Zimbabwe - Country Constitutional Profile

General Information

Formerly Southern Rhodesia and the Republic of Rhodesia, modern day Zimbabwe shares a border with South Africa, Botswana, Zambia and Mozambique. Although English is the official language, there are several other local languages of which Isi Ndebele and Shona are the most prominent. 

Political System and History

Although only recognized formally in 1980, Zimbabwe proclaimed its independence from Britain in 1695.  Zimbabwe’s political history, despite its status as a former British colony, has also been greatly influenced by other actors such as the British South Africa Company and the Southern Rhodesia Settler Government. Under the Rhodesian Settler Government of Ian Smith, the socio-economic and political configuration of the society was modeled almost on the South African apartheid system where the blacks were classified as second class citizens. This set up will ultimately fuel the colonial and liberation wars by nationalists with international support. With the decline of the Smith regime in the late 1970s, following years of international isolation and sanctions coordinated by Britain as punishment for its apartheid style government, the Zimbabwe African Peoples Union (ZAPU) which had fought in the colonial and liberation wars rose to the fore with its leader Joshua Nkomo eventually becoming the first president of an internationally recognized independent Zimbabwe in 1980. Shortly thereafter, he was succeeded by Robert Gabriel Mugabe after his Zimbabwe African National Congress (ZANU) won a landslide victory in the General elections in February 1980. Originally, British style parliamentary system was adopted under the Nkomo Regime. However, after Mugabe took power and his popularity waned over the years, his grip on the country grew and the system became presidential with a powerful executive and president.

Constitutional History and Development

The history of Zimbabwe’s constitutional development can be traced back to 1888 when the British South Africa Company (BSAC) gained exclusive mining rights over the Kingdom from King Lobengula. In 1898, the BSAC will violate the terms of the concession, over throw the king and establish colonial rule. For the present purposes however, Zimbabwe’s constitutional history and development will be limited to the decolonization and independence phase marked by the Lancaster House Conferences, the post-independence period and finally the post-cold war period. 

The Independence Constitutional Development

Constitution-Making in the 1950s and 1960s

Prior to the Lancaster House Constitutional Conference of 1978 – a series of meetings convened by Britain to design a roadmap for and negotiate the terms of an independence constitution for Zimbabwe – constitutional reform in the country was characterized by a pattern of political exclusion where the Rhodesian government sought to maintain absolute control over the process and leaving out major stakeholders. This pattern would result in two failed reform processes; one of which produced the Rhodesian Independence constitution in 1965 designed by the Rhodesian settler government to prevent decolonization. The result will be a 15 year civil war that will precipitate the fall of the settler regime under Ian Smith.

The Lancaster House Agreement and the Independence Constitution of 1980

In August 1978 as the Ian Smith regime neared the brink of demise, the British government invited Zimbabwe’s nationalist leaders to the Lancaster House Constitutional Conference to negotiate the terms of independence and a new constitution for Zimbabwe. Following discussions between the British Government and representatives from the Rhodesian government and nationalist movements between September and December 1979, a compromise constitution known as the Lancaster House Agreement was signed between the parties on December 1979 ending the civil war and providing for independence.  Within a year thereof, independence was granted, elections were held and the Zimbabwe African Peoples’ Union (ZAPU) formed the first independence government under a fragile coalition headed by Nkomo. 

The Post Independence Constitutional Development

Amendments to the 1980 Constitution

As a document established through an Act of the British Parliament and given to the Zimbabwe rather than a product of an inclusive participatory process, the 1980 constitution naturally established the Westminster style system - the hallmark of which is the supremacy of parliament over the executive. Further, the constitution – though designed to end autocratic and undemocratic rule that prevailed under the Smith regime – preserved two fundamental features of the colonial period: unequal distribution of land ownership between blacks and whites and the preservation of white dominance. This configuration eventually provided the Mugabe regime with ammunition to challenge and initiate substantial amendments to the 1980 Charter.

