The Constitution of Zimbabwe is the supreme law of the country. Zimbabwe’s first constitution, which was written in London during September-December 1979 and which took effect at independence on April 18, 1980, secured majority rule for Zimbabweans. In 2013, Zimbabwe adopted a new constitution.
This document outlines the framework for the government, protects the rights of citizens, and sets the foundation for the legal system. This article provides a summary of the constitution, its historical context, key provisions, and amendments.
Historical Context
Under the constitution, white voters, registered on a separate roll, elected 20 of the 100 members of the House of Assembly. Although these members could not veto constitutional amendments, a unanimous vote was required during the first 10 years to alter the Declaration of Rights component of the constitution, which stipulated (among other matters) that, if land was acquired for settlement schemes, there must be “prompt payment of adequate compensation…remittable within a reasonable time to any country outside Zimbabwe.” The British insisted that there be a constitutional head of state, a president elected by the House of Assembly, and an executive prime minister and that citizenship of Zimbabwe be automatically available to anyone who was (or had the qualifications to be) a citizen of Rhodesia immediately before independence.
In 1987 the office of prime minister was eliminated, with executive power instead being vested solely in the president, and additional constitutional amendments throughout the years served to strengthen the role of the president. Also in 1987 the practice of setting aside legislative seats elected from the white roll ended, and white voters were incorporated into the common roll. The former Senate of 40 members was abolished with a constitutional amendment in 1990, and 50 members were added to the House of Assembly. The Senate was later reinstated in 2005. An amendment act passed in 2007 and effective with the 2008 elections increased the number of seats in both the House and the Senate and altered the allocation of seats.
In 2009 the constitution was amended to provide for the creation of a coalition government via the terms of the 2008 Global Political Agreement (GPA), which attempted to end a political crisis in Zimbabwe. The GPA also provided for the drafting of a new constitution, which, after some delay, was completed in early 2013. The draft contained many changes from the previous constitution, including a stronger parliament, the introduction of presidential term limits, the elimination of presidential immunity from prosecution after leaving office, the abolition of the prime minister post, and a devolution of power. The new constitution was passed via referendum on March 16, 2013, and signed into law on May 22, 2013.
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Government Structure
Under the 2013 constitution, Zimbabwe is a unitary republic. The head of state and government is the president, who is elected to a five-year term; the president can serve no more than two terms. The president is assisted by two vice presidents.
The parliament consists of the National Assembly and the Senate. The National Assembly normally has 210 members, all of whom are directly elected. For the first two parliaments elected after the promulgation of the 2013 constitution, however, the National Assembly has 270 seats, with the 60 additional seats reserved for women-6 from each of the 8 provinces and the 2 cities with provincial status-elected through a system of proportional representation. The Senate comprises 80 members: 60 (6 from each of the 8 provinces and the 2 cities with provincial status) elected by a party-list system of proportional representation, with men and women being listed alternately on every list; 16 traditional chiefs elected by the provincial assemblies of chiefs in the 8 provinces; 2 seats for the president and deputy president of the National Council of Chiefs (the administrative body of traditional chiefs); and 2 representatives of people with disabilities. All parliament members serve five-year terms.
The legislative authority of Zimbabwe vests in the President and parliament of Zimbabwe, which is the Primary Legislation by virtue of s116 and s117. The Legislature of Zimbabwe can confer powers on any authority to create binding laws. Currently the Legislature of Zimbabwe is a bicameral system consisting of a National Assembly and the Senate. Legislation brought through the National Assembly must be scrutinized by the Senate before the President assents to it. The method of passing legislation is entrenched in the Fifth Schedule of the Constitution. All legislation in Zimbabwe is styled Acts of Parliament or Statutes. Other authorities such as the President, acting unilaterally, and ministries can pass legislation known as Statutory Instruments, or Subsidiary Legislation.
For administrative purposes, Zimbabwe is divided into eight provinces and two cities with provincial status-Bulawayo and the capital, Harare-known as metropolitan provinces. The provinces and metropolitan provinces are further divided into districts. Provinces are administered by provincial councils; they are headed by a chairperson, who is elected by the council. Bulawayo and Harare are administered by metropolitan councils; the mayor of each city serves as a council chairperson.
Judicial System
Zimbabwe’s judicial system includes the Constitutional Court, which is the highest court in matters pertaining to the constitution; the Supreme Court, which is the highest court of appeal in all other matters; and the High Court, which has original jurisdiction in all civil and criminal matters and supervises the magistrates courts and other subordinate courts. There are also a Labour Court and an Administrative Court, as well as customary law courts, which adjudicate on matters of traditional law and custom.
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Precedent refers to past decisions of the superior courts. Precedents establish the legal position of cases tried in the courts and establish the reasoning for decisions made by the judges in each particular case. Conversely, precedents therefore guide the courts in making future decisions in similar cases brought before them. The maxim stare decisi at non-queta movere best sums up the use of case law in Zimbabwe. The maxim means to stand by old decisions and not disturb settled points. Supreme Court decisions in Zimbabwe are binding on all interior courts.
