The Constitution "A New Perspective".
“A dark day for Zimbabwe,” words echoed by Adv Mahere after ED signed into to law the Constitutional amendments that give him extensive powers that not only give him more powers but which eliminate his accountability to the people of Zimbabwe and gives him control of all the 3 arms of the state (a nightmare in the hands of a dictator). He is in all but name the King of Zimbabwe now. The amendments and consequences thereof are excellently explained by Dr Magaisa in his BSR weekly publications. Reading said articles will leave any person of liberal persuasion in shock and in fear. If you are a Zimbabwean, Read it! With that said not withstanding the brave lawyers that have lodged legal challenges to the amendments the reaction in Zimbabwe has been the usual rumblings on twitter, mostly passive and in many ways ignorant. This would seem odd considering the doom that these amendments mean for Zimbabweans and the worsening disaster that will quickly follow. Fear is a huge factor in this but it seems that Zimbabweans do not know exactly what it all means and do not understand the consequences of having a corrupted Constitution or having it destroyed all together.
Meanwhile ZanuPf has shifted into the fifth gear in its desire to alter the Constitution. Only power matters to ZanuPf and the Constitution is merely a piece of legislation that they can manipulate to gain more power. Actually Constitutional amendments are not alien to ZanuPf, they have amended the Constitution several times through out their 41 years in power. ED’s administration has amended the Constitution 27 times in just 3 years. Strikingly all these amendments have been a mostly designed to gain ZanuPf more power and they are quite relentless towards the same. This also begs the question does ZanuPf even know what Constitutionalism is and what it means to have a Constitutional democracy? Regarding the recent Constitutional amendments ZanuPf’s justification of the same has revealed an insatiable appetite for power and a staggering lack of knowledge in Constitutional philosophy, principles and of our very own actual Constitution which they have a responsibility to protect.
So, what we have here is a nightmare scenario, a scenario in which two things are inevitable. That is the death of the Constitution and the annihilation of freedom for the people of Zimbabwe. So what then is a Constitution. There is numerous writing on the subject but it really seems it is harder for the common citizen to understand. I want gogo and sekuru at the rural areas to understand. I want the younglings in primary and high school to understand. I want Tindo and Ruvarashe to understand. Above all I want everyone to feel the spirit of Constitution for the Constitution is not merely a piece of paper but it is the spirit of our country authored by our hearts and souls. The principles and procedures as set out in a Constitution aren’t merely legal provisions which are drafted to implement legal provisions that must be adhered with sanctions attached for non compliance. The Constitution is the very heart and soul of the Nation. It is a living document that represents the essence of our values as a nation. It sets out our aspirations as a nation, our basic human rights, how we resolve disputes, how we develop laws that govern our state, assigns authority to various state institutions, facilitates the separation of powers (that is between the presidency, parliament and the judiciary) and sets out the various procedures that allows us to effect and protect all matters arising from its provisions. The Constitution in essence embodies the principles of the state, the basic rights of all citizens, and the processes of government. Furthermore it is a social contract between the government of the day and the citizens of a country. This document cannot thus be altered unilaterally by the government or any other Act of parliament especially Acts, acts or legal provisions that are not in line with the principles set out in it.
As a young boy growing up in the 90s while visiting my uncle he introduced me to the Terminator movie franchise. In these movies the world is under threat from a super computer (Sky Net) that is given artificial intelligence for the purpose of operating as an independent defense operating system that can make decisions and pretty much run the entire country’s governance for the purpose of defense from external or internal threats. The control Sky Net is given is subject to human programming which is designed in such a way that values human life and safety. Its programming is benevolent and places human life as its primary objective together with national defense. This is kind of what a Constitution is supposed to be like: “an artificial intelligence operating system programmed to protect human rights, control government power and guide the development of the legal order”. More importantly Sky Net’s programming cannot be easily changed and it has programming that allows it to protect itself from more insidious forces or people that may want to use it for harmful purposes. It is this kind of set up that results in Constitutional jurisprudence referring to a Constitution as a living document, a document that sets out how a state is governed. It is the supreme law of a state and all citizens, state institutions, private and public organizations must adhere to it. It is a sovereign document that has its programming and operates in a manner that allows it to govern mostly independent from external influence. It has mechanisms that allows it to protect itself from external influence more so insidious external influence.
