method of hanging as a way of executing the death penalty was being challenged as an
infringement of section 15(1). The amendments were therefore made to reverse the Supreme Court‟s
liberal views and to impose what were considered to be the shared perspectives of the “silent
majority”.

Amendment 11 introduced new formulations for the judiciary. It repeated section 79 and brought in a
new section which stated the independence of the judiciary in more explicit terms.98

Another aspect of Amendment 11 was that it extended the right to vote to permanent residents. In the
Lancestor House Constitution, only citizens were entitled to vote99. With the abolition of dual
citizenship, there were many persons who opted to retain their foreign citizenship but remain
permanently resident in Zimbabwe. It was decided that such persons retain their voting rights for the
duration of their natural lives and hence the amendment.

Amendment 12: Service Commissions and Land Reform 2

This amendment was effected by Act number 4 of 1993. Its main focus was on rearranging the
Service Commissions. The Lancaster House constitution has purported to settle most questions
relating to the organisation and administration of the Public Service, the Public Force, the Prison
Service and the Defence Forces. Providing for such issues in the constitution meant that every
proposed change to the operational framework of any of these security arms of the state had to lead to
a constitutional amendment. The government wanted flexibility in dealing with the security arms and
this was achieved by amending the constitution and transferring matters of detail to an Act of
Parliament . For example, section 93(3) brought by Amendment 12 provided as follows:

“An Act of parliament shall make provision for the organisation, administration and discipline
of the Police Force, including the appointment of persons to offices or ranks in the Police
Force, their removal from office or reduction in rank, their punishment for breeder of
discipline and the fixing of their conditions of service.”

97
At page 92
98
See Section 79B of the Constitution
99
See paragraph 3 of schedule 3 of the Lancestor House Constitution

23
There were similar clauses for the Public Service100 , the Defence Forces101 and the Prison service102.
The question is; why was this flexibility necessary? The answer is that this was part and parcel of the
scheme of consolidating power in the hands of the executive which had almost unlimited control of
Parliament. The idea was to use an Act of Parliament to fashion the security arms in a manner
consistent with cabinet control of their day to day functioning.

Amendment 12 also dealt with two aspects of the bill of Rights as a continuation of the land reform
changes. First, it amended section 16(1) (e) by repeating a clause which had been missed by
Amendment 11. Section 16 (1)(e) still had a provision entitling a landowner to approach the courts
“for the determination of any question relating to compensation”. It is this latter clause which was
removed by Amendment 12 as it was clearly inconsistent with the new section16(2) which had been
brought about by Amendment 11. Secondly, it amended Section 18 in a substantive way. In the
Lancaster House Constitution, section 18(1) provided as follows:
“Every person is entitled to the protection of the law”.
Section 18(9) provided as follows:
“Every person is entitled to be afforded a fair hearing within a reasonable time by an
independent and impartial court or other adjudicating authority established by law in the of
the existence or extent of his civil rights or obligations."

These two substantive provisions were inconsistent with the new section 16(2) introduced by
Amendment 11 whereby the courts were prohibited from adjudicating on the fairness or otherwise of
compensation for acquired land. This meant that notwithstanding Amendment 11, landowners could
still have relied on section 18(1) and 18(9) to challenge the law on fair compensation, leaving it to the
supreme Court to resolve the apparent contradiction. This is what Amendment 12 came to remedy.
The two subsections were reformulated by the addition, at the beginning of each sentence, of the
phrase, „subject to the provisions of this constitution----„. This removed the contraditon and gave
constitutional sanctity to land reform changes stated by Amendment 11.

These two loopholes show the clumsy nature of the process of changing the law to accommodate the
political aspects of the land reform process. This was not to be the last.

Amendment 13: Reversing Supreme Court ruling on death row phenomenon and Land Reform
3.

100
Section 73(2)
101
Section 96(3)
102
Section 99(3)

24
This amendment was effected by Act No. 9 of 1993. The main focus of this amendment was
reversing the Supreme Court decision in Catholic Commision for Justice and Peace in Zimbabwe v
A-G and Others103. In that case, the CCJP made an application to the Supreme Court in terms of
Section 24 of the Constitution to prevent the execution of four convicted murderers and to have the
sentences of death set aside. The basis of the application was that the delay in carrying out the
sentences taken together with the conditions under which the four prisoners were being held in
custody, was itself a breech of section 15(1) on inhuman and degrading punishment and treatment.
The Supreme Court agreed with this argument and held accordingly. It set aside the death sentences.
The executive was outraged by this ruling, claiming that the Supreme Court had usurped the role of
the executive. Amendment 13 was effected to improve the views of the executive on the meaning of
the constitution. New subsections were added to section 15 as follows:
“(5) Delay in the execution of a sentence of death, imposed upon a person in respect of a
criminal offence of which he has been convicted, shall not be held to be a contravention of
subsection (1).
(6) A person upon whom any sentence has been imposed by a competent court, whether
before, on or after the date of commencement of the Constitution of Zimbabwe Amendment
(No.13) Act, 1993, in respect of a criminal offence of which he has been convicted, shall not
be entitled to a stay, alteration or remission of sentence on the ground that, since the sentence
was imposed, there has been a contravention of subsection (1).”

In Nkomo & Anor v Attorney-General & Ors104 the Supreme Court confirmed that the effect of the
new subsection (5) was to destroy, completely, the right created by the CCJP case. The court also
addressed the meaning of “any sentence” in subsection (6). It held that “any sentence” in subsection
(6) does not include the “death sentence” as this is dealt with in subsection (5). Including the death
sentence under subsection (6) would make subsection (5) superfluous.

Amendment 13 also carried further the cleaning exercise started by Amendment 12 to the
imperfections that came with Amendment 11. It reformulated 16(1)(e) to make it clear that a right
still existed to approach the High Court or other court specified by law for the return of any property
acquired if the acquisition is not confirmed it added a new paragraph (f) which clarified that the ouster
of the courts in issuing compensation only applied to land. In all other matters, any claimant for
compensation was entitled to “apply to the High Court or some other court for the determination of
any question relating to the compensation and to appeal to the Supreme Court.”105 .

103
1993(1) ZLR 242 (5)
104
1993 (2) ZLR 432 (S)
105
See the new Section 16(1)(f) inserted by Amendment 13.

25
This clarifications to the land reform provisions have largely a response to the huge international
outcry against Amendment 11. They were meant to pacify the critics.

Amendment 14: Reversing the Supreme Court ruling in Rattigan and Land Reform
This amendment was effected by Act No. 14 of 1996. It had several aspects. The first was a reversal
of the Supreme Court ruling in Ratigan and Others v Chief Immigration Officer and Others106. In that
case, the three applicants were all Zimbabwean citizens. The department of Immigration had refused
their alien husbands permanent residence in Zimbabwe. They sought a declaration that their rights
under sections 11 and 22 of the Bill of rights had been infringed by the refusal of the respondents to
permit their alien husbands to reside with them in Zimbabwe. It also held, obiter and in line wit its
earlier observations in In Re Munhumeso107 that section 11 of the Constitution was not a mere
preamble but embodied substantive rights which included the right to life, liberty, security of the
person and the protection of the law.

These two rulings were disapproved by the government and Amendment 14 was categories in
reversing them. Section 11 was repeated on government feared that the Supreme Court was going to
rely on it to outlaw some of its legislative instruments, particularly these of an oppressive disposition.
The old section 11 read as follows:

“Whereas every person in Zimbabwe is entitled to the fundamental rights and freedoms of the
individual, that is to say, the right whatever his race, tribe, place of origin, political opinions,
colour, creed or sex, but subject to respect for the rights and freedoms of others and for the
public interest, to each and all of the following, namely –

(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his home and other property and from the compulsory
acquisition of property without compensation;
and whereas it is the duty of every person to respect and abide by the Constitution and the laws of
Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection
to those rights and freedoms subject to such limitations of the protection as are contained herein,
being limitations designed to endure that the enjoyment of the said rights and freedoms by any
person does not prejudice the rights and freedoms of others or the public interest.

It was replaced by a new provision which was labelled “preamble” and in the following words:

106
1994(2) ZLR 54(5)
107
1994(1) ZLR 49(5)

26
 “Whereas persons in Zimbabwe were entitled, subject to the provisions of this Constitution, to
the fundamental rights and freedoms of the individual specified in this Chapter, and whereas
it is the duty of every person to respect and abide by the Constitution and the laws of
Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording
protection to those rights and freedoms subject to such limitations on that protection as are
contained herein, being limitations designed to ensure that the enjoyment of the said rights
and freedoms by any person does not prejudice the public interest or the rights and freedoms
of other persons.”

Section 22 was amended by the repeal of paragraph (d) of Subsection 3. The old paragraph reads as
follows:

“for the imposition of restrictions on the movement or residence within Zimbabwe of persons
who are neither citizens of Zimbabwe nor regarded by virtue of a written law as permanently
resident in Zimbabwe or for excluding or expelling from Zimbabwe any person who is not a
citizen of Zimbabwe.”

The new paragraph was in the following words:

“(i) the imposition of restrictions on the movement or residence within Zimbabwe of any person
who is neither a citizen of Zimbabwe nor regarded by virtue of a written law as permanently
resident in Zimbabwe; or

(ii) excluding or expelling from Zimbabwe any person who is not a citizen of Zimbabwe;
whether or not he is married or related to another person who is a citizen of a permanently
resident in Zimbabwe;”

A reading of the above shows an amendment formula, which was a word for reversal of the reasoning
of the Supreme Court. This is significant. By 1996, the executive arm of government had an
incredible distrust of, and intense hostility towards, the Supreme Court. It accused the Supreme Court
of pursuing a hidden political agenda of promoting white interests. There was very little basis for this.
The executive was merely displaying its undermocratic instincts which could not accommodate an
independent judiciary.

At the time of the Rattigan decision, the constitution treated alien wives differently. Any woman
married to a Zimbabwean citizen was entitled to be registered as a citizen of Zimbabwe. The Rattigan
decision did not create an entitlement to citizenship by alien husbands, so the position remained
different. Many supporters of the Rattigan reasoning argued for an elevation of alien husbands to the
same status as alien wives. The government was so opposed to the Rattigan decision that its response

27
to this equality principle was to remove the special entitlement of alien wives. Amendment 14
amended section 7 (2) of the constitution to remove the special entitlement of alien wives.

An important feature of Amendment 14 was the promotion of gender equality. One of the
anachronisms of Zimbabwe‟s Bill of Rights was that up to 1996, it did not prohibit discrimination on
the basis of gender. Amendment 14, section 23, which covers discrimination on the grounds of “race,
tribe, place of origin, political opinions, colour or creed”. It was therefore constitutionally permissible
for a law to discriminate on the grounds of gender. Amendment 14 finally incorporated gender equity
by adding “gender” on the list of prohibited grounds of discrimination. This approach was half-
hearted as the amendment allowed vague exceptions.108 One of the exceptions allowed was the
application of customary law and the consequences became evident in Magaya v Magaya109 where the
Supreme Court held that the customary law rule of preferring males to females in intestate succession
was constitutionally permissible.