In total, seventeen amendments covering various issues were made to the Independence Charter between the time it was established and 2005, and, none of which had been through a referendum or popular participation. At times, the motives for the amendments were purely political and only aimed at ensuring that Mugabe entrenched himself in power for as long as possible. Among the most radical of such amendments were; the abolition of seats reserved for white minority in parliament and the abolition of the office of the prime minster in 1987 and the creation of an executive presidency following a forced merger between Mugabe’s ZANU and the main opposition Patriotic Front (PF). This move effectively made Zimbabwe a de facto one party state and presidential system. Of all the amendments, the most controversial to date perhaps has been the Constitution of Zimbabwe Amendment (No.17) Act signed into law on September 12, 2005 nationalizing acquired through the so called fast track process and deprived original owners of the right to challenge the expropriation action in court.

Post Cold War or Multi Party Constitutional Development

The 1990 Reform Movements and the National Constitutional Assembly

Between 1988 and 1990 when the presidential system was fully in place, the Mugabe regime was perceived as becoming more dictatorial and ineffective both within and outside Zimbabwe. A government sponsored Economic Structural Adjustment Program in the 1990s resulted in grave economic hardships. Public disillusionment with government grew as corruption became rampant. Impunity was the order of the day. The immediate result was the revival of trade unionism. Together with an emerging powerful civil society, the trade unions launched the National Constitutional Assembly (NCA) with reform objective which included establishing a new constitutional order. The reform process in Zimbabwe quickly entered a deadlock when a government sponsored land Expropriation Act in 1992 sought to seize white farms without compensation – with the government, and, the courts and civil society on the one hand arguing on the constitutionality of such an action.

The 1999 Constitutional Reform Process and the 2000 referendum

In 1999, mounting pressure from reformist movements forced the government to initiate reforms that would result in a truly national constitution for Zimbabwe. A Constitutional Commission of Inquiry (CCI) – contrary to a properly empowered independent National Constitutional Conference, proposed by the NCA and the newly formed Movement for Democratic Change (MDC) – was handpicked by the government to write a draft in a process that was highly restricted and driven by the government. According to its terms of reference, the CCI was to consult with the public, prepare a draft constitutional proposal to be submitted and discussed at a Constitutional Conference, but whose outcome was to be sent to the president for finalization. In February 2000, the resulting draft was put to a referendum. The NCA and the MDC - arguing that the draft failed to reflect the views of the people taken during the public consultation process and provided for a very powerful executive, weak parliament, and inadequate human rights protection - mobilized a massive civil society campaign against it. The result was a shocking “No” vote which - combined with another significant improvement of the MDC in general elections the same year - shook the morale of a ZANU -PF government which until now seemed to have overestimated its popularity with the people.

Since this defeat, the State of Zimbabwe witnessed great socio - economic and political decline. The country significantly regressed away from the precepts of democratic practice and governance, as official resort to intimidation and use of force grew.

The 2007 Constitutional Process and the Kariba Draft Constitution

Seven years later, the government - unable to curb rising domestic and international pressure to democratize – again made another attempt at institutional reform. In September 2007, representatives of the ZANU-PF and the two factions of the MDC – by now split into two factions led by Morgan Tsvangirai (MDC-T) and Arthur Mutambara (MDC-M) – met and wrote a new draft in a highly clouded process. This is the so - called Kariba Draft Constitution, named after the town in which it was crafted. Key features of the Kariba draft included a very powerful president with powers to unilaterally declare a state of emergency and suspend human rights, dissolve parliament, unilaterally appoint all public officials and dominate other branches of the government. The Kariba draft has been criticised for two main reasons – firstly, it was the product of a very secretive process, not based on consensus and not people-driven. This document was an agreement between Zimbabwe’s three main political parties, all with strong vested interest. The document failed to give the people a say in the formation of their Government.  Secondly, the executive structure in place ensured that parliament and the judiciary remained very weak institutions dominated by, and subject to political manipulation and control by the executive. The Kariba draft removed the need to consult with another office or gain Senate approval when carrying out many executive functions. Moreover, the draft included a section limiting the ability of courts to inquire into the manner in which executive powers are exercised. Proponents of the second argument contended that the Kariba draft was for all means and purpose a repackaging of the Constitutional Commission Proposal draft rejected in the 2000 referendum thereby rendering the intent of its drafters questionable. Although the draft charter never saw the light of day as a final charter, it resurfaced again – amidst controversy– as a model document for the 2009 constitutional process.