Key Provisions
Chapter 1 defines the Republic of Zimbabwe and states that there shall be a public seal for the Republic which shall be kept by the President. It lastly entrenches that the Constitution is the Supreme law. Chapter 3 deals with Citizenship and maintains that citizenship in Zimbabwe is by birth, descent, or registration. Dual citizenship is allowed for those who are citizens by birth. In terms of the Constitution, citizens have both rights and duties. They have a right to be protected by the State wherever they are and to receive passports, travelling documents and birth certificates.
How citizenship can be obtained has been further clarified by the new Constitution. In relation to citizenship by birth, one can attain citizenship if either one of his/her parents or grandparents are Zimbabwean citizen by birth or descent. The same applies in relation to citizenship by descent. There is material departure from the old Constitution’s provision with regards to citizenship by registration. The new provision provides that any person, who has been continuously and lawfully residing in Zimbabwe for at least ten years and satisfies the requirements set by an Act of Parliament, may apply to become a Zimbabwean citizen by registration. The new criteria set forth is the aspect of “lawfulness” and satisfactions of other requirements set in the relevant Act of Parliament. Also, a person who is married to a Zimbabwean citizen and who has been ordinarily residing in Zimbabwe for at least five years since the marriage is entitled, upon application, can become a Zimbabwean citizen by registration.
The customary law of Zimbabwe is generally unwritten. Customary law refers to the customs and practices of the tribes of Zimbabwe which were in practice since time immemorial. The customs must be certain, reasonable and must had attained the recognition of formal law. The constitution entrenches the recognition of African customary law. The new constitution explicitly recognizes customary law in various provisions. In its definition section, law is defined to include any unwritten law in force in Zimbabwe, including customary law. It further recognizes the role of the traditional leaders in resolving disputes amongst people in their communities in accordance with customary law. Most important is the aspect of establishment of customary law courts whose jurisdiction consists primarily in the application of customary law. Section 176 of the Constitution bestows power on Constitutional, Supreme and High courts to develop customary law, taking into account the interests of justice and the provisions of the Constitution.
Common law of Zimbabwe refers to the unwritten law or non-statutory law. Common law excludes the African customary Law. The common law of Zimbabwe is primarily the Roman-Dutch Law as per the provisions of section 192 of the Constitution of Zimbabwe. This provision reads that the law to be administered by the courts of Zimbabwe is the law that was in force on the effective date, as subsequently modified. The law that was in force includes Roman-Dutch Law as applied at the Cape of Good Hope on June 10, 1891. Common law, however, does not apply on criminal matters. This is by virtue of section 3 of the Criminal Law (Codification and Reform) Act, which unequivocally states that Roman-Dutch criminal law is inapplicable in all criminal matters in Zimbabwe.
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Amendments
Problematically, this constitution though negotiated, remained in force until the 22nd of May 2013 and had been amended a record nineteen times. These amendments were, for all intent and purposes meant to serve the interests of the rulers who negotiated the Lancaster document rather than advancing the wishes and aspirations of the people. The Constitutional Commission’s draft was also a regurgitation of the Lancaster House constitution and it sought to do nothing but consolidate the executive presidency of the 1987 amendments. Notwithstanding these naked truths, the processes were thrust out to the people as representative.
In 2009, COPAC conducted constitutional hearings in all the wards of the country and organized two All-Stakeholder Conferences. While acknowledging these efforts, it has been argued that there can be no valid claim of popular involvement in the process since the constitutional conferences and the outreaches were only symbolic and were marred by violence which stifled the intended open and democratic participation by the consulted masses. The body that drafted the constitution was chosen on party lines, a significant number of youths despite their majority did not attend outreaches meetings and foreign funders and actors allegedly influenced the process. On this basis, the claim that the constitutional review process in Zimbabwe was representative calls for empirical analysis.
The new constitution brought about tremendous changes to the number of recognized rights, freedoms, and the interpretation of the same. The protection afforded basically stretches from the narrow first-generation rights to recognition and protection of second- and third-generation rights. Part 1 of Chapter 4 provides for the application and interpretation of these rights. With regards to its application s45 provides for both horizontal and vertical application of the constitutional rights. In particular, it affords these rights to both natural and juristic persons.
Table 1: Key Features of the Zimbabwean Constitution
| Feature | Description |
|---|---|
| Supremacy of the Constitution | The Constitution is the supreme law of the land, and any law inconsistent with it is invalid. |
| Citizenship | Citizenship is by birth, descent, or registration, with dual citizenship allowed for those who are citizens by birth. |
| Fundamental Rights | Guarantees a wide range of rights and freedoms, including first, second, and third-generation rights. |
| Separation of Powers | Divides governmental power among the executive, legislative, and judicial branches. |
| Recognition of Customary Law | Recognizes and incorporates African customary law into the legal system. |
Zimbabwe Constitutional changes | Opposition says changes will shrink the country's democratic space
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