A more substantive promotion of gender equality was on the aspect of citizenship. Before
Amendment 14, the Constitution drew a distinction between “legitimate” and “illegitimate” children.
A “legitimate child‟s” citizenship was determined by that of its father, while an “illegitimate child”
followed the mother. Thus, in case of a legitimate child, he/she could not be a citizen of Zimbabwe by
birth even if born in Zimbabwe to a mother who was a citizen.110 A mother could only pass on her
Zimbabwean citizenship to an “illegitmate” child. Amendment 14 changed all this and placed parents
in the same position either parent could pass on Zimbabwean citizenship to his/her child regardless of
marital status. For example, a new subsection added to section 5 provided as follows:

“(3) A person born in Zimbabwe on or after the date of commencement of the Constitution of
Zimbabwe Amendment (No.14) Act, 1996, shall be a citizen of Zimbabwe by birth if at the
time of his birth his father or his mother is a citizen of Zimbabwe.”

Amendment 14 also had some provisions on the land issue. The purpose of the provisions appear to
have been to placate some of the continuing criticisms against earlier amendments. Amendment 13
has restored, to any claimant for compensation, the right to apply to the High Court for the
determination of any question relating to compensation “except where the property concerned is land
or any interest or right therein.” Amendment 14 went further to expand the scope of this right by
extending it to cover some land cases. In other words, unlike in the previous situation where every
land acquisition was shielded from interventions by the courts over the levels of compensation,

108
See the new subsection 5 of Section 23, inserted by Amendment 14
109
1999(1) ZLR 100 (S)
110
See the old section 5(1) of the Constitution

28
Amendment 14 only shielded that land which was “substantially unused or is used wholly of mainly
for agricultural purposes and the land… is acquired” for resettlement. Where land was being acquired
for purposes other than resettlement, the courts were now empowered to entertain disputes relating to
compensation. The same situation obtained where government sought to acquire non-agricultural
land for resettlement: Amendment 14 also exempted, from the constitutional scheme, land that was
the subject matter of a treaty or convention executed by the President with one or more foreign states
or governments.111

Amendment 14 had two other aspects. First, it empowered the Electoral Supervisory Commission to
supervise the conduct of elections to the office of President and to governing bodies of local
authorities. Hitherto, it was only empowered to supervise the conduct of elections to Parliament.112
Secondly, the Ombudsman was given the additional responsibility of investigating allegations of
infringements of human rights.113

Amendment 15: Change of Financial Year

This amendment was effected by Act, No. 10 of 1998. It was exclusively a technical amendment
which changed the government „s financial year from (1 July to 30 June), to 1 January to 31
December, of each year.

Amendment No 16: Land Reform – No Obligation on the State to pay Compensation for
Acquired Agricultural Land

This amendment came immediately after the 2000 referendum on a draft Constitution proposed by the
Constitutional Commission chaired by Justice Godfrey Chidyausiku. The referendum returned a No
verdict on the Draft Constitution. All the provisions of Amendment 16 had been part of the rejected
Draft Constitution.114

Amendment 16 was a radical departure from all previous provisions relating to the payment of
compensation for compulsorily acquired land. Before Amendment 16, constitutional provisions on
compensation had passed through two phases. The first phase was the original Lancaster House
position which obliged the state to pay adequate compensation for every piece of land it compulsorily
acquired. Adequate compensation was generally understood to be a „market rate on a willing buyer-
willing seller basis‟. The second phase was brought by Amendment 11 which removed the “adequate
compensation” basis and reduced the obligation of the state to paying “fair compensation” for

111
See new section 16(9b) inserted by Amendment 14
112
See Section 61 (3)
113
Section 108 (1)
114
Section 16A of the Constitution, introduced by Amendment 16 was Clause 57 of the Draft Constitution/

29
agricultural land. Fair compensation was understood to entail a level of compensation lower than the
market rate.

Amendment 16 took the issue of compensation for compulsorily acquired land to a third phase: it
removed the state‟s obligation to pay „fair compensation‟ for agricultural land. It placed the obligation
to pay compensation for agricultural land for resettlement on the “former colonial power”, leaving the
sate with no obligation at all. The amendment achieved this position by repealing sections 16(2) and
16(2a) which imposed the obligation to pay fair compensation and inserting a new section 16A. The
new section 16A is worth reproducing:

“16A Agricultural land acquired for resettlement

(1) In regard to the compulsory acquisition of agricultural land for the resettlement of
people in accordance with a programme of land reform, the following factors shall be
regarded as of ultimate and overriding importance-

(a) under colonial domination the people of Zimbabwe were un-justifiably

dispossessed of their land and other resources without compensation;

(b) the people consequently took up arms in order to regain their land and political
sovereignty, and this ultimately resulted in the Independence of Zimbabwe in
1980;

(c) the people of Zimbabwe must be enabled to reassert their rights and regain
ownership of their land;

and accordingly –

(i) the former colonial power has an obligation to pay compensation for
agricultural land compulsorily acquired for resettlement, through an
adequate fund established for the purpose; and

(ii) if the former colonial power fails to pay compensation through such a
fund, the Government of Zimbabwe has no obligation to pay
compensation for agricultural land compulsorily acquired for
resettlement.

(2) In view of the overriding considerations set out in subsection (1) where
agricultural land is acquired compulsorily for the resettlement of people in
accordance with a programme of land reform, the following factors shall be
taken into account in the assessment of any compensation that may be payable –

(a) the history of the ownership, use and occupation of the land;

(b) the price paid for the land when it was last acquired;

30
 (c) the cost or value of improvements on the land;

(d) the current use to which the land and any improvements on it are
being put;

(e) any investment which the State or the acquiring authority may have
made which improved or enhanced the value of the land and any
improvements on it;

(f) the resources available to the acquiring authority in implementing the

programme of land reform;

(g) any financial constraints that necessitate payment of compensation in

instalments over a period of time, and

(h) any other relevant factor that may be specified in an Act of

Parliament”.

The imposition of an obligation on the former colonial power has no legal significance as no state can
impose an obligation on another. It is merely political rhetoric playing the role of a preamble to the
key component of Amendment 16, namely that the state has no obligation to pay compensation for
agricultural land compulsorily acquired for resettlement. In Minister of Lands & Ors v Commercial
Farmers Union 2001 (2) ZLR 457 (S) Chidyausiku CJ stated the rationale of section 16A as follows:

“The mischief that s16A intended to deal with was lack of resources to carry on a land reform
or redistribution programme on the scale currently taking place… There simply was no
money to pay compensation in terms of s16 of the Constitution for the amount of land that
was required…” (at p.474B)

It is true that lack of resources was the main impediment to a land reform programme predicated on
paying some form of compensation for the land being compulsorily acquired. However, the
movement for an „adequate compensation‟ base to a „fair compensation‟ platform and then finally the
“no obligation to compensation” was purely political.

The position put in Amendment 16 had always been the political belief of the leading clique of the
nationalist elite around President Mugabe. It is President Mugabe who inserted a particular version of
Clause 57 into the Draft Constitution of the Constitutional Commission after describing the original
formulation as “stupid”. The Constitutional Commission itself, in its Draft Constitution submitted to
the President on 29 November 1999, had the following provisions.

“56 Right to property

(1) Everyone‟s right to own property and to use and enjoy their property must be
protected, although this right may be subordinated in the public interest.

31
 (2) The State or an authority authorized by an Act of Parliament may acquire property
compulsorily for public purposes or in the public interest –

(a) in accordance with fair procedures set out in an Act of Parliament; and

(b) subject to section fifty-seven, so long as compensation is paid that is just and
equitable in regard to its amount, timing and manner of payment.

(3) A law that extinguishes or diminishes anyone‟s vested or contingent right to be paid a
pension, gratuity or similar payment arising out of employment is to be regarded as a
law that acquires or authorizes the compulsory acquisition of that person‟s property.

57 Agricultural land acquired for resettlement

(1) In the assessment of any compensation that may be payable when agricultural land is
compulsorily acquired for the resettlement of people in accordance with a programme of
land reform, the following factors must be regarded as of ultimate and overriding
importance –

(a) before Independence the people of Zimbabwe were unjustifiably dispossessed of their
land and other resources without compensation;

(b) the people consequently took up arms in order to regain their land and political
sovereignty, and this ultimately resulted in the Independence of Zimbabwe in 1980;

(c) the former colonial power has effectively repudiated Zimbabwe‟s just claims for
reparations;

(d) the people of Zimbabwe must therefore be enabled to reassert their rights and regain
ownership of their land.

(2) In view of the overriding considerations set out in subsection (1), where agricultural land
is acquired compulsorily for the resettlement of people in accordance with a programme
of land reform, any compensation payable must reflect an equitable balance between the
public interest and the interests of those from whom the land is acquired.

(3) In the assessment of compensation for the compulsory acquisition of agricultural land,
regard must he had the following factors –

(a) the history of the ownership, use and occupation of the land;

(b) the price paid for the land when it was last acquired;

(c) the current use to which the land is put;

(d) any investment which the State or the acquiring authority may have made which
improved or enhanced the value of the land;

32
 (e) the resources available to the acquiring authority in implementing the programme of
land reform;

(f) any financial constraints that necessitate the payment of compensation in instalments
over a period of time; and

(g) any other relevant factor which may be specified in an Act of Parliament.

Despite similarities in the wording relating to references to the essence of liberation struggle, there is
a fundamental difference between the Constitutional Commission position and section 16A
(emanating from the Clause 57 as substituted by the President). The difference is this: Clause 57 of
the Constitutional Commission Draft imposed an obligation on the state to pay compensation for
compulsorily acquired land. All the rhetoric on the essence of the liberation struggle merely affected
the measure of compensation which in clause 57(2) was required to “reflect an equitable balance
between the public interest and the interests from whom the land is required.”

Put differently, references to the liberation struggle were mean to set the stage for defining the “public
interest” which had to be balanced against the private property rights and landowners. It was not
meant to extinguish the obligation of the state to pay compensation. Section 16A has an entirely
different agenda.

The references to the essence of the liberation struggle as meant to extinguish any obligation on the
state to pay compensation for compulsorily acquired land. The Constitutional Commission position
was sophisticated attempt to preserve the status quo on “fair compensation” while hoodwinking the
clique around President Mugabe into believing that a “radical” position on land had been
incorporated. The President and his clique were not cheated and the result was a new Clause 57 which
recorded the President‟s views on land. What we have in section 16A is President Mugabe‟s triumph
over moderate nationalists in ZANU (PF) who preferred a more internationally acceptable land clause
which preserved an obligation on the state to pay “fair compensation”.

Given the radical nature of Amendment 16, the Supreme Court under Chief Justice Gubbay wasted no
time in restricting its scope. In Commercial Farmers Union v Minister of Lands 2000(2) ZLR 469 (5),
the court focused on the expression “a programme of land reform” in section 16A(1). It held that it
was a “prior requisite for the compulsory acquisition of agricultural land for resettlement, that there
must be a programme of land reform”. (At p. 481B). it defined a “programme” as a definite plan or
scheme, in writing and in conformity with the law. It found what the government termed “Fast Track
Plan” to be not a “programme of land reform” as contemplated by section 16A(1). Accordingly, it
declared unlawful the land acquisition processes purportedly done in terms of the new section 16A
and which involved, as a modus operandi, “farm invasions” by groups of landless people, including
war veterans.

