Bottom-up approaches to constitutional implementation: a civil society perspective from Zimbabwe

M is a fourteen year old Zimbabwean girl. On 8 January 2015, she was diagnosed with a bulging imperforate hymen needing an emergency hymenectomy. For months, she had wondered why her abdominal region continued to swell without respite. Concern for her health gave way to urgent worry when what had seemed to be benign swelling became the source of excruciating pain. M was taken from her rural homestead in Murehwa to the capital Harare, where she received her diagnosis. The cost of the surgery was US$ 700 with a US$ 300 deposit required.  Unable to raise such an amount, and with no other recourse available, M was taken back to her rural home, where her family sought help from traditional, herbal and spiritual practitioners.

Economic and Social Context

Given the economic woes in Zimbabwe, M’s story is not exceptional. Conservative estimates place Zimbabwe’s unemployment rate at 70% while per capita GDP was US$ 441.15 in 2013. Access to basic social services is, as is common in other jurisdictions, a function of means, with the small but highly affluent middle class able to access quality medical services from private health practitioners. It is tempting to conclude that the drafters of Zimbabwe’s new Constitution included a new right to healthcare with this reality in mind. The repealed Constitution had no right to health and mainly contained only first generation rights. Zimbabwe enacted a new Constitution on 22 May 2013. In addition to the establishment of independent commissions to support democracy, the Constitution broadened and strengthened constitutionally guaranteed rights by introducing a range of economic, social and cultural rights. Section 76 of the Declaration of Rights Chapter of the Constitution recognizes every citizen’s fundamental right to basic healthcare and emergency treatment.

Nevertheless, these constitutional provisions did not offer a glimmer of hope to M, her aunt or the rest of her family. M’s family retreated to their rural home in the hinterland hoping to find spiritual solutions. When the Zimbabwe Lawyers for Human Rights (ZLHR) learnt of these circumstances and chased down the family, they seemed reluctant to act. The cost of the surgical treatment coupled with travel expenses meant they were more willing to pin their hopes on finding local remedies, not least because the language of constitutional entitlement and State responsibilities was as alien as it was uninspiring. The family finally agreed to send M to Harare again, this time with ZLHR’s representation. A tele-conversation between ZLHR and the Parirenyatwa Central Hospital, together with an official ZLHR letter, was all it took for the hospital to call M in for her surgery the very next day. The lawyer assured the family of legal representation and provided for some of the travel costs to ensure the emergency procedure was carried out. On 20 February 2015, M’s procedure was carried out and she is now fit, healthy and back in school.

While M’s story ends on a positive note, most such stories do not. Low constitutional literacy and absence of means have meant that most people, who suffer gross human rights violations are resigned to their fate. The rights and fundamental freedoms in the Constitution have yet to permeate the hinterland and improve the lives of ordinary people. Section 7 of the Constitution requires the State to promote public awareness of the Constitution. It also states that the Constitution must be taught in schools, to members of the security and civil service, and requires the State to support civil society initiatives to increase knowledge of the Constitution. The provision hinges on an acknowledgment of the need for an empowered populace to lend credence to the letter and spirit of the constitution.  However, this is not an area in which the State has shown any particular concern, resulting in low levels of constitutional awareness.

Political Context  

Zimbabwe’s 2013 Constitution making process was the product of a power sharing deal between the main political parties in the country following disputed elections. While some members of the interim government viewed the Constitution making process as a break with the past and an opportunity for the establishment of a new rights-based epoch, others viewed it as a necessary but irritating step to holding elections and preserving the status quo. Following the enactment of the new Constitution, the government moved rapidly to ensure that the elections would be held on the next legally permissible date. Through a highly questionable decision by the Constitutional Court and gazetting of Presidential Proclamations, the government railroaded the nation into an early election on 31 July 2013. In the process, the government was the first violator of many constitutional provisions before the proverbial ink had dried. Political motivations overtook constitutional imperatives and, with that, the necessary mobilisations to increase awareness of the new Constitution were ignored.

