■ Constitutional history of Zimbabwe

Formerly Southern Rhodesia and the Republic of Rhodesia, modern 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 1965. 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 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 ultimately fueled the colonial and liberation wars launched 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 the latter's Zimbabwe African National Congress (ZANU) won a landslide victory in the general elections in February 1980. Originally, a 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, represented by 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 company violated the terms of the concession, overthrew 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 declonization period

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 leave out major stakeholders. This pattern would result in two failed reform processes. One of these produced the Rhodesian independence constitution in 1965, which was designed by the Rhodesian settler government to prevent decolonization. The result was a 15-year civil war that would 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 in December 1979,  ending the civil war and paving the way for independence. Within a year, independence was granted, elections were held and the first independence government was formed by the Zimbabwe African Peoples' Union (ZAPU) under a fragile coalition headed by Nkomo.

Constitutional development in the post independence era

Amendments to the 1980 Constitution

The 1980 constitution was a document established through an Act of the British Parliament and given to Zimbabwe rather than a product of an inclusive participatory process. As such, it naturally established the Westminster style system,   whose hallmark if the supremacy of the parliament over the executive. Furthermore, the constitution, though designed to end the 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 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, none of which had been through a referendum or included popular participation. At times, the motives for the amendments were purely political and were only aimed at entrenching Mugabe 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, 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 with a presidential system. Of all the amendments, the most controversial to date, perhaps, remains the Constitution of Zimbabwe Amendment (No.17) Act signed into law on September 12, 2005. It created the fast track process, which nationalized acquired farmland and deprived original owners of the right to challenge the expropriation in court.

Multipartism and constitutional developments in the post Cold War era

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 by those both in and outside of the country as becoming more dictatorial and ineffective. The government sponsored the Economic Structural Adjustment Programme in the 1990s, which resulted in grave economic hardships and public disillusionment as impunity became 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 objectives 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  authorised the seizure of white farms without compensation, despite judicial rulings of the unconstitutionality of the move.

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), as opposed 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 constitution 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. Arguing that the draft failed to reflect the views of the people taken during the public consultation process and created an overly powerful executive, weak parliament, and inadequate human rights protection, the NCA and the MDC mobilized a massive civil society campaign against the draft. The result was a  “No” vote, which, combined with the MDC's significant improvement of successes in the general elections the same year, shook the morale of a ZANU –PF-dominated government, which had overestimated its popularity with the people.

Following this, Zimbabwe witnessed great socio-economic and political decline. The country significantly regressed away from democratic practice and governance as officials resorted to intimidation and the use of force.

The 2007 constitutional process and the Kariba draft Constitution

Seven years later, the government, unable to curb rising domestic and international pressure to democratize, made yet another attempt at institutional reform. In September 2007, representatives of the ZANU-PF and the two factions of the MDC (which had by then split) met and wrote a new draft in a highly clouded process. This is known as the 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, suspend human rights, dissolve parliament, and appoint all public officials. Overall, the president dominated other branches of the government. The Kariba draft was rejected for two main reasons. Firstly, it was the product of a very secretive process; based neither on consensus nor public participation. Secondly, the executive structure in place ensured that parliament and the judiciary remained very weak institutions dominated and controlled by the executive. It was argued that the Kariba draft was for all intents and purposes a repackaging of the Constitutional Commission draft rejected in the 2000 referendum, and thereby rendering the intent of its drafters questionable. Although the draft charter never saw the light of day as a final charter, it has resurfaced again, amidst controversy, as a model document for the current process.

Constitutional developments in 2009

In March 2008, following an unprecedented loss in parliamentary and presidential elections widely believed to have been won by the MDC of Morgan Tsvangirai, violence erupted as the Mugabe led 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 brokered by the Southern African Development Community (SADC), which ended more than six months of political violence. This was the Global Political Agreements (GPA) that gave birth to Zimbabwe's 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 in a process driven by the Zimbabwean Parliament. The process is underway amidst implementation challenges of the Agreement and wrangling between the government, which wants the document to once more be modeled on the Kariba draft, and an MDC and civil society sector firmly opposed to such intentions. Although most of the deadlines in the process have so far been met, the process seems to be in a political deadlock due to political wrangling and a lack of resources. The latter is attributed to lack of clarity at the political level about who is driving the process, which has resulted in donor confusion on where to channel resources and sometimes a complete reluctance to donate.