33
What is significant about this approach by the Supreme Court is that section 16A was made subject to
judicial scrutiny of any purported “land reform programme”. The Supreme Court gave itself power, in
the future, to determine whether or not a “land reform programme” existed for purposes of section
16A. With this power, it could neutralize section 16A by holding that no “land reform programme”
existed. Indeed, in this particular case, it held:

“It is declared that there is not an existence at the present time a programme of land reform as
that phrase is used in section 16A of the Constitution”. (At p.487F).

This approach meant that without satisfying the Supreme Court that a “programme of land reform”
existed, the radical position in section 16A counted for nothing. Inevitably, some white commercial
farmers seized the opportunity presented by this Supreme Court interpretation of section 16A and
challenged the acquisition of their farms on the basis that there was no programme of land reform.
Two cases heard as one appeal illustrate this. These are; Minister of Lands v Paliowas, Minister of
Lands v Wiggil.115 It is the Minister of Lands who appealed to the Supreme Court. One of the key
questions raised for the Supreme Court to decide as phrased as follows:

“Is a land reform programme a pre-requisite to the exercise by the (Minister) of his power to
acquire land in terms of the Constitution and the Land Acquisition Act?”

This question arose on appeal because in the Administrative Court, the white commercial farmers had
cited the Supreme Court case of CFU v Minister of Lands in support of their argument that the
acquisition of their farms was invalid because no land reform programme was in place. The
Administrative Court had ruled in their favour on the strength of CFU v Minister of Lands. In a 4 to 1
judgment, with the newly appointed Chidyausiku ACJ in the minority, the Supreme Court reaffirmed
its position in CFU v Minister of Lands and held that a land reform programme was a pre-requisite for
the compulsory acquisition of agricultural land for resettlement under section 16A of the Constitution.

In his minority judgment, Chidyausiku ACJ was of the view that a land reform programme was note
pre-requisite to compulsory acquisition of agricultural land. Any person familiar with the reason for
Amendment 16 which visited section 16A into the Constitution would be able to tell that the framers
of the Amendment never contemplated the interpretation now put on section 16A by the Supreme
Court. Chidyausiku ACJ was aware of the political intentions of the authors of Amendment 16.

In Minister of Lands & Others v CFU 2001(2) ZLR 457 (S), a newly constituted Supreme Court
presided over by Chidyausiku CJ (now confirmed as substantive Chief Justice) revisited the matter of
“a programme of land reform”. In an ingenious way, it accepted as a correct proposition of law that
such a programme was a pre-requisite to compulsory acquisition. However, it readily found, as a fact,

115
2001 (2) ZLR 22(S)

34
that such a programme was in existence. Accordingly, it declared lawful the compulsory acquisition
of the agricultural land in question.

Instructively, to assist the Supreme Court, the government produced a document entitled, “Land
Reform Resettlement Programme – Revised Phase II”. It asserted that this was a “land reform
programme.” Chidyausiku CJ noted that a “land reform programme” need not be “the best land
reform programme”.116

Anti-Corruption Commission
Amendment 16 also contained a provision on the Anti Corruption Commission. This was the first
time that the Constitution of Zimbabwe was establishing such a Commission. The amendment visited
a new section 108A which provided for the appointment, by the President, of a Commission
consisting of at least four and not more than nine members. The main function of the Commission
specified in the Constitution was “to combat corruption, theft, misappropriation, above of power and
other improprieties in the conduct of affairs in both the public and private sectors”. Other function
were left to an Act of Parliament. Similarly, the Commission‟s main powers were left to an Act of
Parliament. However, regarding the power of prosecution of persons for corruption, the Amendment
made it clear that this would be through the Attorney-General”.

Amendment 17: Reintroducing the Senate further Consolidation of Land Reforms and
Establishment of the Zimbabwe Electoral Commission (ZEC)
Amendment 17 came in 2005, shortly after the March 2005 elections for the sixth Parliament of
Zimbabwe in which ZANU (PF) regained a two-thirds majority. ZANU (PF) has lost its two-thirds
majority in the 2000 elections for the fifth Parliament. Amendment 16 was enacted by the fourth
Parliament of Zimbabwe shortly before its dissolution. There was no constitutional amendment for the
entire life of the fifth Parliament of Zimbabwe. The three main amendments brought by Amendment
17 require separate treatment.

Reintroducing the Senate

From 1980 to 1989, Zimbabwe has a bicameral legislative. This was in terms of the Lancaster House
Constitution which adopted a typical Westminster legislative structure. In 1989, the Senate was
abolished through Constitution of Zimbabwe Amendment (No.9). Thus from 1990 to 2005, there was
a unicameral legislature. Amendment 17 re-introduced the Senate, taking Zimbabwe back to the
bicameral status of 1980.

The reasons for the reintroduction of the Senate are not difficult to find. The emergency of a strong
opposition political party, in the form of the MDC, meant the loss of parliamentary seats by some
116
At p473G

35
prominent members of the ruling elite. This distabilised ZANU (PF) as the competition for the so-
called “safe seats” intensified. By 2005, it was clear that the MDC would continue to be a strong
opposition threatening to take more seats from ZANU (PF). The Senate was a convenient tool to
create more political space to compensate for the seats being taken up by the MDC. This idea was to
ensure that the number of ZANU (PF) leaders in Parliament was not diminished by the growing
strength of the opposition. Without re-introducing the Senate, ZANU (PF) would not have been able
to control the de-stabilising effects of internal competition for the fewer seats available to it.

The Amendment introduced a 66 member Senate. The 66 members were made up as follows: (i) 50
were elected directly by voters in fifty senatorial constituencies on the basis of five senators in each of
the country‟s ten provinces; (ii) 10 were Chiefs: the President and Vice-President of Council of Chiefs
were automatic and the remaining 8 were elected on the basis of one chief in each of eh eight non-
metropolitan provinces and (iii) six were directly appointed by the President. Except for a chief, a
senator was required to be 40 years.

At the time of this amendment, Parliament consisted of 150 members, 120 of whom were elected
directly by voters in 120 constituencies. This other 30 members were made up of (i) ten chiefs, (ii) 8
Provincial governors and (iii) 12 members directly appointed by the President. Amendment 17,
changed the name of what was then called “Parliament” to “House of Assembly”. The composition
remained at 150. However it made some changes to the make-up of the 30 non-constituency members.
It reduced the number of chiefs from 10 to 8 while increasing Provincial Governors from 8 to 10. This
was just cosmetic: the two chiefs being taken out of the House of Assembly were the President and
Vice-President of the Council of Chiefs who had already been accommodated in the new Senate.

Given that chiefs are appointed by the President in terms of section 111 of the Constitution,
Amendment 17 meant that the Resident was appointing, directly or indirectly, 46 members of
Parliament (30 in the House of Assembly and 16 in the Senate).

The re-introduction of the Senate necessitated a number of amendments to the Constitution to

accommodate its role and operations. Provisions were made for the calling of joint meetings of the
Senate and the House of Assembly by the President.117 Vice-Presidents, ministers, Deputy Ministers
and Provincial Governors were given the right to sit and speak in both Houses but only voting in the
House in which they were members.118

More fundamentally, schedule 4 of the Constitution was repealed and a new one substituted.
Schedule 4 deals with the procedure relating to Bills. In the new Schedule 4, it was provided that a
Bill may originate in either House except a Money Bill which may only originate in the House of
Assembly. Provisions were made for disagreements between the Senate and the House of Assembly.

117
See section 46 of the Constitution
118
See section 47 of the Constitution

36
The House of Assembly ultimately prevailed in the event of an unresolved disagreement between the
two Houses.

Further Consolidated of Land Reform

Amendment 17 introduced further substantial provisions on land reform. It added a new section 16B
which had three critical components. The first component related to ownership of compulsorily
acquired agricultural land. All agricultural land which had been compulsorily acquired by the date of
enactment of Amendment 17 was listed in the Constitution itself. For this purpose, Amendment 17
added a new Schedule 7 to the Constitution. It then vested ownership of all that land in the state.
Further, all land which was to be acquired after the date of enactment of Amendment 17 would be
owned by the state immediately on being compulsorily acquired. The Amendment sealed this position
of vesting acquired land in the state by providing as follows:

“… the person responsible under any law providing for the registration of title over land shall,
without further notice, effect the necessary endorsements upon any title deed and entries in
any register kept in terms of that law for the purpose of formally cancelling the title deed and
registering in the state title over the land”.119

The second component related to the question of compensation. The Amendment stated unequivocally
that “no compensation shall be payable” for all compulsorily acquired agricultural land, whether
acquired before or after the Amendment except for “any improvements effected – such land before
acquisition.120 In Amendment 16, the Constitution had merely stated that the state had no obligation to
pay compensation. Theoretically, the state had a discretion in the matter and could decide to pay
compensation. This is why section 16A (2) a mandatory list of factors to be taken into account in the
event of paying compensation, were provided. Amendment 17 took away the discretion of the state in
matters of compensation and closed the issue.

The third and final component was on the jurisdiction of the courts in land acquisition cases.
Amendment 17 introduced the position that the courts had no jurisdiction to entertain any challenge to
the compulsory acquisition of land. The courts only had jurisdiction to entertain challenges to the
amount of compensation payable for any improvements effected on the land before it was acquired.
Before Amendment 17, the position was governed by Amendment 11. In terms of Amendment 11, the
courts had jurisdiction to entertain a challenge to the acquisition itself. This is why for instance, in
CFU v Minister of Lands the Supreme Court could declare that any compulsory acquisition of land in
the absence of a “programme of land reform” was unlawful. On the other hand, the courts had no
jurisdiction to determine whether or not compensation provided by law was fair. Amendment 17
reversed the position, the courts were now allowed to entertain challenges to the amount of

119
Section 16B (4)
120
Section 16B(2)(b)

37
compensation payable for improvements but totally prohibited from entertaining challenges on the
question of the acquisition itself. In this respect, Amendment 17 was responding to what was
perceived by the politicians be the new dispensation on the land question. In the 1990s when
Amendment 11 was introduced, the key challenge appeared to have been the question of
compensation: white commercial farmers resisted compulsory acquisition via the device of
demanding “adequate” compensation. After 2000, having realized the ineffectiveness of this device,
white commercial farmers resorted to challenging the acquisition itself. Under the Gubbay bench, they
largely succeeded, Amendment 17 was an attack on the approach of the Gubbay bench.

With these three components on consolidating land reform, it is not surprising that Amendment 17 has
been the subject of spirited court challenges. A formidable challenge came in Mike Campbell (Pvt)
Ltd v Minister of National Security & Others121 The fist line Amendment 17 was invalid as it was
contrary to the “essential features” of the Constitution. It was argued that every constitution had its
essential features which could not be amended. Among the essential features of the Constitution of
Zimbabwe were the “rule of law” and “access to the courts”. Amendment 17 infringed these essential
features and was therefore invalid. The Supreme Court rejected the “essential features” doctrine and
held Amendment 17 lawful.

