There is a fascinating question that scholars have long grappled with. Can adopting a new constitution lead to better democracy? Three such scholars, Todd A. Eisenstadt, A Carl LeVan and Tofigh Maboudi, recently explored this question in their global study of 138 constitutions from a 37 year period. They concluded that adopting Constitutions does not necessarily lead to better democracy for a country. Their findings showed that in too many countries, the Constitution-writing process excluded broad public consultation. As a result, the Constitution drafters were often able to grab power by codifying Constitutional benefits for themselves and their supporters. Unfortunately, this exact flaw may plague Zimbabwe. There, three political parties were part to drafting of the Constitution and the results are telling.

The current Zimbabwe’s Constitution was published in the Government Gazette on 22 May 2013. The Constitution came into operation on 22 August 2013 except for some parts that will come into effect in 2023. It is important to analyze whether this has led to better democracy. Words such as “impressed with the country’s new, democratic Constitution,” had been common since its inception. However, in some quarters the Constitution is usually touted as “a negotiated product between ZANU-PF led by former president Robert Mugabe and the two MDC formations led by the late Prime Minister Morgan Tsvangirai and Professor Arthur Mutambara that formed Government of National Unity (GNU) in 2009-2013.

A drafter’s product or a public document?

The drafters of the Constitution fell under a body called the Constitutional Parliamentary Select Committee (copac) which was co-chaired by ruling ZANU-PF’s Paul Mangwana, MDC-T’s Douglas Mwodzora and MDC’s Edward Mkhosi. These three led a team of negotiators of their respective parties that were in the inclusive government. Although there were consultations throughout the country which were hurried, can we therefore say “a negotiated product” is a reflective of the will and aspiration of the people? Can we safely say, there is no doubt that the people ratified a new constitution rooted in democratic principles- equality, freedom, security, economic opportunity, and the rule of law and a constitutional model that can serve as a model for others in the region and around the world.

As we reach five years of using the Constitution, key questions centered on the motivation for those who called for the new Constitution remain. Did the drafters of the constitution want to fortify the nation’s stability by fortifying democratic fabric, or whether, instead, they want to grab power by codifying benefits for themselves and their supporters? Inclusive and widespread participation and not the hashed public consultations would have helped reduce the risk of having “a negotiated Constitution” between ZANU-PF and the two MDC formations.

The notable sad development that affirm that Zimbabwe’s Constitution was a “negotiated product” is when drafted handed the document to the principals: former president Mugabe, the late prime minister Tsvangirai and Professor Welshmen Ncube, who immediately locked horns over sticking issues such as the appointment of governors and the dissolution of power to provinces. However, a few days later, Mugabe Ncube and Tsvangirai were to stun the nation announcing that they have reached an agreement. Mugabe was quoted by The Standard, January 20, 2013 (article titled: Mugabe outwits PM Tsvangirai again) as saying: “We have come to the conclusion of the exercise. We are generally agreed and the finalization of the draft is now being made. We have at last come to the end of this marathon exercise,” Mugabe said.

A. Eisenstadt, A Carl LeVan and Tofigh Maboudi divided constitution-making process into three phases: drafting, debating, and ratification. They concluded that it was the drafting phase which if conducted incorporating a broad representation of actors in a transparent manner that would result in lasting benefits for democracy. Sadly, in Zimbabwe the drafting phase was shouldered in some form of secrecy where only ZANU-PF and two MDC formations representatives would lock themselves away from public scrutiny only to come out with a final product ready for a referendum and approval by parliament.

“In other words, what matters is who is in the room when the Constitution is initially conceived. We feel this is because no amount of societal vetting after the fact can make up for incumbent government failures to incorporate a wide range of societal interests, citizens, and political groups at the moment dialog starts,” Eisenstadt et al wrote. Taking Eisenstadt, et al arguments as a guide, one can conclude that the Zimbabwe Constitution making process was not all inclusive as it was more of a “negotiated product” between the aforementioned three political parties to the Government of National Unity (GNU). However, since there was an inclusive government in place one can also argue that a “negotiated product” was inevitable to reach consensus.

Most analysts agree that Zimbabwe was able to draft a Constitution with political rights and civil liberties similar to those of the Western democracies. However, there has been slow pace in aligning the relevant laws with the Constitution 5 years later. In 2016 the General laws Amendment Act made a piecemeal alignment of over 100 pieces of legislation to the constitution. Who can forget the anger and anxiety caused by the partisan alignment to the constitution and fast tracking of the Local Government bill in 2016 that left some emotionally damaged? What of the electoral laws alignment to the constitution that is currently a subject for debate in parliament ahead of the harmonized elections in July/August?

The publication of the Constitution 22 May 2013 was received as a step forwards towards dismantling the prerogatives of dictators and hybrid regime of Robert Mugabe and as planting the seeds of democratic expectations and norms. However, five years later the provincial councils meant to decentralize power to the provinces are not functional. The current government has perpetuated the unnecessary if not unconstitutional appointment of provincial ministers. Sadly, the National Peace and Reconciliation Commission have only begun to be fully functional almost five years later, when it was supposed to have begun immediately. The commission has a life span of 10 years meaning that its mandate ends in 2023 although others argue that the 10 years can only start being counted from the date the National Peace and Reconciliation Act of 2017 became operational.

View the 2013 Zimbabwe Constitution here.