Constitutional developments in 2009 and the making of the 2013 Constitution

In March 2008, following general elections widely believed to have been won by the MDC-T; violence erupted as the ZANU-PF refused to concede defeat, and instead embarked on a violent campaign of reprisals and attacks against the opposition. In September 2008, the MDC and the ZANU-PF reached a power sharing deal, so-called Global Political Agreements (GPA), brokered by the Southern African Development Community (SADC) ending more than six months of political violence. The GPA established unity government with Mugabe as President and Tsvangirai as Prime Minister. The Agreement also stipulated that Zimbabwe must have a new constitution by August 2010.

 Following the signing of the GPA, a Parliamentary Committee on the Constitution or COPAC comprising 25 members was set up to lead the process. Membership on the committee was COPAC was distributed amongst the political parties as follows:

  • 10 ZANU PF
  • 11 MDC-T
  • 3 MDC M
  • 1 Representative of the traditional chiefs

From a gender perspective, the total composition was 17 men and 8 women. The Committee was headed by a  troika of representatives from the three main parties, namely, Hon. Paul Mangwana from ZANU-PF, Hon. Douglas Mwonzora from MDC-T and Hon. Edward Mkhosi from MDC-M. 

From the outset there were two schools of thought on how the process should unfold. On the one hand was the ZANU-PF which wanted the new document, to be modeled on the Kariba draft and on the other, the MDC and a civil society who advocated for a fresh start.  Notwithstanding the clear timeframe of the GPA, enormous logistical, administrative and funding challenges, as well as disagreement over the status of the Kariba draft, delayed the Constitution drafting process for over a year. Despite these challenges COPAC made some progress in 2009 when it convened the first All-Stakeholders Conference in July 2009. 4000 delegates attended the conference, including parliamentarians as well as nominees from political parties and civil society. Delegates chosen to represent special interests groups also attended. From June to October 2010 COPAC held public consultations to gather the views of Zimbabweans as stipulated by the GPA. COPAC held a total of 4,943 meetings in all 1,957 wards. The consultation process was meant to allow the people of Zimbabwe to gain ownership of the constitution making process although ultimately, there was still a wide feeling that it remained mostly in the control of the political parties.  

On 17 July 2012, the first draft of the constitution was released but quickly became highly contested. Several provisions of the draft were rejected President Mugabe and the ZANU-PF. The rejected provisions covered devolution, presidential running mates, the constitutional court, a prosecuting authority, a clause on land commission, same-sex marriage, and foreign funding of political parties. ZANU-PF then submitted a list of thirty issues to be added to the constitution. These issues included the restoring of presidential powers which had been reduced in the draft and introducing articles on the empowerment of blacks. Many of the issues raised by ZANU-PF were integrated into the final constitution draft issued on 31 January 2013. Proponents of the final draft argue that the new Constitution will redistribute power away from the state and back to the citizens. The draft included a Bill of Rights. Some civil-society activists argue that ZANU-PF and the two MDC formations captured the constitutional project and narrowed it to a struggle over party-political interests at the expense of the will of the people. The National Constituent Assembly— an umbrella organization for civil societies with a history of campaigning for constitutional chance – boycotted COPAC’s process and even launched an alternative people-driven process title “take charge”. 

With the final January draft agreed upon, a referendum was organized on March 16 2013 with an overwhelming approval rate for the draft. The document was promulgated into law on May 22 although the coming into force of certain provisions was delayed until after the general elections. Zimbabwe’s 2013 Constitution replaced the 1980 Constitution which had been supplemented with amendments over the years. Overall, it establishes a unitary state; recognizes socio-economic rights; calls for parity between men and women in political participation; limits the presidential term of office to two five-year mandates and establishes a constitutional court. It also requires parliamentary approval for all declarations of a state of emergency.

The Executive

The executive branch is headed by the President who is Head of State, Head of Government, and Commander-in-Chief of the Defense Forces.  Candidates for President have to be at least 40years old, citizens of Zimbabwe by birth or descent, and be registered voters. Each candidate selects two running mates. The President and Vice President are elected by universal suffrage for a five year term that is coterminous with the life of Parliament. The Cabinet comprises the President, two Vice-Presidents, Ministers and Deputy Ministers. 