After the dismissal of their legal challenge by the Supreme Court, the applicants took their matter to
the SADC Tribunal. This was in Mike Campbell (Pvt) (Ltd) & Others v Republic of Zimbabwe.122The
main argument was that the Government of Zimbabwe had acted in breach of its obligations under the
SADC Treaty by enacting and implementing Amendment 17. The provision of the SADC Treaty
which was allegedly breached was Article 4(c) which, required SADC states to act in accordance with
the principles of “human rights, democracy and rule of law”. The breach was said to have occurred in
that Amendment 17‟s ousting of the jurisdiction of the courts was contrary to the rule of law. The
SADC Tribunal accepted this argument and held that Amendment 17 was in breach of Article 4(c) of
the SADC Treaty.

In Gramara (Pvt) Ltd & Another v Government of Zimbabwe & Others123 the applicants sought to
register the SADC Tribunal‟s decision in Mike Campbell for purposed of its enforcement in
Zimbabwe. The matter was resolved by applying the following legal position: a foreign judgment
cannot be recognized and enforced if it is contrary to public policy. The High Court held it to be
contrary to the public policy of Zimbabwe to register and enforce the SADC Tribunals judgment.
Patel J had this to say:

“The legality of the land reform programme was considered in Mike Campbell (Pvt) Ltd v
Minister of Lands. In essence, the Supreme Court confirmed the constitutionality of the

121
2008 (1) ZLR 27(S)
122
2008(2) ZLR 343 (SADC(T)
123
2010 (1) ZLR 59 (H)

38
 programme as implemented under section 16B of the Constitution…. the effect of registering
the Tribunal‟s judgment in Zimbabwe would be to challenge the decision of the Supreme
Court within its jurisdictional domain, and thereby undermining the authority of that court in
Zimbabwe. Any such result could surely not be contemplated as conforming with public
policy in Zimbabwe and must militate against the registration of the Tribunal‟s decision by
this court. … As already indicated, the applicants‟ lands were acquired by the Government in
terms of section 16B of the Constitution without any compensation payable in respect of the
land itself. If the Tribunal‟s judgment were to be registered by this court and subsequently
voluntarily complied with or enforced by court orders, the government would be required to
contravene and disregard what Parliament has specifically enacted in S16B of the
Constitution. this, in my view, simply cannot be countenanced as a matter of law, let alone as
an incident of public policy”124

Thus refusal to register the SADC Tribunal‟s judgment in the Mike Campbell case closed the chapter
in legal challenges to Amendment 17‟s provision on land reform.

Establishing the Zimbabwe Electoral Commission

Up to Amendment 17, there existed the Electoral Supervisory Commission (ESC), set up in terms of
section 61 of the Constitution. The role of the ESC was to supervise the registration of voters and the
conduct of elections.125 Amendment 17 established the Zimbabwe Electoral Commission (ZEC) in
place of the Electoral Supervisory Commission (ESC). There were two main changes. First, ZEC was
designed to be more independent then the ESC. Its chairperson was required to be a judge or a person
qualified to be appointed as a judge. He/she was to be appointed by the President after consultation
with the Judicial Service Commission. If the appointment of the chairperson was not consistent with
any recommendation of the Judicial Service Commission, Parliament has to be informed by the
President “as soon as practicable”. With the ESC, the Constitution merely stated that the “chairman
and two other members [shall] be appointed by the President after consultation with the Judicial
Service Commission”. Two other members of the ESC were appointed after consultation with the
Speaker. ZEC had six other members apart from the Chairperson. Three of the six were to be women.
All the six, were to be appointed from a list of nine nominees submitted to the President by the
Committee on Standing Rules and Orders. Secondly, unlike the ESC which dealt only with the
supervision of the registration of voters and the conduct of elections, ZEC had to “prepare for rolls
and registers; design, print and distribute ballot papers and conduct voter education.

Additional functions for the Judicial Service Commission

124
At p.75-76
125
See old section 61(3)

39
Amendment 17 also sought to enhance the functions of the Judicial Service Commission by
empowering Parliament to confer on the Commission “functions in connection with the employment,
discipline and conditions of service of such officers and persons employed” in the courts.

It is this amendment which set the stage for the Judicial Service Commission to be an employer on the
same level as the Public Service Commission.

Amendment 18: Harmonised Elections, Increasing Membership of Parliament and Establishing

Human Rights Commission
This amendment was the first to be jointly supported by ZANU (PF) and the MDC. It came out of
secret negotiations between the two parties which were mediated by President Mbeki of South Africa.
Its main focus was on the 2008 presidential election. The following were its main provisions:

Harmonising elections

Before Amendment 18, the President‟s term of office was six years while that of Parliament was five
years. This meant that presidential and parliamentary elections were held separately. Amendment 18
reduced the presidential term from 6 to5 years and specifically made the term of office of the
President to be concurrent with that of Parliament. This was done by repealing section 29(1) which
provided as follows:

“The term of office of the President shall be a period of six years…”

A new section 29(1) was substituted which read, in part as follows:

“The term of office of the President shall be a period of five years concurrent with the life of
Parliament…”

To ensure that elections for the President were held on the same day as election to Parliament,
Amendment 18 repealed section 28 (3) and substituted the following provision:

“28(3) An election to the office of President shall take place…(a) on the day or days fixed in
a proclamation in terms of section 58(1) as the day or days on which elections are to be held
for the purpose of electing members of Parliament and members of the governing bodies of
local authorities.”

Under the system of a separate election to the office of President, a vacancy to the office by reason of
death or resignation or removal from office was filled by a fresh election of a new President within
ninety (90) days of the vacancy.126 The President elected in the fresh election started a new six year
term. Amendment 18 changed this position and took away the right of the electorate to elect a new
President whenever a vacancy arose. Instead, it introduced the concept of an electoral college
consisting of members of the Senate and the House of Assembly sitting jointly. 127 The electoral

126
See old section 28(3)(b)
127
See section 28(3)(b)

40
college fills any vacancy in the office of President by electing a new President to serve the unexpired
term of the President.

It is simplistic to justify Amendment 18‟s departure from a direct election of the President to fill a
vacancy and opting for a electoral college on the basis of harmonization of elections. It is conceivable
to hold a direct by-election in which the person elected President only serves the unexpired term of
his/her predecessor. One example of this position is the Vice-President server the entire expired term
as is the position in Malawi. In opting for an electoral college, the framers of Amendment 18 were
acceding to the preference of ZANU(PF) which, at the time, had deep anxieties about the health of
President Mugabe and did not believe it had credible successors who could defeat an opposition
candidate in a direct election called within 90 days of his death. ZANU(PF) was confident that it
would, at any time in the foreseeable future, be able to dominate the electoral college given the
number of direct and indirect Presidential appointees in the Senate.

The concurrence of the term of office of the President with that of Parliament for purposes of
harmonized elections had to significant consequences which Amendment 18 fully spelt out. The first
was the commencement of the term of Parliament. Amendment 18 repealed section 63(4) and
substituted a clear provision in which the term of Parliament was deemed to begin on the same day
that the term of the President was also beginning. The provision read:

“Parliament, unless sooner dissolved, shall last for five years, which period shall be deemed
to commence on the day when the person elected President enters office in terms of section
28(5) after an election referred to in section 28(3)(A), and shall then stand dissolved:

Provided that, where the period referred to in this subsection is extended under subsection (5)
or (6), Parliament, unless sooner dissolved, shall stand dissolved on the expiration of that
extended period”.

The second consequence is that whenever the President dissolves Parliament, his/her term of office
also ends. If the life of Parliament is extended under section 63(5) or (6), the President‟s term is also
extended. However, despite the end of his term, the President is entitled to remain in office until the
person elected as President at the next election of President enters office.128

Increasing membership of Parliament

Amendment 18 increased the membership of the Senate from 66 to 93 and that of the House of
Assembly from 150 to 210. The major change in respect of the House of Assembly was that of
abolishing non-constituency seats occupied by Presidential appointees, thus making the lower house a
wholly elected chamber. The 93 Senators were made up as follows: (i) 60 elected in 60 senatorial
constituencies on the basis of six senators per province (this was an increase of 10); (ii) 18 Chiefs

128
See section 29(1) substituted by Amendment 18

41
(this was an increase of 10); (iii) 10 Provincial Governors and (iv) 5 appointed by the President (a
decrease of 1). Amendment 18 therefore reduced direct and indirect Presidential appointees in
Parliament from 46 to 33.

Abolishing the Delimitation Commission and expanding the Scope of Functions of ZEC

Amendment 17 had left intact the Delimitation Commission with its specific task of determining
constituency boundaries. Amendment 18 abolished the Delimitation Commission and transferred all
its functions to ZEC. ZEC was given the additional function of determining constituency and ward
boundaries. This was a huge task given the concept of harmonized elections. The boundaries related
to the 210 House of Assembly seats, 60 senatorial seats and several hundred wards for local
authorities. The exact number of wards for each local authority was to be determined by ZEC. 129

The delimitation process, inserted as section 61A by Amendment 18, differ from the process in the
old section 60. There was a new requirement for the Commission to submit to the President a
“Preliminary report” which the President had to cause to be laid before Parliament within seven days
after receiving it. Under the old position, the Delimitation Commission could simply submit its report
to the President who, in turn, could refer back to the Commission “for its further consideration and
final decision any matter arising out of its report”.130 If the President had no issues arising from the
report, he/she could treat it as the Commission‟s final report. There was no role for Parliament. The
requirement, put by Amendment 18 for the preliminary report to be laid before Parliament meant the
latter could debate it and raise issues for consideration by ZEC. However, the channel of
communication back to ZEC was the President. Section 61A (9) said:

“No earlier than seven days after the President has caused the preliminary report of the
Zimbabwe Electoral Commission to be laid before Parliament in terms of subsection (8), the
President may refer back to the Commission for its further consideration and final decision
any matter arising out of its report”.

The insistence that the President could only communicate with ZEC no earlier than seven days after
the report has been laid before Parliament clearly implied an obligation on the President to transmit to
ZEC any concerns raised by Parliament.

Under the old law, it was a constitutional requirement to have a delimitation at five yearly intervals.131
Amendment 18 changed this by dropping the requirements of five-yearly intervals. The President
would determine whether or not to notify ZEC to undertake a new delimitation, otherwise the existing
boundaries can be used for any “subsequent general election”.132

129
See section 61A (2)
130
See old section 60(6)
131
See Old section 59(4)
132
See section 61A (11)

42
Establishment of the Zimbabwe Human Rights Commission

Amendment 18 established the Zimbabwe Human Rights Commission consisting of nine members: a
chairperson and eight other members, at least four of whom were required to be women. The
chairperson would be appointed by the President after consultation with two bodies: the Judicial
Service Commission and the Committee on Standing Rules and Orders and only legal practitioners of
at least five years, standing qualified for appointment as a chairperson. The other eight members were
to be appointed by the President from a list of sixteen members submitted by the Committee on
Standing Rules and Orders.

The functions of the Commission were standard: to promote awareness of and respect for human
rights and freedoms and to monitor and assess the observance of human rights in the country. Its
specific powers regarding conducting investigations and providing appropriate redress for human
rights violations were left to an Act of Parliament.

