What Constitutionalism really means*

All eyes were on South Africa and its Constitutional Court on Thursday, 31st March. For two long years, South Africans have been waiting to see whether the findings of the Public Protector’s report on the expenditure at President Jacob Zuma’s Nkandla residence would be upheld by the courts. Alternatively, would Jacob Zuma’s complex manoeuvrings end up in yet another failed attempt to hold an African leader to account?

In Zimbabwe, it was particularly poignant to get the decision, and see the virtue of a country not only having courts robust enough to deal with the executive, but, even more importantly, that the principle of constitutionalism was being defended so strongly. Whilst it is obviously important that Jacob Zuma “pay back the money”, it is actually the basis for his having to do so that is so encouraging for us in Zimbabwe. Look at the significant findings in the Constitutional Court’s decision:

  • The remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the Constitution is binding.
  • The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
  • The President must reprimand the Ministers involved pursuant to paragraph 11.1.3 of the Public Protector’s remedial action.
  • The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.

The Constitutional Court has found the President and the National Assembly guilty of disrespecting the Constitution, and that some Ministers in the government require reprimanding.

Without going into the details of why the court made this decision, or speculating what might now happen, it is useful to contrast the two countries that bestride the Limpopo. In one we have the strongest possible demonstration that constitutionalism is fundamental to the

existence of the state, and that no-one is above the law and the constitution. Most importantly, no-one can avoid the courts. Bet we see a small recovery in the Rand as South Africa demonstrates unequivocally that the Rule of Law is paramount.

In the other, we have no evidence that there is any respect for the Constitution of Zimbabwe, have endless evidence that the government and the executive act in contempt of the law, and have courts that exceedingly rarely will challenge the government and the executive within the confines of the law. We have no Zimbabwe Dollar any more, but bet that capital fight continues unabated as Zimbabwe demonstrates unequivocally Rule by Law, underpinned by contempt for the Constitution.

Harsh words, you might say, but the evidence is there for all to see. In fact it would take a very long article, a monograph at least, to detail all the examples in which ZANU PF and the government have no respect for constitutionalism. And, sadly, all too often, they are aided and abetted by the courts.

Start with the broad canvas. When the Constitution came into being in 2013, almost all the provisions were immediately applicable, which meant that any law or regulation that was prima facie ultra vires the Constitution should not have been applied by the government and new legislation should have been passed or old legislation amended. The principle of constitutionalism requires that the executive and the government should take the lead in ensuring that no-one acts contrary to the provision of the Constitution. It does not mean that the executive and the government carry on applying unconstitutional law until pulled up by a citizen or an organisation. This was the point of the judgement by the South African Constitutional Court: Jacob Zuma, more than anyone, had a duty to scrupulously take the lead in adhering to the constitution.

Not so in Zimbabwe.

Take the shenanigans around the 2013 elections, which took place after the constitution came into effect. President Mugabe used the Presidential Powers (Temporary Measures)Act (PPTMA) to effect a number of amendments to the Electoral Act in order to resolve problems caused by the precipitate declaration of the date for the election. This was ultra vires the Constitution: according to the Constitution, amendments to the Electoral Act must be done by an Act of Parliament. This use of PPTMA was challenged, and, remarkably, dismissed by the Zimbabwean Constitutional Court. Actually, the applications were summarily dismissed and we are still waiting for the judgement, three years on. Some adherence by the executive, the government and the courts to the principle of constitutionalism!

How about another example, the legislation proposed for several of the so-called Independent Commissions, and especially the Gender and the National Peace and Reconciliation Commissions (NPRC). Neither the Gender Commission Act nor the NPRC Bill show the slightest concern for constitutionalism, as a recent analysis shows very clearly. It is evident that the government seeks by all means to limit the independence of Independent Commissions, and, in the case of the Gender Commission, virtually relegating this Commission to the status of a department in a ministry.

We can go on and on demonstrating the lack of commitment to constitutionalism, and, even worse, the blunt violation of the Constitution, but the point is obvious. Perhaps the main issue here is that Zimbabwe lacks the kind of political settlement that underpinned the new South African state, and central to that settlement, so beautifully exemplified by the Constitutional Court decision on Nkandla, was the commitment to constitutionalism. And so we live in hope that both sides of the Limpopo will one day share the values that maintain a vibrant democracy.

*Prepared by Tony Reeler, Senior Researcher.

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