Applying their 2/3 majority advantage in granting greenlight to Constitutional Amendment Bill No.2, the House of Assembly has reversed the clock towards anti-clockwise direction. The ruling party Members of Parliament played accessory to an overt subversion of democratic governance and connived in the dispensation of Constitutionalism in the Second Republic. A purposive read of sections 117 and 1119 of the Constitution of Zimbabwe ,2013 entails the prerogatives of the Parliament as an arm of the State with a unique function _making laws and representing the people. While the other two arms of the State are mandated to interpret and enforce the law, the Legislature assumes the bridge between the citizens and the Central Government. It is therefore apposite to emphasize that whenever Parliament executes its tasks (makes laws) , there is always a presumption that they are conveying rather than subverting public interest. However, that presumption is eroded whenever the Parliament acts to the contrary. Below is why voting for the Bill was an exposition of representative betrayal.
Zimbabwe has a bi-camera system of Parliament comprising the Senate and the National Assembly. Both Houses have a mandate to craft laws and debate policy. It is in those vital Houses that, even the most absurd of the laws have potential to be sanitized and dressed the legality garment. It is fortunate or unfortunate at the same time that , law, no matter how undemocratic and unjustified when endorsed by Parliament, still binds the citizens. An authoritative law, after being given green light by the Parliament can be effective and functional. A breach of the same can, in some glaring instances, lead to arrest. While it is legal for the Parliamentarians to make laws, it is outside the rule of law to facilitate the crafting of the laws that tend to take away power from the same people to which authority is drawn. Basic social contract stipulates that ,out of progressive compromise, the people relinquished their power to some few individuals who form the government in order for them to act on their behalf and in accordance to their will. Citizens and Parliamentarians relationship is akin to a principal-agent relationship. Normally, the latter cannot purport to act on behalf of the former and is prohibited to act outside the will of the former lest they act dishonorably. The Marxist-Leninist disciples have a contrary view that, law is not progressive but retrogressive since it depicts not the will of the governed ,but advances the will of the political elitists who were lucky enough to take power.
The Constitution of Zimbabwe,2013 A historical overview of the Constitutional development in Zimbabwe proves that the 2013 document is generally progressive, albeit if fully implemented. Constitutional law experts like Dr A Magaisa have affirmed this notion while Prof L Madhuku, though generally critical of some provisions on the Executive powers, agrees that it is a good starting point towards the Constitution we want. It is noteworthy that, this document came after a concerted effort from the citizens and the civil society. It is a child of protracted advocacy and negotiation during the Government of National Unity. Even the Courts have not yet had the liberty to invoke some of its provisions especially on the Bill of Rights. Therefore, if anything, the Constitution needs not be amended but, enforced through alignment of other laws inconsistent with it and through judicial interpretation. Unfortunately, owing to the whipping system that applies in our Parliament, the Constitution is at the verge of being amended to fit some political interests and to shape internal politics of the ruling party.
What the Bill seeks to change The Bill seeks to change a plethora of current provisions. This piece seeks to interrogate only the consequences of clauses 23 and 13. It is shocking, if not alarming that the MPs from the ruling party in their complex totality voted in favor of this clause which seeks to undermine their oversight role on fiscal governance. The Bill is a threat to their independence and tantamount to a mediocre function to the detriment of the people of Zimbabwe. Given the debt dungeon which the State is languishing in, further empowering the President to broker loan deals without Parliament approval is an abrogation of the very essence of checks and balances. The parliamentarians single handedly waived their mandate for political mileage. Further, in an unusual conduct of gross partisanship, MPs voted for clause which seeks to dispense with the public interviews of Judges to the satisfaction of the citizens to whom judicial authority is sourced. Without being economic with the truth, that is not the will of the people of Zimbabwe. Citizens need to actively participate in choosing who they deem most competent for the judicial panel. The passing of this proviso means, even a below par judicial officer can assume office . The entry ticket has been further reduced to absolute Presidential will, thus eroding quality judicial service delivery.
The Bill and the Parliamentarians After a series of advocacy against the Bill by the members of the public and the civil society alike, the National Assembly sill went on to vote for the Bill to pass . Applying the counter-majoritarian rule, the ruling party MPs bend to the whims of their political identity. Practice is that, whenever MPs are voted for, they cease to advance partisan politics, but cling to their Constitutional mandate which is to ably represent all the people of Zimbabwe without fear and/favor. True to Roscoe Pound’s American Realism, ‘What is’ has overridden by ‘what should have been’. While facilitating the amendment is legal because it is Constitutional per section 328, a broader view of Constitutionalism indicates otherwise. The broader view of Constitutionalism does not confine itself to the actual Constitutional proviso but, to what is in the best interests of democratic governance. It is Rule of law as opposed to Rule by law. While there is no accepted definition of Rule of law, there is a settled scholarly presumption that the former is positive in nature, with characteristics that resonate with justice, fairness and democracy. Democracy simply refers to a governance exercise where the will of the people is respected ,their voices heard and considered. However, this principle works best when power is allocated within the three arms of the Sate. Equally, this principle is useless when the arm of the State responsible for ensuring Democratic governance participates in the subversion of the same. This stage is what legal philosophers and political scientists refer to as Rule by Law. It is rule by law because the Legislature will be constitutionally exercising its mandate but, the outcome being a subversion of the will of the people to whom such power is drawn. Thus, true to Karl Marx, law becomes retains its class character as a weapon of mass authoritarianism. Having identified all those underlying consequences, the question poised to the reader will always be: Is this the protection of the Constitution and promotion of democratic governance that is being envisaged by section 119(1) of the Constitution? Munashe O’brian Gutu is a Law student at the University of Zimbabwe He writes in his personal capacity Twitter @barrister_gutu This should be only construed as an opinion piece, nothing further.