Giving the Ambudsman a new name – Public Protector

Amendment 18 renamed the Ombudsman, the Public Protector. The Ombudsman had been part of the
Zimbabwean Constitution from 1980. Apart from the change of name, there was a recognition of the
fact that the Public Protector‟s functions would occasionally overlap with those of the newly created
Zimbabwe Human Rights Commission. Amendment 18 therefore inserted the following instructive
provisions on the relationship between the Public Protector and the Zimbabwe Human Rights
Commission:

“108B(7) The Zimbabwe Human Rights Commission shall have power –

(a) to take over and continue any investigations that has been instituted by the Public
Protector in terms of section 108(1), where it determines that the dominant question in
issue involves a matter pertinent to its function… or

(b) to refer to the Public Protector for investigation in terms of section 108(1) any matter in
respect of which it determines that the dominant question in issue involves a matter
pertinent to the functions of Public Protector”.

Creating the office of Deputy Chief Justice

Amendment 18 created the office of a Deputy Chief Justice. The Deputy Chief Justice would „act as
Chief Justice whenever the office of Chief Justice is vacant or the Chief Justice is absent from
Zimbabwe or is unable to perform the functions of his office by reason of illness or any other cause”.
Before this amendment, the appointment of an Acting Chief Justice in the circumstances such as those
indicated above was shrouded in mystery but ultimately lay with the President. For example, in 2001,
when Chief Justice Gubbay purportedly went on “leave pending retirement” the President overlooked

43
all the serving Judges of the Supreme Court and appointed Justice Chidyausiku, Judge President of
the High Court.

Sharing certain specific constitutional roles between the House of Assembly and the Senate

As soon as the Senate was re-introduced by Amendment 17, it became clear that it would be either
onerous or impracticable for some roles of Parliament in the Constitution to be performed by both
Houses. For example, where the Constitution required the President to “inform Parliament as soon as
practicable” it was onerous for this to involve both Houses. Amendment 18 divided the various roles
of this nature between the Senate and the House of Assembly. Thus, all matters requiring Parliament
to be informed whenever an appointment by the President was inconsistent with the recommendations
of a body he/she was obliged to consult were referred to the Senate. Thus, the Senate represented in
Parliament in debating Presidential appointments. On the other hand, the House of Assembly was
allocated the more political responsibilities such as approving the President‟s declaration of a state of
public emergency and authorizing expenditure from the consolidated Revenue Fund.

Amendment 19: “Power Sharing” and the Inclusive Government

The amendment is mainly known for setting up and regulating the operations of what came to be
known as the “Inclusive Government”. It may also be described as the “Power Sharing” Amendment
in difference to the purported raison dėtre of the Inclusive Government. Others prefer to call it the
“Global Political Agreement (GPA)” Amendment because its key provisions were part of the terms of
the agreement entered into between ZANU (PF) and the two formations of the MDC on 15 September
2008. The background to Amendment 19 is exclusively found in the disputed 2008 presidential
election.

In the March 2008 presidential election, no candidate obtained the requisite majority (50% plus one)
to be declared President. A second election between the highest candidate (Morgan Tsvangirai) and
the second highest (President Mugabe) was ordered. Morgan Tsvangirai “withdrew” from this second
election citing massive violence and intimidation of his supporters. The election went ahead and
President Mugabe was declared duly elected. He took the oath of office on 29 June 2008. The MDC
rejected this result. SADC, which before the elections had appointed President Mbeki of South Africa
in March 2007 to mediate in the “Zimbabwean crisis”, urged President Mugabe to negotiate with the
opposition and form a government of national unity. The African Union endorsed the SADC position
in July 2008. With his legitimacy questioned, President Mugabe had no option but to enter into
serious negotiations with Morgan Tsvangirai and the MDC. President Mbeki, the mediator in the
crisis, intensified his mediation efforts and on 15 September 2008, an agreement was signed. It is that
agreement which is popularly referred to as the “Global Political Agreement” (GPA). Amendment 19
sprang directly from the GPA.

44
Amendment 19 has two parts. The first part relates to amendments which are permanent, in the sense
that they outlive the GPA and are like any other amendments to the Constitution. The second part are
amendments which exist to implement the GPA and will automatically lapse when the GPA comes to
an end. This second part relates to amendments creating the “Inclusive Government”.

Amendments which are permanent

(i) Citizenship

Amendment 19 substituted new provisions on citizenship and repealed the whole of Chapter 11 of the
Constitution. Apart from adding a section on the duties of citizens, the substituted provisions charged
nothing: the framers of Amendment 19 claimed that the new provisions were a “better drafting” than
the existing provisions.

(i) Rule of Law

The concept of the “rule of law” was inserted into the Constitution by adding the following provision
in section 18:

“(1a) Every public officer has a duty towards every person in Zimbabwe to exercise his or her
functions as a public officer in accordance with the law and to observe and uphold the rule of
law”.

The implications of this provision are immense. Given that there is no fixed conception of the rule of
law, the courts will be called upon to give meaning to the concept.

(ii) Right to Vote

Amendment 19 expanded the Bill of rights by adding the right to vote in section 23A. The right to
vote is expressed as follows:

“23A(2) subject to this Constitution, every adult Zimbabwean citizen shall have the right –

(a) To vote in referendum and elections for any legislative body established under
this Constitution and to do so in secret and

(b) To stand for public office and, if elected, to hold office”.

(iii) Committee on Standing Rules and Orders

Before Amendment 19, the Constitution merely provided that “the appointment, membership and
functions” of the Committee on Standing Rules and Orders was to be determined by Standing Orders.
Amendment 19 repealed this provision and made specific provision for the membership of the
Committee. The specified membership consists of the Speaker, the President of the Senate, the
Deputy Speaker, the Deputy President of the Senate, the Leader of Government Business, the Leader

45
of the opposition, the Chief Whip of each political party represented in Parliament and members
elected by each House. There is no precise size of the Committee. The Speaker is designated as the
Chairperson with the President of the Senate as the Deputy Chairperson.

(iv) Independent Commissions

Amendment substituted new provisions on the Zimbabwe Electoral Commission, the Zimbabwe Anti-
Corruption Commission and the Zimbabwe Human Rights Commission. These Commissions are put
under one new Chapter XA. A new Commission was added: the Zimbabwe Media Commission.

Amendments which are transitional

These aspects of Amendment 19 only remain in force during the subsistence of the Global Political
Agreement, referred to in the Amendment as the “Interparty Political Agreement”. However, even if
the agreement between the political parties were to remain, these aspects of amendment 19 will
automatically lapse at the end of the term of office of the President.

The relevant amendments are:

(i) The executive authority of Zimbabwe, for the duration of the Inclusive Government, shall
vest in, and be shared among the President, the Prime Minister and the Cabinet.

(ii) There are new offices of Prime Minister and two Deputy Prime Ministers

(iii) In addition to the Cabinet, there is created a “Council of Ministers” which assesses the
implementation of Cabinet decisions.

(iv) The President and Prime Minister are mentioned by names.

(v) Cabinet posts are shared among the three political parties.

(vi) The President is required to act either “after consultations” or “in consultations” with the
Prime Minister. These expressions are defined. “After consultation” means the President is
not bound. “In consultation” means the President must secure “the agreement or consent” of
the Prime Minister.

CONCLUDING COMMENTS
This survey has demonstrated some very clear features about the constitution amendment process in
Zimbabwe. It has largely been an affair of consolidating power in the hands of the ruling elite. This
was achieved by a constitutional scheme that strengthened the powers of the executive against the
other two arms of the state and by giving constitutional status to strong views held by the executive.
The latter point is evidenced by a series of amendments meant to reverse decisions of the Supreme
Court merely to impose the strong views of the executive. In the executive presidence, the framers

46
found an effective devise to undermine traditional checks and balances utilised by most democratic
government systems.

It is striking that these amendments were not subjected to public debate. The mere say so of the
executive was sufficient to justify fundamental political changes. As a consequences, political
intolerance became a driving force in constitutional reform. This is a recipe for disaster: a
constitution must be able to outline the political emotions of the day. The surest way of achieving this
is to subject constitution-making to an open and broad people-centred process transcending partisan
political interests. This is the lesson to be learnt from the haphazard and partisan constitution-making
process of the period examined in this article.

The Constitutional-Making Process in Zimbabwe133

Introduction
In 1999 Zimbabwe was at the centre of a historic Constitution-making process from whatever angle
one looked at it. There were two main sides to the Constitutional debate in the country. On the one
hand, were those who vigorously support the government sanctioned process led by the Constitutional
Commission chaired by Justice Godfrey Chidyausiku. On the other hand, were those who opposed
the process and embraced the arguments put forward by the National Constitutional Assembly (NCA).
It is important to revisit the debate surrounding questions of the process of Constitution-making in
Zimbabwe with a view to deriving some insights for the way forward.

It has been aptly ob served: “The making of a new Constitution for a country is a mammoth task.
Constitutions do not fall from Heaven. They are not products of legal genius. A Constitution is a
political animal: it embraces the key aspirations of a people in the area of governance and in mapping
the relationship between the individual person and the state….

It is very clear that from its very nature as a framework defining the scope of governmental powers
and functions, a Constitution has to be drawn by the governed.”134 These inherent features of the

133
L Madhuku, “Constitution-making Process in Zimbabwe: The Way Forward,” MOTO
Magazine, July 1999, p 20

134
L Madhuku, The Constitutional Commission vis-à-vis the Commissions of Enquiry Act,” The
Agenda Vol 2,No.1,1999,p3

47
Constitution ought to be the decisive factors in determining an appropriate framework for
Constitution-making. It is submitted that there are at least three basic principles which any
Constitution-making process which claims to be democratic should adhere to. Firstly, it should m be
broad based in the sense that as many people as practicable have an opportunity to participate in it by
way of making inputs an d debating options. Secondly, the process should be free from domination of
government of the day nor should it be unnecessarily controlled by the ruling political party or
coalition political parties. Thirdly, the final print of the proposed Constitution derived from the broad
process of discussion should be approved by the people in a referendum. It is on the basis of these
principles that one should analyse Zimbabwe‟s Constitution-making process.

Various Options For Zimbabwe

Invariably, Constitutions are purportedly based on the will of the people. The sovereignty of the
people is invoked to confer moral authority on the Constitution and to explain its binding force as the
supreme law of the land. Striking illustrations of this deference of the people are the preambles to
most Constitutions which are open with the proclamation. “We the People.” For instance, the
preamble to the US Constitution states:
“We the people of the United States, in order to form a more perfect union, establish justice,
insure domestic tranquility… do ordain and establish this Constitution for the United States of
America.”
The preamble of the Constitution of Ghana (1992) states:
“We the people of Ghana, in exercise of our natural and inalienable to establish frame work of
government which shall secure for ourselves an d posterity, the blessings of liberty, equality
of opportunity an d prosperity….do hereby adopt, enact and give to ourselves this
Constitution.”
The preamble to the South African Constitution (1996) open thus: “We, the people of South Africa,
recognize the in justices of our past ….”
The 1995 Uganda Constitution‟s preamble opens as follows: “We, the people of Uganda: recalling
our history which has been characterized by political and Constitutional instability…”
The Malawian Constitution (1994) opens as follows:
“The people of Malawi, recognizing the santity of human life and the unity of all mankind;
guided by their private consciences and collective wisdom, seeking to guarantee the welfare
and development of all the people of Malawi, national harmony and peaceful international
relations; desirous of creating a Constitutional order in the Republic of Malawi based on the
need for an open, democratic and accountable government: hereby adopt the following as the
Constitution of the Republic of Malawi.”
Although the concept of “We the people” seems to be almost universally acknowledged, it is vague
and misleading as it does not prescribe the nature of participation of the people in the Constitution-

48
making process. In South Africa, there was no referendum to endorse the Constitution, but the
preamble speaks in the first person plural of “We the people of South Africa.” Similarly, in Malawi,
the preamble says the people of Malawi “hereby adopt” the Constitution even though there was no
referendum in which the people were asked to adopt the Constitution. In the United States, it is
common cause that only a small group of people was involved in the writing of the America
Constitution in Philadelphia. Even where a Constitution is imposed by a clearly illegitimate
authority, it is common for the political authorities to claim a derivation of the Constitution from “the
people.”