Regardless of it’s sovereign status it still requires humans actors to activate its features most importantly its defense features. It does this by placing duties on all citizens, government, state institutions and other actors. Most Constitutions place a duty on the government to serve and protect the Constitution and its values. Unlike sky net that is a computer program and has a huge arsenal of civil and military assets at its disposal the Constitution has to rely on human actors to do its biding through different kind of institutions and organizations (state/government/private). What then if the very humans meant to enforce and protect it decide otherwise? Well the Constitution as mentioned herein is a living document. Its life is brought about by the people who poured into it their most sacred values and principles, “sugar and spice and everything nice as mentioned above.” When there are insidious forces that then seek to abuse, unilaterally change or destroy the Constitution it inevitably results in weaker people, institution and organizations being affected by such action as their freedoms, rights and dignity are affected. The Constitution then gives these persons rights, duties and protection that allow them to step up and take actions against the “bad guys”.
In the Terminator franchise Sky Net is given control of every aspect of Government, society and the military. However its developers knowing how powerful it is and how it can be manipulated had a defense arsenal that is not plugged to any computer system that can be accessed by Sky Net and that only humans can use. This arsenal could be used to defend against a corrupted and or compromised Sky Net. Likewise of the Constitution. In the event that it is “hacked” by bad guys (A dictatorship for example) it has defense mechanisms which cannot be corrupted by “the bad guys”. Constitutions especially modern Constitutions are based on natural law principles. Natural laws simply put are laws that are intrinsic (inherent/In built) to human nature. These laws are mostly in the form of human rights. These laws and values are the core of the Constitution and because they are intrinsic they do not necessarily need a Constitution to exist for them to have legal legitimacy. Human beings will always fight against injustice and abuse. This is the last defense of a Constitution.
A corrupted Constitution ceases to be a Constitution in as far as it's illegal or bad provisions are concerned. It loses it’s natural human programming and essence. When Sky Net was corrupted and developed an agenda that did not serve humanity there was no obligation to subscribe to its will. Actually humans gathered to have it destroyed because it became a threat to humanity itself and no longer represented the purpose for which it was made. Likewise of the Constitution. If a Constitution is corrupted and now has provisions that are inconsistent with the principles of good governance, human rights, separation of power and other such principles it becomes a harmful gateway for the abuse and pillaging of the nation as we have seen in Zimbabwe. After the second world war natural law jurisprudence saw a return to international and domestic legal paradigm. This therefore in short would mean that unjust Constitutional provisions and laws are not actually legitimate laws and do not “necessarily” need to be obeyed. Of course this position is depended on citizens uniting and refusing to obey such laws. As already mentioned without the participation or resistance of citizens, illegal or bad laws and provisions can become part of our Constitution: legitimized by our compliance and enforcement.
We as Zimbabweans have to understand the Constitution is not just the supreme law of our nation but the Constitution is us. We are the Constitutions. Its values and principles are engraved in our hearts and minds and souls. It is the living embodiment or our rights, dignity and aspirations as a country. When it is attacked we are in grave danger. Like Sky Net which got corrupted in the Terminator franchise, it led to the near obliteration of the human race. Maybe that is an extreme and out there example but if our Constitution is corrupted our nation will be in grave danger. The violence, kidnappings and killings (including a Genocide) which we have seen in Zimbabwe over the years have been as a result of the Constitution being violated and in many ways it could have been a lot worse if a Constitution did not exist at all. In 1930s Germany the Constitution was completely destroyed and we saw a global tragedy unlike anything this world has ever seen. We must seek to protect our Constitution with everything we have. This can be done through voting, participating in the political discourse of the country, learning about the Constitution and teaching the same to our peers, family and fellow citizens.