University of Zimbabwe Student Law Review Journal Vol II

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Author: 
University of Zimbabwe Student Law Review Editorial Team
Journal Citation: 
UZSLRJ II
Media Neutral Citation: 
UZSLRJ II
Publication Date: 
01 October 2014

This journal comes at a historic time in Zimbabwe’s legal field, over a year
after the adoption of a new Constitution on 16th March 2013. The path to this
historic occasion remains littered with political, legal, social pitfalls and counter
narratives. Zimbabwe’s constitution making history dates back to the preindependence
era but for purposes of celebrating this supposedly home-grown
Constitution, lets confine our arguments to post-independence. An
independent Zimbabwe was ushered through a protracted armed liberation
struggle, sealed by a peace agreement in the form of the Lancaster House
Constitution. The Lancaster House Constitution was more of a readily
available constitution template for former British colonies, with modifications to
suit the contextual nuances. For all intents and purposes, the Lancaster House
Constitution was a ceasefire document whose values and ethos were meant to
safeguard the interests of the erstwhile colonial masters while entrenching the
incoming black majority government. A delicate balance signifying the
complexities of political transitions.
The newly elected government within a few years of its reign had managed to
bulldoze several amendments to the Lancaster House Constitution justified by
varied legal and political interests. The amendments of interest focused on the
executive presidency and the bill of rights. The judicial guarantees and
enforcement of the rights were undermined as the Executive used its political
party parliamentary majority to reverse judicial decisions enhancing the
enjoyment of fundamental rights. Constitutional checks and balances were
effectively overridden by excessive Executive and single party legislative
dominance. By the time it was repealed, the Lancaster House Constitution had
recorded 19 amendments, an average of one amendment every other 1, 7
years, possibly signifying the lack of acceptance and ownership of that
constitution or mere political expediency.
Prior to the adoption of the 2013 Constitution, civil society and opposition
political parties had successfully stalled the government lead Constitutional
Commission exercise through a vote no campaign. Again, the merits and
demerits of that no vote are disputable. Fast forward to 2009, the Global
Political Agreement between the major political parties spelt out the need to
write a new constitution as part of ushering in a political dispensation whose
electoral legitimacy was not to be contested. The interests for political parties
were clear, power retention through acceptable legitimate means. The
average person who participated in this process was probably uninterested in
the political detail but inadvertently compelled to tow a particular line. The
process was contested and the contents were equally left to the political
parties to resolve through a technical drafting team.
Aside the shenanigans and political manoeuvring that ushered the 2013
Constitution, one should give due to the contents in particular the fairly
expansive bill of rights, which introduced economic and cultural rights.
Zimbabwe’s legal field had for long been dominated by civil and political rights,
with economic and cultural rights viewed as peripheral and approached from a
developmental perspective, if at all. Local human rights advocates were
trapped by the political environment to focus more on political rights, excuse
being that no local law recognised such rights, despite the 1990 ratification of
the International Covenant on Economic Social and Cultural Rights (ICESCR).
Lawyers and political scientists who dominated the human rights discourse
viewed rights as “normative, idealistic and individualists”, while development
practitioners, economists and social scientists viewed rights as “programmatic,
empirical, consequentialist and aggregative”. Over the years and in an effort to
address the racial imbalances, Zimbabwe adopted several economic policies
and blueprints, unfortunately some of those policies were inimical to the
enjoyment of economic rights. The major disaster being the Bretton Woods
influenced Economic Structural Adjustment Programme (ESAP) that
contributed immensely to the decline of basic social indices. The ESAP was
celebrated for achieving negative growth, “increased poverty from afflicting
40.4% of households in 1990/91 to 63.3% by 1995/96 and debt service ratio
averaged 27.5% during the 1991-1995 period”. The much taunted policies:
Health for All, Education for All and Housing for All by 2000 were obliterated.
Now that we have a Constitution that enshrines these rights, are we likely to
see a deliberate approach in their realization and enforcement by the
executive and the judiciary respectively? In the absence of a deliberate
approach for national policies, budgets, economic blueprints and
implementation frameworks to place these rights at the centre, I am afraid that
these rights are in danger of neglect. The attention to the normative and
idealist aspects of these rights that lawyers, law students and human rights
advocates have to incorporate the pragmatic and empirical approaches of the
economists and social scientists.

Regulation of human behaviour is the uppermost understanding of the role of
law, but in our current context, the law yearns to be a tool for development and
social transformation. For the Constitution to become a lived reality, a certain
level of legal exploration, judicial activism and tolerance from the executive will
be required. This will nurture and encourage constitutionalism. This journal
offers a platform for us to stretch our imagination, stretch our legal theories,
and create discomfort with the present conditions of adherence and
recognition of economic rights. Let us celebrate these changes fully aware of
the task ahead, as it will require perseverance and resoluteness of all
concerned, including fusion of legal theory with pragmatism to create a
potential for full human development. Let me encourage you to challenge
oneself to locate your contribution and efforts towards the attainment and
realization of a nation that respects the rule of law but more importantly
recognizes and utilizes the potency of law as a tool for development,
elimination of want and fear.