Given this malleable con caption of “we, the people,” it is not surprising that Zimbabwe had to be
faced with various options in its bid to make a new Constitution. The situation was complicated by the
fact that the Constitution reform process was being undertaken by the kind of political landscape or
circumstance which traditionally warrant Constitutional change. Historically, Constitutional change
have come into being as a result of obvious changes in the political scene either: (i) on the attainment
of independence by a former colony; or (ii) as a result of political revolution, such as the French
Revolution of 1789 or the Socialist Revolution in Russia in 1917; or (iii) where there is a change of
government whether through an election or a military coup. In all these circumstances, the concept of
“we the people” is defined by those who have taken over political power and the rest of society
usually accepts the Constitution either out of realizing the impossibility of changing the political
result or as a quid pro quo for peace and stability.

Zimbabwe had the following options:

1. The appointment of a Presidential Commission in terms of existing law whose terms of
reference and modus operandi were to be determined by the government of the day.
2. The setting up of a special Commission by Parliament and not by President or cabinet as in 1
above.
3. The election of a special Constitutional Assembly to write the Constitution. The elections
could either be on a constituency winner-take-all system or on a system of proportional
representation.
4. The convening of an all-stakeholders conference which would agree on a Constitution-
making process. In particular, the conference would specify an appropriate legal framework
for the process. “All stakeholders” has the following components: Parliament, political
parties and civic society (trade unions, churches/religious groups, women‟s groups, youths
and student, human rights organizations, academics and so on).
5. The parliamentary route where Parliament would merely spell out a process for the executive
to follow.

49
 6. The use of the existing Constitution which, in s 52 allows Parliament to amend the
Constitution. Under this approach, any inputs by civic society would to be taken into account
during the relevant stages of the law-making process in Zimbabwe, such as by utilizing the
30-day-notice of intention to amend the Constitution required by s 52(2).
7. A Zanu-PF dominated process where the party‟s central committee would adopt a draft
Constitution for presentation to the government. The government would in turn, invite for
some inputs from the general public before sending the draft to Parliament.
8. The dissolution of the present government and the creation of a government of national unity
which would then formulate an approach to Constitution making.

Ultimately, OPTION 1 was preferred, as it was the government position while OPTION 4, which was
the NCA‟s preferred approach, was targeted for special attacks by the government spokespersons.
OPTION 8 was dismissed as being ridiculous. OPTION 5 entered the scene when Dzikamai
Mavhaire, MP moved a motion in Parliament calling upon the executive to put in motion a
Constitutional reform exercise: However, although the motion was debated for some time in
Parliament, it was not clear what then became of it. The other options were simply not pursued.

Critique of the Chosen Approach

The Government preferred option 1 and President Mugabe appointed a 396 member Constitutional
Review Commission in terms of the Commissions of Inquiry Act (Chapter 10:07). The Commission
was appointed through Proclamation 6 of 1999 (S1 138A of 1999). The proclamation acknowledged
the following aspects that: (i) the people of Zimbabwe are desirous of producing their own
Constitution reflecting their own Constitution reflecting their own values and aspirations; (ii) the new
Constitution had to promote peace, order, prosperity, good governance, democratic values, social
justice and fundamental human rights; (iii) the coming up with a new Constitution required among
other things, a review of the current Constitution with a view to identifying its shortcomings; (iv) the
Constitution making process should encourage extensive and exhaustive debate by the people; (v) that
all stakeholders had to be encompassed in the Commission; and (vi) the end product should be “a
generally acceptable Constitution” for Zimbabwe.

While the above aspects appear to be a reasonable reflection of the main issues in the Constitutional
reform debate, it is striking that the framework adopted was inherently incapable of achieving any of
those ideals. The main criticism against the option preferred by the government centred on the view
that the use of the Commissions of Inquiry Act was a fundamental negation of Constitutionalism.
First, the Act was a fundamental negation of Constitutionalism. First, the Act gives the President the
sole prerogative to set up a commission, appoint the commissioners, decide their terms of reference,

50
alter or revoke their appointment and so on. As already remarked, “the Commission of Enquiry Act
makes the President the author of the Constitutional Review and arrogates to him powers above the
people in deciding how the Constitutional Review Process should proceed. This is contrary to the
principle that Constitutions are made by, and for the people”. The actual composition of the
commission was a far cry from the assertion in the preamble of the proclamation that all stakeholders
had to be encompassed in the commission. Key stakeholders such as opposition political parties,
trade unions, youths, churches and women‟s groups were not adequately represented in the
commission. Secondly, “the findings of a commission set-up under the Act have to be reported to the
President who has the power to reject the recommendations in toto. It matters not that those
recommendations may be based on the faithful reflection of the views of the people consulted. What
the Act is concerned with is the supremacy of the President over any commission he has appointed”. 3
This overlordship of the President was underscored in the proclamation by para (g), which stated: “I
direct the said commissioners to compile a report of their findings after the said inquiry, which report
must be submitted to me by not later than the 30th day of November, 1999 although they will be
liberty to report their proceedings to me from time to time”. In their terms of reference, the
proclamation directed the commissioners to “make general and specific recommendations on all the
provisions they may consider to be necessary – for consideration by me…”

Thirdly, there was no provision for a referendum. Given the one of the key issues in the
Constitutional debate was that the people of Zimbabwe should be able to approve any final
Constitution for the country, this uncertainty over whether or not a referendum was to be held,
made the whole process undesirable. Fourthly, the time framework set for the process was
unrealistic. The commission was expected to finish its work within a period of six months. Such
a time frame raised serious doubts about the intentions of the Government over the whole process
as it was clear that no exhaustive debate and no genuine popular participation in Constitution
making was possible within that short period. Finally, the Commissions of Inquiry Act allowed
the government to institute a partisan Constitution making process by packing the commission
with ruling party (ZANU PF) members and symphathisers and ensuring that through the
President‟s final say on the Constitution, the interests of the ruling party would prevail over those
of the generality of the people.
On its part, the Government defended the framework it had adopted by criticizing the option put
forward by the NCA. The call by the NCA for an all stakeholders conference to agree on the
process was dismissed as nonsensical. The Government‟s main argument was that the NCA
being an unelected body of persons, neither had the legitimacy nor the mandate to “dictate” a
process for Constitutional reform. However, this criticism was misplaced. The NCA represented

51
the views of a substantial number of ordinary Zimbabweans. Constitution-making is about the
people setting out structures and one need not be elected to articulate a view about the way an
issue of public interest should be pursued. The key oft-repeated statements of the Tom Paine are
worth noting: “A Constitution is a thing antecedent to a government, and a government is only the
creature of a Constitution…. A Constitution is not the act of a government, but of a people
constituting a government, and government without a Constitution, is power without a right.”

It must follow from the very nature of the Constitution that when ordinary citizens organize
themselves in some form and agitate for Constitutional reform, it is not sufficient to raise their
unelected nature as a basis for rejecting their views. What should matter, in principle, is that the
views on any person on matters of Constitution making ought to be respected and a fortiori the
views of a substantial number of persons.
Some Comparative Insights
The Government‟s determination to proceed in terms of the Commissions of Inquiry Act appears
to have been influenced by the inarticulate premise that Constitution-making in many countries is
generally a government-dominated affair except in cases of political transitions where the
government of the day had lost legitimacy such as was the case in South Africa, Namibia and
Malawi. Even in the latter situation, popular participation in the sense of involving the ordinary
people in Constitution-making has few clear precedents.In South Africa, although there was no
popular participation in the sense of involving ordinary persons via civic society in the
formulation of the Constitution, the process did involve almost all the political parties and
organizations in South Africa.4 It started with a conference known as the Convention for a
Democratic South Africa (CODESA) which opened in December 1991 and was attended by the
broadest representation of the country‟s political leaders. CODESA established working groups
to debate various issues, one of which was the process of Constitution-making. It was in Working
Group 2 that the question of process was debated by the political parties and the terms of
reference of that working group are worth reproducing in order to make the point that the process
of Constitution-making ought to be debated. These read in part: “In respect of a Constitution-
making process: specifically, but without vitiating the generality of the objective, to consider: to
make recommendations to CODESA regarding the process through which a new Constitution
may be formulated;
(a) how far the process can be taken by CODESA itself;
(b) at what stage a special Constitution-making body, if any should be constituted;
(c) the role of referenda, if any, in the Constitution-making process; and
(d) Legislative and administrative steps that may be required to reinforce the Constitution making
process.”5

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CODESA failed due to the differences which emerged over the process mainly between the
apartheid government and the ANC. The government favoured a process where CODESA itself
would draft the Constitution after which elections will be held while the ANC preferred a two-
stage process involving the democratic election of a Constitution-making body (Stage 1) which
would in turn write the Constitution (Stage 2). The failure of CODESA led to renewed
negotiations between the key players leading to the convening of another conference of political
parties and organizations called the Multi-Party Negotiating Process (MPNP). The MPNP had
more participants than CODESA; the latter had 19 political parties and organizations while the
MPNP had 26. The MPNP eventually agreed on the process of Constitution-making which
involved a lot of compromises on the part of all those involved. While the ANC had its two-stage
process adopted, that is, the election of a Constitution making body first to be followed by that
body in turn writing the Constitution, it had to drop its insistence on a referendum. In return for
accepting the ANC‟s two-stage process, the apartheid government won on federalism and the
adoption of the Constitution by the Constituent Assembly.

The MPNP finally produced an interim Constitution (the 1993 South African Interim
Constitution) under which the April 1994 elections were held. The National Assembly which was
elected had two functions: Constitution-writing and being the legislature of the first five years.
The agreed time frame for Constitution writing was two years and the final version of the
Constitution had to be endorsed by the Constitutional Court.6 An Important feature of the South
African process is the question of the involvement of the key political players in determining the
process of Constitution making.
There are other useful insights from elsewhere. In Namibia, while the political context was
certainly different, it is noteworthy, however, that the Constitution was drafted by an elected
Constituent Assembly whose mandate and modus operandi had been agreed to by a 1982
conference involving all key political players in the country. The process had been agreed and
contained in the so-called “Principles concerning Constituent Assembly and Constitution for an
Independent Namibia.”7
The Malawian experience brings out the involvement of “unelected” groupings of civil society in
Constitution-making .8 In the second half of 1992, a group of Malawians formed the Public
Affairs Committee (PAC) which brought together lawyers, business organizations, religious
bodies and individuals with a mission to campaign against the one-party state and to push for a
new Constitution. President Banda, under pressure, responded by appointing a

Presidential Committee on Dialogue (PCD) which brought together the government and
representatives of opposition political parties and civil society. The process culminated in the
holding of a referendum on the one-party state in June 1993 and with the results of the

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referendum showing a rejection of the one-party state, the government had to agree to the setting
up of a National Consultative Council (NCC) which had representatives of political parties and
which oversaw the drafting of the new Constitution by an unelected assembly of various people
drawn from political parties and civil society. The draft Constitution which came out of the
process was passed by the Banda parliament and elections were held in terms of it on 17 may
1994. The Constitution had a one year life and had to be confirmed by the new National
Assembly before being treated as final. The National Assembly made amendments to the
provisional Constitution and adopted the final text on 11 May 1995. This Malawian experience
demonstrates that where there is a national consensus, it matters not that groups pushing for
Constitutional change have not been elected.