Following the formation of a new government, the State adopted the language 'of alignment laws'. State actors, regulators and administrators adopted and routinely referred to this narrative. What was meant to be a process of comprehensive legislative alignment became a de facto suspension of the Constitution, at least at the operational level. While the government insists that alignment of laws is underway, administrators have claimed they cannot implement the Constitution without enabling legislation. The remedy to this impasse has taken the form of civil society initiatives and approaches to the Constitutional Court.

Civil Society and Legal Remedies

In 2013, civil society organised itself to monitor elections and implementation of the Constitution under the banner of the Civil Society Monitoring Mechanism (CISOMM). This group was initially formed as the civil society mirror to the State’s Joint Monitoring and Implementation Committee (JOMIC) during the administration of the Inclusive Government. Independent reports were sent to the JOMIC and meetings were held to highlight areas in need of attention.  Following the end of the Inclusive Government in 2013, CISOMM continued to independently monitor implementation of the Constitution and facilitated debates, discussions, and rural outreach programmes. In all such settings, from university halls to community meetings, the asymmetry of information was obvious. During the constitutional outreach process, the Select Committee of Parliament visited all regions of the country, including the most remote areas. These visits were empowering in their own right as most Zimbabweans met, for the first time, their government representatives and were asked to participate in governance. However, there was no feedback and there were no further engagements. Many participants in the CISOMM activities stated that they were yet to have sight of the new Constitution, let alone gained a working knowledge of its contents and import. Copies of constitutions were lacking not only in communities, but in university libraries as well. CISOMM then proceeded to work on simplified translations, factsheets and brochures to address this information asymmetry.

A situation of this kind could be ameliorated by the executive placing primacy on constitutional implementation. In this way, a new wave of constitutionalism would be felt at the District Administrator’s office, the local police station and local registry. This opportunity was lost with the diction of alignment. Thus, stranded between a long wait for enabling legislation and the de facto suspension of the Constitution, civil society has done more than sensitise communities. Through an intensive programme of mobile legal clinics, civil society organisations reached out to communities with the aim of taking matters to the single body that could ensure implementation of the Constitution: the Constitutional Court. Teams of lawyers targeted the most remote parts of the country, organizing meetings with communities, culminating in urban mobile clinics on Human Rights Day celebrations. The pitfalls of such an approach were apparent in the case of M. The society is neither highly litigious nor confrontational. Reaching out to take up cases for litigation involves a fair amount of social engineering. However, the Constitutional Court has been hearing cases, providing remedies, and thus seems open to this type of citizen litigation. In one emblematic case, the Court heard two young women, Loveness Mudzuru and Ruvimbo Tsoposzi, who challenged the practice of child marriages. Both girls were married below the age of eighteen and, during their cases, outlined the economic, social and civil strife they suffered. Their challenge was based on the new right to found a family which is reserved for those above the age of eighteen in Section 78 of the Constitution. The matter was argued in January 2015 and remains pending, but highlights the absence of laws and practice aligned to the country’s new Constitution. The citizenship cases of Mutumwa Mawere and Daniel Madzimbamuto were also predicated on this lack of constitutional implementation. A new entitlement to dual citizenship, albeit only for citizens by birth, was not being respected by the Registrar General of Births and Deaths and the Constitutional Court recognised the Applicants’ right to Zimbabwean passports.

This is not to claim that the Constitution is being ignored entirely. Some of the provisions were implemented with impressive speed, even in the absence of enabling legislation. For instance, under the old order, accused persons were to be presented before a judicial officer within 48 hours of arrest if the day on which the 48 hour period expired did not fall on a weekend or public holiday. In the latter case, such arrested persons would be taken to court on the next day which is not a weekend or public holiday. The police incorporated this into their practice and would routinely conduct mass arrests towards weekends and public holidays to prolong the period of pre-trial incarceration. After the 22^nd of May 2013, there was a dramatic shift. The magistrates’ court, which is the remand court, started conducting hearings on weekends and public holidays. Arrested persons were taken to court on weekends and public holidays. It was remarkable how such progressive provisions got traction without the need for agitation or pressure from members of the public and civil society. This may be a result of cooperation between the Judicial Services Commission and the Zimbabwe Republic Police. Such a change of conduct without insistence on prior legislative enactment may have been aided by the absence of bureaucratic and other delays that riddle the law making process.