The Legislature

The Constitution sets up a bicameral parliament comprising   the National Assembly and the Senate. The Senate is comprised of eighty Senators of which six are elected through a proportional representation system from each of the provinces. Sixteen Senators are chiefs, two from each province. Additionally the President and Deputy President of the Council of Chiefs are also Senators. Further, two individuals are elected to represent the disabled. To be a Senator a person must be 40 years old and a registered voter. The disabled are represented in the Senate by two Senators who themselves must also be disabled. The National Assembly is made up of 210 members elected from the various constituencies in Zimbabwe. Members of the Assembly must be a 21 years old and be registered voters. Both houses are elected for a five year term.

The Judiciary 

The judiciary comprises the Constitutional Court, Supreme Court, High Court, Labor Court, Administrative Court, magistrate courts, customary law courts, and other courts established under acts of parliament. All state and government bodies are bound by court decisions. Justice, reasonable promptness, safeguarding human rights and the rule of law are the guiding principles of the administration of justice. The Constitutional Court is the highest court on constitutional matters in Zimbabwe and its decisions binds all other courts. The Constitutional Court’s jurisdiction is limited only to constitutional matters. The Supreme Court is the final appellate court in all non- constitutional matters. An order declaring a law unconstitutional by any court must be affirmed by the Constitutional Court to receive any force.   

Structure of Government under the 2013 Constitution

 

Timeline

1810s Ndebele people fleeing from violence and Boer migration in present-day South Africa moved north settling in the Metabeleland.
1889 British South Africa Company (BSA) gains a mandate to colonize what becomes Southern Rhodesia
1893 Ndebele against the British South Africa Company is crushed. 
1922 BSA administration ends and the white minority opt for self-government
1930 Land apportionment act restricts blacks’ access to land.
1960 Black opposition to white rule, which has been intensifying since the 1930s, sees the emergence of nationalist groups the Zimbabwe African People's Union (Zapu) and the Zimbabwe African National Union (Zanu).  
1965 Ian Smith unilaterally declares independence under white minority rule.
1979 British-brokered all-party talks in London lead to a peace agreement and new constitution, which guarantees minority rights.
1980 Robert Mugabe and his Zanu party win Independence election. 
18 April 1980 Zimbabwe’s independence is internationally recognized. 
1982 Government forces are accused of killing thousands of civilians over next few years in efforts to crush rebellion in Midlands and Matabeleland provinces.
1987 Mugabe changes constitution and becomes executive president.
1998 Economic crisis accompanied by riots and strikes.
February 2000 President Mugabe suffers defeat in referendum on draft constitution.
June 2000 Parliamentary elections: ZANU-PF narrowly fights off a challenge from the opposition Movement for Democratic Change (MDC) led by Morgan Tsvangirai, but loses its power to change the constitution.
February 2002 Parliament passes a law limiting media freedom
March 2002 Mugabe re-elected in presidential elections condemned as seriously flawed by the opposition and foreign observers.
30 Mar 2002 Constitutional Declaration issued, calls the for the formation of Constituent Assembly to write a new constitution
April 2002 State of disaster declared as worsening food shortages threaten famine. 
June 2002

45-day countdown for some 2,900 white farmers to leave their land begins, under terms of a land-acquisition law passed in May.

March 2005 Ruling ZANU-PF party wins two-thirds of the votes in parliamentary polls. Main opposition party says election was rigged against it.
November 2005 Ruling ZANU-PF party wins an overwhelming majority of seats in a newly-created upper house of parliament, the Senate.
December 2006 Ruling ZANU-PF party approves a plan to move presidential polls from 2008 to 2010, effectively extending Mr. Mugabe's rule by two years.
September 2008

Global Political Agreement establishing a transitional government and stipulating the drafting of a new constitution is signed by the stakeholders ending months of post-election violence.

April 2009

Establishment of a 25 member Parliamentary Select Committee to coordinate the process: Seventeen thematic sub committees are established. The sub committees are expected to drive the public consultation process on their specific topics.

June 2009

The Parliamentary Select Committee established to coordinate the process embarks on a nationwide public consultation campaign to collect views.

July 2009

First all Zimbabwe or stake holders constitutional conference convenes to start the process of crafting the new charter.