The experiences of Uganda, Ghana and Zambia show that Constitution-making is inherently
subject to the whims of the ruling politicians unless the opposition forces are strong enough to
stop that domination. In Uganda, Yoweri Museveni‟s National Resistance Movement (NRM)
heavily dominated the Constitution-making process. In response to calls for Constitutional
reform, Museveni appointed a Constitutional Commission whose members were appointed by the
President.9 The preference of the Museveni Government was for the product of the Constitutional
Commission to be simply referred to the government‟s legislative structures which included the
National Resistance Army Council (NRAC) for promulgation. When this was heavily criticized,
the Museveni Government abandoned the idea and agreed to establish a special Constituent
Assembly to debate and promulgate the Constitution. However, the composition was problematic
in that the legislation creating the Assembly allowed the President to appoint 10 people of his or
her choice and ten other members were from the National Resistance Army. The chairperson and
deputy chairperson of the Assembly were to be elected from a list of not more than five nominees
presented to the Assembly by the President. The following extracts from a comment on the
Ugandan process show how the government used every trick to dominate the process:
“It is also clear that under the NRM tenure many of the tactics of its predecessors have been
employed to circumvent and even undermine respect for the Constitutional mediation of power,
even in the midst of initiating reforms that would alter the prevailing perception that a
Constitution is not worth the paper on which it is written…. At the centre of all these
machinations, and underscoring the fragility of the transition to democratic rule in Uganda, is
Yoweri Museveni.”10
In Ghana, Jerry Rawlings came to power through a military coup in 1981 and established the
Government of the Provisional National Defence Council (PNDC).11 Although the coup appears
to have been popular, there were calls by civic groups and individuals for a return to civilian rule
and this called into issue the question of Constitutional reforms. The PNDC had established as
early as 1982, a National Commission for Democracy (NCD) which in 1991 produced a report

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which embodied various views on a new Constitution. The Government reacted to the report by
setting up a Committee of Experts to make proposals for a draft Constitution but the law already
prejudged the process by enjoining the committee to provide for certain positions such as an
executive president. On receipt of the draft Constitution by the committee of experts, the
government established a 260 member Consultative Assembly to debate the Constitution and
produce a draft for a referendum. Although some members of the Assembly were directly elected
by district an assembly, a substantial number was elected by “identifiable groups” most of whom
were sympathetic to the PNDC and up to 22 were directly appointed by the PNDC. The
Assembly, however, submitted a draft Constitution to the PNDC in March 1992 and this was
submitted to a national referendum which overwhelmingly approved it. The Ghanaian experience
shows how the government can dominate a process while still creating the impression of popular
participation through a Constituent Assembly and Referendum.
The Zambian experience under Chiluba is most extreme in terms of dominance. The Chiluba
government appointed a Commission to review the Constitution in terms of the Inquiries Act
(Chapter 181). Most members of the commission were directly appointed by the President while
the other were appointed by him on the recommendations of some organizations. When the
commission submitted its draft, a number of its key recommendations were rejected by the
Government.12 The government substantially amended the draft and rejected calls for a
referendum and had the Constitution promulgated by a government dominated National
Assembly.
The lessons to be drawn from this comparative investigation is that while Constitution-making
can easily be dominated by the government of the day (as was the case in Uganda, Ghana and
Zambia), there is also evidence of processes where a broad involvement of key players has
worked (as was the case in South Africa, Namibia and Malawi).

The Referendum in Zimbabwe

Given the controversies surrounding the process of Constitution-making presided over by the
Constitutional Commission, the referendum became a critical event in the Constitutional web.
For the Constitutional Commission, the referendum was an exercise in legitimacy. For a body
that had been roundly condemned as partisan and seeking to rubber stamp the views of the ruling
party, the referendum was an opportunity to say to its critics:
“The people have spoken” on the other hand for the NCA, the referendum had serious
implications. If the people were to endorse the draft Constitution, the NCA‟s theoretical premises
would have been severely undermined because the obvious question would have been: “if the
people have endorsed this Constitution, who are you to say it is defective?”
Up to the time, that the Constitutional Commission submitted its draft Constitution to the
president on 29 November 1999, there was no legislation governing the holding of a referendum

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 in Zimbabwe. However, with unprecedented speed, a Referendum Bill was published in
December 1999 and passed into law within a matter of days and now exists as the Referendum
Act (Chapter 2:10). Its passage in Parliament showed government that had learnt nothing and
forgotten nothing even in the face of the open criticisms that had been leveled against
authoritarianism during the outreach programme of the Constitutional Commission. The
government accepted only one amendment in Parliament, namely section 6 of the Bill which
provided:
“Any person who –
(a) is registered on the voters roll for a constituency; or
(b) satisfies the presiding officer of a polling station established for a constituency that he is
entitled to be registered on the voters roll for the constituency, shall be entitled to vote in
that constituency at any referendum.”

The obvious objection to this provision was that constituencies were irrelevant at a referendum where
the issue is presumably a national question. The provision also meant that the discredited voters roll
was to be used in the referendum, a situation which could have easily created uncertainties on the
whole process. Government therefore accepted an amendment which ensured that every eligible voter
could vote by merely proving eligibility to vote. Section 6 now reads:
“Any person who satisfies the presiding officer of a polling station that he or she is eighteen
years or above and is eligible to be registered as a voter on the voter‟s roll shall be entitled to
vote at a referendum.”
Except for this, the government insisted on its other provisions which effectively placed the
referendum process in the hands of the president, as it is the president who: (i) decides whether or not
to call a referendum (s3); (ii) decides the question to be put to the voters (s3); and (iii) appoints
officials to be returning officers at the referendum (s3).
Be that as it may, the referendum held on 12 and 13 February 2000 returned a resounding NO vote to
the draft Constitution.
The Implication of the No Vote and The Way Forward
It is submitted that the NO vote had four components
 It is a NO to the Lancaster House Constitution. This is because when the Constitutional
reform process started, all Zimbabweans were agreed that the Constitution had outlived its
political value. Zimbabweans only differed on the process of making, and the content of, the
Constitution replacing the Lancaster House Constitution. The Lancaster House Constitution
therefore stands rejected.
 It is NO vote to a partisan Constitution-making process. No political party, whatever the
circumstances, should dictate a Constitution for Zimbabweans.

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  It is NO vote to a Constitution that ignores the wishes of the people. The draft Constitution
had become notorious for the manner in which its promoters attempted to defend its
indefensible deviations from the well known views of the people.
 It is a YES vote to starting afresh the Constitution making-process in a democratic and all-
inclusive manner, which ensures that the wishes of the people prevail. In returning a NO
verdict to the draft Constitution, the people of Zimbabwe were neither “shooting themselves
in the foot” nor were they “throwing away a golden opportunity” to make their own
Constitution. On the contrary, the NO verdict opens a real opportunity for Zimbabweans to
agree on a process that will bring a genuinely homegrown and democratic Constitution.

Although the NO verdict means that the Lancaster House Constitution, as amended, remains the
legal Constitution of the country, it has lost its moral and political authority. Accordingly, it can
only remain as the Constitution of the country only for as long as it is necessary for Zimbabweans
to agree on a new process and a new Constitution.
The fact that it has lost its moral and political authority means that is should not be automatic that
the 2000 elections shall be held under its provisions. The better position is for minimum
amendments to be made to the current Constitution to ensure an even playing field for the
elections and such amendments should include:
 Introduction of an Independent Electoral Commission.
 Abolishing presidential appointment to Parliament.
 Enshrining equal access of all political parties to the state media, especially the ZBC.

After the 2000 elections, it is suggested that the Constitution-making process should resume by:
 Convening an all stakeholders conference involving political parties, NCA, former
Constitutional Commissioners and civic groups to agree on the process and to consider the
following questions:

(i) what body should write the Constitution of Zimbabwe?

(ii) what should happen to the various materials already gathered by the Constitutional
Commission and NCA?
 It is foreseeable that at the stakeholders‟ conference, agreement may be reached for the
election of a Constitutional Assembly, through proportional representation, which will take
into account the available materials and write a new draft Constitution, without necessarily
starting with an outreach programme. The draft Constitution will then be presented to the
people for debate for a period of not less than one year, during which it shall be mandatory for
the state to educate the people on Constitutional issues. At the expiration of that period (say

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 one year) and after extensive national debate, the elected Constitutional Assembly will then
produce a final draft to be presented to a referendum.
 The route of using Parliament, which was initially rejected by the very fact of appointing the
Constitutional Commission, is unacceptable. It is a terrible step backwards which conflicts
with the NO vote. As already noted, the NO vote was, in fact, a YES vote to a new genuinely
people driven process. Any future Constitution for Zimbabwe has to be made by a body
which is specifically tasked with the responsibility by Zimbabweans and the indirect mandate
of Parliament in this regard should be rejected.

Brief Outline of Issues of Process

Zimbabwe has various options to pursue in its quest for a new democratic constitution. There were at
least seven options which were debated1 .
These were:
(i) The appointment of a Presidential Commissioner by the government of this day;
(ii) The setting up of a Special Commission by Parliament and not by the government,
(iii) The election of a special constitutional assembly to write the Constitution;
(iv) The convening of the All-Stakeholders Conference to determine the process of
constitution-making;
(v) A process whereby the ruling party through its central committee and politburo would
present a draft constitution to the government, which in turn, would consult the wider
society before presenting the draft to Parliament;
(vi) The spelling out of a process by Parliament for the government to follow;
(vii) The dissolution of the present government and the creation of a government of
national unity which would then formulate an approach to constitution-making and
(viii) The use of Parliament, under section 52 of the current Constitution, to amend the
objectionable components of the current constitution and use the 30-day notice
required by Section 52(2) to gather the inputs from the general public.

The government adopted the first option and disregarded the appointment, by the President of a
Constitutional Review Commission4 in terms of the Commissions of Inquiry Act5. This approach had
several defects. First, it was the government‟s preferred option and its adoption without regard to a
serious consideration of, other options displayed arrogance, on the part of the government, which
raised doubts about its commitment to constitutional reform. In principle, constitution making is a
broad based process which must strive to proceed on the bas is of the broad consensus. Divergent
viewpoints ought to be confronted in an open manner, and where they are being disregarded, this
ought to be done in a framework which is acceptable in a democratic society. A constitution-making

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process which rides over the legitimate concerns of a significant portion of the governed is inherently
defective.