However, like the happy ending to M’s story, executive leadership in ensuring constitutional implementation has not been the norm either. Most of the provisions of the Constitution remain to be implemented. Bodies including the National Peace and Reconciliation Commission, the Zimbabwe Land Commission, and all Provincial Councils have yet to be established. Requirements for gender parity have been ignored in executive appointments to Cabinet and in bodies such as the Judicial Services Commission. There is no discernible political will in fulfilling the rights in the Constitution or in respecting its letter and spirit. This has been the most dispiriting part of the feedback during the CISOMM outreach exercise. Though not generally representative of most/all Zimbabweans, there is a palpable cynicism regarding civic engagement, constitutional litigation, and the extent to which the government can be held accountable. A sad outcome of the absence of constitutional implementation is the fact that more and more citizens are resigned to their own fate and place more faith in patronage and acquiescence than in empowerment and demand for fulfilment of constitutionally guaranteed entitlements.

Regional Comparison

Thus, two problems emerge from the failure to implement the new Constitution from the Zimbabwean context: the failure to establish a new order envisaged by the new Constitution and the disempowering effect on the citizenry. The constitution making process created a vision of people having a say in their own governance, simultaneously giving them a voice and selling the idea of popular participation. However, the mantra of ‘alignment of laws’ and subsequent delays in constitutional implementation have dashed the nascent hopes people had developed in rule of law and constructional remedies, thereby entrenching the idea of an all-powerful, inaccessible government which only responds to subservience and patronage.  This is heavily influenced by Zimbabwe’s local experience and speaks to its recent history. Constitutions and constitution-making have generally been proximate to circumstances like the emergence of new states, the end of military regimes or part of efforts to end civil conflicts.  The primary purpose of a Constitution varies considerably depending on the local context. The reasons for a new Constitution can vary from nation building, to consolidation of democracy and establishment of peace following conflict. This is often connected to a break with the past and establishment of a new epoch.

In the case of Zimbabwe, constitution-making was the work of an interim government with two main parties holding different views on the purpose and intended outcome of the process. The constitutional text reflects this dichotomy. Ultimately, those desirous of entrenching the old order won the elections just over two months following the passage of the Constitution. This divergence of views was always going to affect which provisions of the Constitution would be given primacy. The Kenyan experience, in which politicians opposed to the drafting of a new Constitution actively sought to sabotage its implementation, is apposite.

In the fervour of constitution-making, the drafters of the Zimbabwean Constitution left out fundamental safeguards. For instance, while the Constitution requires the State to help promote constitutional awareness and support the work of civil society, there is no body specifically charged with carrying out this mandate. Thus, even though various community members were not pleased by the fact that no politicians gave them feedback regarding the Constitution and its content, it is not apparent how many of them actually understand its import. The Ministry of Constitutional and Parliamentary Affairs, which oversaw the constitution-making process, is no longer in existence. Instead, the Constitutional Affairs Department subsists as an office within the Ministry of Justice. This is in stark contrast to the Kenyan Constitution, which establishes an independent organ, the Commission for the Implementation of the Constitution. In Kenya, the Commission is required to monitor, facilitate, coordinate and oversee the development of the legislation and administrative procedures required to implement the Constitution. It is also required to protect the sovereignty of the people, secure the observance by all State organs of the democratic values and principles, and promote constitutionalism. The Commission submits quarterly reports on the progress of implementation to the President, Prime Minister and members of the public. Challenges which the Commission has noted include attempts to mislead the public on constitutional issues, delays in operationalising in key constitutional offices, conservatism and late submission of bills.