October 2010

COPAC Public Consultation Process ends. 

July 17, 2012

Completion of Constitutional Draft. 
October 22, 2012

Second All Stakeholders’ Conference to address the July 2012 Draft Constitution.

January 2013

Drafting phase of the constitutional process ends when the Parliamentary Select Committee adopts a constitution draft.
March 2013

Public vote on a referendum to accept the new constitution.

May 2013

Approved Constitution promulgated
June 2013

President Mugabe issues a decree setting 31 July - the deadline given by the Constitutional Court - as the date for presidential and parliamentary elections, saying legislation would take too long. Prime Minister Tsvangirai accuses Mr. Mugabe of acting unconstitutionally

Bibliography

BBC News. Zimbabwe Country Profile. 2013 July 13. < http://tinyurl.com/7oywvqp>. Freedom House. Thematic Analysis of Zimbabwe’s Proposed Draft Constitution. 17 October 2012.Web. 2013 July 19. (available at http://tinyurl.com/oe722my) Simon Allison. Analysis: Even Zimbabwe’s new constitution is waiting for Mugabe to die. Daily Maverick. 2013 July 19 < http://tinyurl.com/nh5zdee>. SW Radio Africa. An Analysis of the COPAC Consolidated Draft Constitution. 2013 July 19. <http://tinyurl.com/ob2gjck>. The World Outline. An analysis of Zimbabwe’s New Constitution. 2013 July 19 < http://tinyurl.com/nghpnp7>. United States. CIA World Factbook: Zimbabwe. Web. 2013 July 13. < http://tinyurl.com/4kzm8k>.

Executive

President

Appointment
Elected by universal adult suffrage for a five-year term coterminous with the life of Parliament
Powers
  • Head of State, Head of Government
  • Commander-in-Chief of the Defense Forces
  • Appoints ministers and assigns functions to them
  • Promulgates bills of parliament into law
  • Declares wars and makes peace
  • Declares state of emergency
Removal
  • Expiration of term
  • Resignation
  • Death
  • Dissolution of Parliament
  • Impeachment

Cabinet

Appointment
  • Consisting of the President, Vice President, Ministers and Deputy Ministers
  • Ministers appointed by the President
Powers
  • Performing functions as assigned by the President
Removal
  • Dismissal by the President
  • Resignation
  • Vote of no confidence by Parliament
  • Expiration of President’s term
  • Loss of membership in Parliament

Legislative

Cabinet

Appointment
  • 40 Senators elected through a PR system from the provinces.
  • 16 are chiefs elected by the provincial assembly of chiefs
  • President and Deputy President of Council of Chiefs also sit as Senators
  • 2 individuals elected to represent the disabled community
Powers
  • Amends the Constitution
  • Legislation
  • Representation
  • Control of government action
Removal
  • Resignation
  • Dissolution of Parliament
  • Assumption of other office incompatible with membership in Parliament
  • Absence of 21 or more days without leave
  • Removal of name from voter register

Senate/National Assembly

Appointment
  • 210 directly elected members
Powers
  • Amends the Constitution
  • Legislation
  • Representation
  • Control of government action
Removal
  • Resignation
  • Dissolution of Parliament
  • Assumption of other office incompatible with membership in Parliament
  • Absence of 21 or more days without leave
  • Removal of name from voter register

Judicial

Constitutional Court

Appointment
  • Consisting of the Chief Justice, Deputy Chief Justice and five other judges
Powers
  • Deciding all constitutional issues.
  • Advising on the constitutionality of any proposed legislation.
  • Regulating and protecting its own process
  • Developing the common of customary law
Removal
  • Expiration of 15 year term
  • Attainment of retirement age set forth in art 186(1)(a)
  • Attaining of the age of seventy years
  • Removal as specified in article 187

Supreme Court

Appointment
  • Consisting of a Chief Justice, Deputy Chief Justice and no fewer than 2 other judges.
Powers
  • Deciding on all non-constitutional matters
  • Granting redress where appropriate
  • Regulating and protecting its own process
  • Developing the common of customary law
Removal
  • Attainment of retirement age set forth in art 186(1)(a)
  • Attaining of the age of seventy years
  • Removal as specified in article 187