Chaotic and Muddled Constitution-Making in Zimbabwe

23rd July 2009 By: ISS, Institute for Security Studies

How do we understand the process of legal and political redefinition that is taking place in Zimbabwe? For many democrats, the events unfolding in Zimbabwe constitute both a challenge and an opportunity to better comprehend a yet to be categorized political development. Both the scholarly and activist communities have notoriously failed to predict the survival of such a rogue regime. The one thing we can certainly do is perhaps understand better the emergence of the new ‘imposed' political order. Like with all arranged marriages, the architects always need to play a constant surveillance role to ensure that the marriage hangs in there, even if it is by a flimsy thread. The main task is thus to elaborate a set of analytical constructs and hypotheses that can exude some sense of order on what has been an endless and constantly mutating unintelligible echo and anger.

Zimbabwe takes us back to what John Elster observed in the constitution making process decades ago. From the late eighteenth century, there have been waves of constitution-making just like there have been waves of democratisation- and yet Zimbabwe remains in a very fragile situation. Its history has gone the full circle of political evolution -capitalism, a peasant led revolution, socialist flirtations, some controlled market stage, back to some ‘organized chaos' and finally is on the road to what we can just call normalcy. What is clear is that the simultaneous transitions to democracy and the market economy never stopped.

With regard to legitimate constitution-making, Zimbabwe will only get it right when we all understand the mechanisms by which constitutions come into being. An analysis of the motivations of the main parties involved lies at the core of the process and Elster was quite right when he pointed out that interest, reason (understood as impartial concern for the common good) and passion, all have a powerful influence on the constitution making process.

To Elster, interest-group pluralism is obviously an important force as well as the concern for the common good. This makes it essential to guard against popular movements based on zealous feelings of settling of old scores, resentment, or in this case, questioning previous allocative decisions. Constitution making has a retrospective element as well as a futuristic component and the way in which Zimbabwe will deal with its past will probably turn out to be a key decisive factor in its ability to move forward.

There are key elements that are unavoidable in the constitution-making process such as arguing and bargaining and these are yet to become a part of Zimbabwe's political culture. This alone is a formidable task considering that there are two generations that have been socialized into a culture of settling disputes violently. An adopted ala carte constitution that would incorporate elements from the various existing models will not work effectively in the country given its various strands of fragmented ideologies. Whereas such precedents can serve as pivotal points for resolving conflicts, many model and replicas are likely to be influential with respect to the establishment of the "machinery of government" - the relation between president, government, parliament, and the courts and this is where the crux of the matter is for Zimbabwe. An unwarranted fear of the content is determining the process. It appears that it is difficult to agree on the adoption of a large number of positive rights that reflect the concern for a secure, guaranteed decent life that is an enduring legacy of democracy such as the right to freedom (in all its dimensions), health, education and security.

What is happening in Zimbabwe forces us to ask: is it the kind of bargaining model where constant and real threats of withdrawal are ever present and will it evolve into some rational debate where deliberative democracy can be nurtured? Last week Zimbabwe's human rights lawyers were considering pulling out of participation in drafting a new constitution because they were incensed that 40 percent of the delegates were politicians while civil right activists and other non-governmental organizations made up a small minority of the 4,000 delegates. Violent disruptions have occurred in this process and the blame game continues. Whatever happens next, the influence of the more recent past experiences and events cannot be underestimated. And in the absence of trust, progress will be painful and quite slow.

"Quasi-constitutional issues" in particular will be important in Zimbabwe's unfolding political dispensation. The role of the central bank, the state media and other institutions and companies immediately spring to the fore. Will there be a hands-off policy with respect to these institutions, or will they remain as policy tools? In short: Will the new polity be infused by the "spirit of constitutionalism" in which basic political institutions will be underpinned by a solid foundation for policy rather than systems that can be manipulated? For the case of Zimbabwe is indeed unique and the task thus becomes that of tackling existing constitution making theories with actual experiences, and more importantly, spawning new theories since the long accepted wisdom seems inadequate. Zimbabwe faces problems that may appear to be insurmountable. It faces the task of rebuilding a new civil society that understands civic duty and its voluntary nature, it must replace the atomized former dominant ruling party; create a new political system hinged on democracy, constitutionalism and human rights; and a new economic system, based on respect for private property. Many of its citizens are also traumatised by years of violence in every form. This is a task that requires a deep understanding of social and political transformation. This is in concurrence with Habermas's assertion that "..we are not merely heirs to a long established practice of constitution making.., the constitutional question does not provide the key to the main problem we have to solve."

Written by: Dr Annie Barbara Chikwanha, AHSI-ISS, Addis Ababa Office