Such independent bodies assigned to oversee constitutional implementation are a new phenomenon. Most jurisdictions are content with retaining constitutional oversight within such bodies as the courts and parliament. Nevertheless, the danger of pointing to this one body are real, as no single body can become the panacea to all constitutional deficiencies in the country without being vulnerable to systemic problems at all levels of the State. However, the Zimbabwean scenario, riddled with questions of judicial independence and executive over-reach, is one in which such an independent body would be indispensable to the implementation of the Constitution. Where the Constitution making process is itself a divisive issue, it is prudent to establish an independent body to oversee its implementation and protect the constitutional text from the whims of successive incumbents.

This is not to suggest that such a commission would suddenly make the State receptive to the views of the civil society or agreeable to the precepts of the rule of law and good governance. In fact, this may have an adverse effect on efforts to infuse constitutionalism at every level and in all agencies of the State. However, it would be an invaluable entry point for members of the public and civil society. Such a commission could have been publishing periodic reports on implementation of the Constitution and applying legitimate pressure on politicians to implement the Constitution. It could have been vested with the promotional mandate and ensured that there were government programmes to enforce the requirement that the Constitution be taught in schools and to members of the security services. Cases of egregious yet soluble constitutional abrogation, as that suffered by M, could be resolved by its intervention without the need for lawyers or threats of litigation. Civil society and lawyers have had to fill this lacuna, publishing periodic reports on constitutional implementation, conducting outreach programmes, and providing remedies to persons whose constitutional rights have been violated. The work of CISOMM would have benefited from the existence of an independent body of the State with a mandate to oversee constitutional implementation.

Recommendations

While speedy implementation of the Constitution and establishment of key constitutional offices remains crucial in all contexts, countries in protracted transitions, however, certainly need specific support mechanisms for constitutional implementation. The nature of the conflict and struggles that riddle such regions pervade the constitutional arena and negatively affect constitutional implementation. Empowerment of the citizenry remains a foundational cornerstone for good governance and the rule of law. In the absence of leadership by the State, a strong civil society needs to take the lead and work with legal practitioners to offer remedies to constitutional breaches. Political gridlock and bureaucracy can easily stymie constitutional implementation and dampen the celebrations over a progressive constitutional text. Lobbying and advocacy have to be used as tools to ensure the Constitution remains a living document as, ultimately, very little can be achieved from expecting politicians to be guided sincerely by the letter and spirit of a new Constitution. The State of Zimbabwe could still establish a Commission for the Implementation of the Constitution through an Act of Parliament to oversee constitutional implementation and could vest it with the Article 7 promotional mandate.

These early years after enactment of the Constitution are instrumental in establishing a constitutional culture informed by the rule of law and good governance. In the absence of political will for speedy implementation, civil society and the general populace are key players in lobbying and advocating for constitutional implementation. The impact of such efforts, which can be challenging and labour intensive, would be greatly enhanced by the existence of a body with the mandate of monitoring constitutional implementation, more so if the jurisdiction has long had problems in the areas of judicial independence and executive over-reach.

David Tinashe Hofisi is a lawyer practicing in the areas of human rights and constitutional law.  He has worked on constitutional-monitoring projects and has a Masters’ Degree in Rule of Law for Development from the Rome Centre of Loyola University (Chicago). He is also a 2015 YALI Mandela Washington Fellow.

BOOKMARKS

1. Name withheld to protect M’s privacy
2. See Section 81(1)(f) of the Constitution of Zimbabwe 
3. Section 32(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]
4. See the remarks in the case of the Honourable Gillespie J in the case of State vs Makwakwa 1997(2) ZLHR 298 (H)
5. Michele Brandt, Jill Cottrell, Yash Ghai, Anthony Regan, Constitution-making and Reform: Options for the Process, September 2011; Interpeace ISBN 978-2-8399-0871-9 at page 13
6. See Article 249 of the Constitution of Kenya