By Rejoice Ngwenya
A UNDP colleague heard that I have interest in constitutional reform, exciting my intellect in her doctorate on human security. Our discussion centred on the inexplicable link between the subject and ‘constitutionalism’, aspects I am tempted to put in writing. This link cannot just be left to loiter in the realm of verbal discourse, especially given Zimbabwe’s pariah status. One can argue that in Somalia’s case, an ‘Islamic constitution’ centred on human behaviour seen through a prism of ‘Sharia Law’ results in skewed application of justice that emphasises punishment rather than rehabilitation. In the Sudan case, fragmentation is traced to conflicting interpretations of ‘laws’ which pit Christians against so-called ‘ideal’ Islamic norms. In both countries, there is endemic lawlessness – proof that where a ‘good constitution’ is absent, ‘human security’ remains under threat.
To understand the dependency of human security on constitutionalism, I rely on Wikipedia’s assertion that "a people-centred view of security is necessary for national, regional and global
stability." Constitutionalism generally is perceived from a context of "elaborating the principle that the authority of government derives from and is limited by a body of fundamental law" and "proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials" [David Fellman]. Therefore a ‘legitimate’ government attracts respect from its citizenry who generally cooperate and participate in implementing its policies thus promoting stability – an enabler of human development.
Zimbabwe’s 1979 Lancaster House agreement ushered an era of ‘majoritarian constitutionalism’, presumed to have enhanced human security. The mid-1980s were tarnished by Gukurahundi, yet the first decade marked improvement in standards of living. However, Zimbabwe’s decline began when the ruling ZANU-PF assumed a centrist style of governance enabled by amendments to the constitution giving Robert Mugabe excessive powers with widespread arbitrary use of authority. The 18 amendments to the constitution led to
agitation of civil society who eventually demanded reform. This new ‘movement’
brought multi-partism challenging the status quo, hence Mugabe over reacted, abusing the already cumbersome constitutional powers to put in place a battery of ‘anti-human’ legislation. This ‘constitutional deficiency’ encouraged dictatorship, unlawful deployment of troops to DRC, expropriation of commercial farms and use of security forces to subdue liberties.
The result was a devastating evaporation of ‘human security’, manifested in food shortages, unemployment, displacement and deprivation. Zimbabwe accrued pariah state status and demands to restore individual liberties. In pursuing a modern approach to constitutionalism, Zimbabwe’s 2008 Coalition Government borrowed from Buchanan that "a constitution, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions and to balance interests of the state and society against those of individuals and their constitutional rights to personal freedom and private happiness." Zimbabweans inadvertently admitted how constitutional consistency has a positive effect on the well being of citizens.
South Africa has a liberal constitution, yet questions are raised on how effective ‘good constitutions’ are at enhancing human security. The country is considered as one of the most stable, with a sophisticated infrastructure and ‘high standards of living’. However, human security is more than just a high GDP. Amidst that, South Africa is afflicted by high levels of poverty and unemployment. The ruling ANC , has been accused of intolerance to organised opposition, corruption and totally incapable of stemming the tide of domestic violence, crime and poor service delivery. ANC- Youth League Julius Malema boasts about ‘land reform’
and nationalisation – so one is tempted to agree with libertarian thinker Murray Rothbard "that constitutions are incapable of restraining governments and do not protect the rights of citizens
from their governments."
At a conference on constitutionalism and human security hosted by Inter Africa Group 2007
in Addis Ababa: [Since] " it is widely argued that constitutionalism is a principle that upholds a system of governance based on the consent of the governed and anchored in agreed on rules and procedures…" one can only assume this state of ‘consent’ and ‘agreement’ are enablers of human security achieved through constitutional stability. "… [I]t aims at bringing about an overall situation of societal wellbeing in an environment marked by harmony, credibility, and predictability of the socio-economic and political order grounded on the rule of law. A well established system characterized by prevalence of human security adds strength to the consolidation of constitutionalism substantiated by positive attitudes and attendant practices signified by support and defence in its favour."
Assumption by colonialists that lack of ‘written’ constitutions prior to the annexation of Zimbabwe in the 1890s may have been a cause of tribal ‘anarchy’ is misguided. History is replete with examples of how chieftainships in the Munhumutapa kingdom and the later Mzilikazi era were guided by ‘oral’ customary laws and traditions that encouraged a sense of ‘regimented’ good governance. To argue that because of tribal skirmishes between rival clans is a manifestation of human ‘insecurity’ is akin to saying the Second World War was caused by absenteeism of constitutionalism in Europe. The monarchical nature of constitutionalism in pre-colonial Zimbabwe had a more positive effect on human security than the ‘Westminster’ type imposed by British colonialists who gave rise to African nationalism and liberation wars. But then, Robert Mugabe, who assumed power via a legitimate post-colonial constitutional order, imposed governance based on violent coercion, resulting in human insecurity. One can therefore conclude that even a good constitution, in the hands of a dictator, skewed interpretation can cause human insecurity.
Rejoice Ngwenya is President of Zimbabwean think tank, Coalition for Liberal Market Reforms and an associate of AfricanLiberty.org. This article is syndicated by AfricanLiberty.org