Secondly, the legal framework under which the process was undertaken namely the Commissions of
Inquiry Act, gave the President the sole prerogative to set up the Commission, appoint its members,
decide their terms of reference, alter or revoke their appointment and so on. This legal frame work
clearly underlined the fact that the peoples‟ wishes had no chance of prevailing against the President‟s
own preferences. This alarming fact was underscored in the proclamation by paragraph (g) which
stated: “I direct the said commissioners to compile a report …..which……must be submitted to me for
consideration by me”. The constitution-making process therefore proceeded under a framework which
gave no guarantees that the peoples‟ wishes would be respected. It is submitted that such guarantees
are a pre-requisite for participants to have confidence in the process.Thirdly, the ultimate seal of any
democratic Constitution ought to be a referendum. There was no provision for a referendum in the
legal framework adopted and the government refused to fine a firm undertaking on whether or not a
referendum would be held! It was only much later, after the Draft Constitution had been submitted to
the President, that Parliament hurriedly enacted a Referendum Act7. In the absence of a firm
commitment on a referendum, it was reason able for some groups, notably the National Constitutional
Assembly (NCA) to refuse to participate in a process which had no mechanism of determining
whether or not the people‟s wishes would have been accommodated.
The insistence on legal guarantees was not reason able. The Zambian experience was instructive.
President Fredrick Chiluba appointed a Constitutional Review Commission (Mwanakatwe
Commission) in terms of the Zambian Inquiries Act. The Commission recommended inter alia, that its
purposed Draft Constitution be adopted by a specially elected Constituent Assembly and referendum.
The President and his cabinet rejected this recommend and went ahead with the adoption of the
Constitution by the National Assembly which was dominated by the President‟s MMD. One of the
opposition political parties, the Zambian Democratic Congress then went to court seeking to have the
decision of the President and Cabinet set aside. This was in the case of Fredrick Chitala v Attorney
General9 where the Zambian Supreme Court dismissed the action on the basis that the President was
at law, entitled to reject the recommendations. The court also dismissed the contention that it was
“irrational” for the President to reject the recommendations of a body that had done extensive
consultations. Such experiences demonstrated a case for insisting on some legal guarantees on
respecting the outcome. Finally, there was persistent point made about civic groups, such as the NCA,
which put forward pre-conditions for their participation. It was said that these group were unelected
and therefore had no “mandate” was misconceived. Participation in issues of governance is a
fundamental right which antecedent to the Constitution itself. It is a primary right which belongs to
every member of a body politic. Just as on e does not need to be elected to exercise a right to elect

59
public officials (“right to vote”), it is nonsensical to require one to be elected to speak out on issues of
public concern!

We now turn to an analysis of some of the key provisions of the Draft.

People Driven Constitution Making Process

Background

The NCA was formed in May 1997 as a platform for Zimbabweans to advocate for a new, democratic
and people-driven constitution. Its membership is drawn from both individuals and institutions. The
cornerstone of the NCA is that a “constitution is by, and for, the people.” For the past 12 years, the
NCA has led a campaign to ensure that a new constitution for Zimbabwe is democratic and produced
through an open, participatory and people-driven process. The NCA believes that the process of
making a constitution is as important as the content of the constitution.

NCA Principles on Process

The following principles guide the NCA:

a) The process of making a constitution is as important as the content of the constitution.

b) A defective constitution-making process leads to a defective constitution.

c) The only process that is valid for the making of a constitution is a people-driven process,
because a constitution must be by, and for, the people.

d) It is only through a people-driven process that a constitution becomes legitimate, thereby

deserving respect by both present and future generations.

e) A process which is either led or dominated by the main political parties or the government of
the day or Parliament is, by that fact alone, not people-driven.

f) A people-driven process is one which :

i) is not controlled by the government of the day or the Parliament of the day or the
political parties of the time.
ii) is led by an independent body chaired by a non-partisan person of integrity and
composed of all stakeholders including political parties, government, parliament
and all sections of civil society.

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 iii) provides for free and full participation by all citizens, including those in the
Diaspora.
iv) does not allow any person or group to change the Draft Constitution produced by
the people whether before or after the referendum.
v) provides for a free and fair referendum.

g) A people-driven process requires a political environment where citizens enjoy full freedoms
and rights such as the freedoms of assembly, of association, of movement and of expression
(including full media freedom).

The Process by the Inclusive Government – The Article 6 Process

On 15 September 2008, ZANU (PF) and the two formations of the MDC signed an agreement,
referred to as the Interparty Political Agreement (now popularly referred to as the Global Political
Agreement). It is that agreement which led to the formation of the current government (which is
referred to as the Inclusive Government or, in some circles, the Government of National Unity
(GNU)). In their agreement, the three political parties provided for a constitution-making process
under Article 6. This process is known as the “Article 6 Process”. This process is already underway,
having been launched by the Speaker of Parliament on 12 April 2009.

The NCA rejects the Article 6 process. This rejection is unequivocal and total because the Article 6
process is not people-driven. It does not satisfy the demands of the people of Zimbabwe for a people-
driven constitution–making process. The following are the major flaws of the Article 6 process:

1.Only the three political parties represented in Parliament appoint representatives to the
“Select Committee of Parliament,” which spearheads constitution-making efforts. None of
the other political parties in the country are involved.

3. The Select Committee has the power to decide which representatives of civil society will be
involved in writing a new constitution for the country. The subcommittees which incorporate
civil society representatives will be chaired by Members of Parliament from the three main
political parties.

4. The Select Committee alone convenes and selects delegates to the so-called “All Stakeholders
Conference.” This “All Stakeholders Conference,” is no more than a consultative meeting.
The Select Committee is not bound by the views expressed by conference participants.

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 5. It is the Select Committee, composed of only three political parties, which prepares a Draft
Constitution for Zimbabwe. Although this draft must be presented to a Second All
Stakeholders Conference, the Select Committee is not bound by the views expressed at the
conference. Moreover, delegates to the Second All Stakeholders Conference are chosen by
the Select Committee.

5. The three political parties have already written a constitution which is referred to as the
“Kariba Draft” in the September 15 agreement. It is this Draft which they want to impose on
the people through the operation of the Select Committee and Parliament.

6 Parliament is required to debate the Draft Constitution produced by the Select Committee and
produce a Final Draft to submit to a referendum. Parliament has the power to change any
provision contained in the draft. It is at this stage that Parliament will be required by the three
political parties to impose provisions from the “Kariba Draft”.

7. The time-table in Article 6 is tailored to meet the interests of the three political parties without
any regard to the long-term interests of the country.

8. Civil society only participates at the sub-committee level. Civic society will not be there
when the Select Committee reports to Parliament. Civil society will not be there when
Parliament debates the Draft Constitution and imposes provisions from the “Kariba Draft”.

A People-Driven Constitution-Making Process: Proposal by the NCA

The NCA proposes a people-driven constitution-making process, characterized by the following steps
and procedures:

Step 1: The All Stakeholders Constitutional Conference

The government and civil society should jointly convene an All Stakeholders Constitutional
Conference to establish the structures and procedures to be employed during the constitution-making
process. The conference should be fully funded by the state.

The All Stakeholders Constitutional Conference should be attended by approximately 3,000

Zimbabweans drawn from all sectors of society. This group must include representatives from
government, political parties, trade unions, business, churches, traditional religion, women‟s groups,

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youth, the disabled, human rights organisations, academia, farmers, veterans of the liberation struggle,
people living with HIV/AIDS, the informal economic sector, traditional leaders, media, the diaspora
and the broader civil society. The precise number of representatives from each of the sectors should
be determined by open and transparent discussions between the government and civil society.

Step 2: Appointment of an Independent All Stakeholders Constitutional Commission

At the All Stakeholders Constitutional Conference, there must be appointed and confirmed an
Independent All Stakeholders Constitutional Commission to oversee the constitution-making process.
This body should be composed of between 400 and 600 individuals according to the same ratio of
representation as the Conference. Additionally, at least 50 percent of membership of the Independent
All Stakeholders Commission should be women. The process for appointing these individuals must
be transparent. The leadership of the Commission shall be as follows:

i. The Chairperson should be a Zimbabwean citizen who is or has been a judge of the Supreme
Court or High Court of Zimbabwe. Former Zimbabwean judges who are now serving as
judges in neighboring countries shall be considered. The Chairperson should be a person who
has demonstrated integrity and an independent mind.
ii. The First Vice Chairperson should be a woman elected from nominations submitted by
women‟s organizations.
iii. The Second Vice Chairperson should be a church leader (a priest, bishop, head of
denomination or other minister of religion) elected from nominations submitted by church
organizations.
iv. The Third Vice Chairperson should be a labour leader elected from nominations submitted by
workers‟ organizations.
v. The Fourth Vice Chairperson should be a business leader elected from nominations submitted
by business.
vi. The Fifth Vice Chairperson should be a traditional leader elected from nominations submitted
by traditional leaders.
vii. The Sixth Vice Chairperson should be a youth leader elected from nominations submitted by
youth and student organizations.
viii. The Seventh Vice Chairperson should be an individual elected from nominations submitted
by the informal economic sector.

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 * Should it be necessary for other sectors to be represented by a Vice Chairperson, such
position may be added according to the discretion of the delegates at the All Stakeholders
Constitutional Conference.

Step 3: Comprehensive Public Consultation

The Independent All Stakeholders Commission should facilitate the gathering of public input on vital
constitutional issues. Collection of such information should be proactive, with researchers organizing
grassroots outreach events. It must ensure that feedback is gathered from all geographic regions, all
interest groups, all political parties and Zimbabweans in the Diaspora.

Step 4: Compilation and Dissemination of a Draft Constitution

The Independent All Stakeholders Constitutional Commission should compile the input collected
during public consultation into a Draft Constitution. This Draft Constitution must be distributed to
the public at least one month before Step 5.

Step 5: Convening of a Feedback All Stakeholders Constitutional Conference

This Feedback All Stakeholders Constitutional Conference should be convened by the Commission to
receive inputs on its Draft. This conference must be attended by approximately 3000 delegates in the
same manner as the first conference.

Step 6: Production of Final Draft Constitution

The Independent All Stakeholders Constitutional Commission, after taking into account all inputs
from the Conference in Step 5 and from members of the public through other avenues, must prepare a
Final Draft Constitution.

Step 7: Submission of Final Draft to the President for Gazetting and Referendum

The Independent All Stakeholders Constitutional Commission must submit the Final Draft
Constitution to the President, who should gazette the Draft and call a referendum. The President shall
not change any provision of the Draft. His role is to receive and gazette only. The date of the
referendum shall be decided by the All Stakeholders Constitutional Commission.

Step 8: Referendum

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There shall be a referendum, which shall be conducted in a free and fair manner. Citizens
campaigning for and against the Draft Constitution shall have full freedom to campaign for their
cause.

Step 9: Enactment of the New, Democratic Constitution of Zimbabwe by Parliament and the
President
If the Final Draft Constitution is approved in the referendum, Parliament and the President must then
enact it as the new and democratic Constitution of Zimbabwe. Parliament shall not change any
provisions of the Draft Constitution as approved in the referendum.

Step 10: Elections under the New Constitution

The enactment of the new Constitution must be followed by free and fair elections under the new
constitutional framework. Thereafter, the duly elected government should operate under the new
Constitution.

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