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3. Reflections on the Significance of Constitutions & Constitutionalism for Zimbabwe
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63 Reflections on the Significance of Constitutions & Constitutionalism for Zimbabwe Greg Linington 3 Introduction What is the significance of a Constitution in the affairs of a state? Section 3 of Zimbabwe’s current Constitution provides an answer: ‘This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.’ In other words, the Constitution is sovereign and all state organs operate under it, having only those powers it confers upon them, whether directly or by laws authorised by, and consistent with, it. Parliament, too, is subject to the Constitution. In Chairman of the Public Service Commission and Others v Zimbabwe Teachers Association and Others,1 an important judgment handed down in 1996, Zimbabwe’s Supreme Court said: ‘Zimbabwe, unlike Great Britain, is not a parliamentary democracy. It is a constitutional democracy. The centrepiece of our democracy is not a sovereign parliament but a supreme law (the Constitution).’2 In another Supreme Court decision, Smith v Mutasa NO and Another,3 Enoch Dumbutshena , then Zimbabwe’s Chief Justice, said: ‘The Constitution of Zimbabwe is the supreme law of the land. It is true that Parliament is supreme in the legislative field assigned to it by the Constitution, but even then Parliament cannot step outside the bounds prescribed to it by the Constitution.’4 Parliament can enact laws, but only because it is empowered to do so by the Constitution. Moreover, when exercising 64 REFLECTIONS ON THE SIGNIFICANCE OF CONSTITUTIONS … this power, Parliament must follow the procedural requirements set out in the Constitution. The President is also a creature of the Constitution, at least as far as the law is concerned. That document establishes the powers of the office and the parameters within which they ought to be exercised. Those powers are currently vast and for the most part not subject to meaningful constitutional restraints.5 Such restraints as do exist are often not upheld or enforced properly. This is a problem that lies at the heart of Zimbabwe’s constitutional crisis and ought of course to be addressed during the Constitution-making process. Whether this will in fact happen remains to be seen. The point was made above that laws inconsistent with the Constitution are void. This implies the existence of a mechanism for determining whether such inconsistency is present. That mechanism is the judiciary. In the course of deciding whether impugned laws are inconsistent with the Constitution, the courts – and particularly the Supreme Court – perform (or ought to perform) the broader function of acting as the guardians of the Constitution. Of course, in order to perform this function properly the judiciary must be a genuinely independent institution, manned by competent judges who conscientiously address matters brought before them. Ensuring that a truly independent judiciary is established and maintained is central to the Constitution-making process. In fact, the absence of an independent judiciary would in itself undermine the credibility of a new Constitution . By assigning duties and responsibilities to government organs, a Constitution transforms naked power into lawful power.6 The way in which the exercise of this power is limited and controlled is known as constitutionalism. That is, constitutionalism restricts what governments can do, and how they go about doing what they are authorised to do. The relationship between constitutionalism and democracy is not always an easy one, principally because a Constitution entrenching a particular system of constitutionalism is usually very difficult to change or amend. Normally, a legislature will only be empowered to amend a Constitution if it follows a special procedure involving a super (rather than a simple) majority. This does not sit easily with the idea that democracy means the rule of the majority. How are we to justify constitutionalism when it seems to thwart (at least on some [3.139.97.157] Project MUSE (2024-04-17 21:13 GMT) 65 Greg Linington issues) the will of the majority? This is what is known as the counter majoritarian dilemma. Stephen Holmes, a proponent of the counter-majoritarian position, says that ‘the basic function of a Constitution is to remove certain decisions from the [ordinary] democratic process, that is, to tie the community’s hands’.7 Citing American Supreme Court justice Robert Jackson in West Virginia State Board of Execution v Barnette, he says: The very purpose of a [Constitution is] to withdraw certain subjects from the vicissitudes of political controversy, to place...