O Level Revision : History - The Constitution of Zimbabwe

Background to the  Constitution

• It was drafted and signed in London at the Lancaster House Conference held between September and December 1979.
• There were three delegations to the Conference:

-     The British delegation led by Lord Carrington who was the chairman of the Conference and the British Foreign Secretary.

-     The  Zimbabwe-Rhodesia  delegation  led  by Bishop Muzorewa which included Ian Smith and his team.

-     The  Patriotic  Front  delegation  which  was jointly led by Robert Mugabe and Joshua Nkomo.

• Over  the  years  this  Constitution  underwent  a number of amendments.

• A  new   Constitution   of   Zimbabwe   was   later developed and came into effect in 2013.

Purpose/Functions of the  constitution

• The constitution is the supreme law of a nation.
• Stipulates how a nation must be run.
• Stipulates who qualifies to be a citizen and how one loses that citizenship.

• Gives guidelines on how to run the state.
• Outlines the  powers  of  the  different  arms  of government – the Executive, Legislature and Judiciary.
• Defines the powers of security institutions – the army, police, prison service.

• Protects citizens from abuse.
• Protects people’s fundamental freedoms and rights.
• Regulates political processes.
• Gives legitimacy to a government.

Sections of the  Constitution of Zimbabwe

The  supreme law

• The constitution is the supreme law / highest or most important law of Zimbabwe.

• All laws must agree with it.
• Any other law that does not agree with it is null and void (invalid).

• Anything that  agrees  with  the  constitution  is lawful and constitutional and anything that does not agree with the constitution is unlawful and unconstitutional.

Citizenship

• A citizen is a member of a country, state or nation.
• A citizen  gives  full  loyalty,  owes  allegiance, pledges to defend the country against enemies and to serve it at all times.
• A citizen expects to get protection, food, education and employment from his/her country.

• A person’s citizenship is his/her nationality.
• Citizenship    gives    a    person    his/her    duties, responsibilities, rights and privileges.

• All citizens are equally entitled to:

-     protection by the State;

-     passports and other travel documents;

-     birth certificates and other identity documents issued by the state.

• The Constitution spells out conditions:

-     to be a Zimbabwean citizen with full rights;

-     for one to lose citizenship.

• A Citizenship  and  Immigration  Board  must  be established by Parliament to deal with matters of citizenship and work permits.
• Zimbabwean  citizenship  is  by  birth,  descent  or registration.

(a)  Citizenship by birth

• Citizens by birth are persons:

-     who are born in Zimbabwe by a mother or a father who was a Zimbabwean citizen or any of their grandparents was a Zimbabwean citizen by birth or descent; or

-     who  if  born  outside  Zimbabwe,  either  of their parents was a Zimbabwean citizen and ordinarily resident in Zimbabwe but working outside the country for the State or international organisation; or

-     who, when found in Zimbabwe, are children under the age of 15 years and their nationality and parents are known;

-     who were born in Zimbabwe before coming into force of this Constitution and one or both of their parents was a citizen of a country which is a member of the Southern African Development Community and was ordinarily resident in Zimbabwe.

• Dual citizenship  is  automatically  permitted  in respect  of  Zimbabweans  by  birth.  Only  minors can have dual citizenship but must make a choice of which citizenship to keep within one year of turning 18 years old.
• Citizenship  by  birth  may  be  revoked  if  it  was acquired by:

-     fraud;

-     false representation; or

-     concealment of a material fact.

(b)  Citizenship by descent

• A person born outside Zimbabwe can become a Zimbabwean citizen:

-     if born of either a mother or father who was a Zimbabwean citizen by birth or descent and their birth is registered in Zimbabwe; or

-     any of their grandparents was a Zimbabwean citizen by birth or descent and their birth is registered in Zimbabwe.

• A law may prohibit dual citizenship in respect of citizens by descent.

(c)  Citizenship by registration

• Citizens by  registration  are  persons  who,  on application,    have   been   granted   Zimbabwean citizenship. Registration can be by:

-     marriage:    when    a    foreigner    marries    a Zimbabwean citizen;

-     adoption: when a Zimbabwean citizen adopts a child;

-     a   person   who   has   stayed   in   Zimbabwe continuously for five years.

• Citizenship by registration can be withdrawn if:

-     it was acquired by fraud;

-     it was acquired by false representation;

-     it was acquired by concealment of material fact; or

-     the  person  trades,  communicates,  assists  or associates with a business that assisted an enemy of Zimbabwe during a war.

• A law may prohibit dual citizenship in respect of citizens by registration.

• Citizenship  may  not  be  revoked  if  the  person concerned would become stateless.

Declaration of  Rights

• Every  person  and  the  State  are  bound  by  the Declaration of Rights.

• Everyone in  Zimbabwe  is  entitled  to  enjoy  the fundamental rights and freedoms of the individual whatever his/her race, tribe, sex, place of origin, political opinions, colour of skin and creed (religious beliefs).
• Rights come with responsibilities.
• The  individual   must   respect   the   rights   and freedoms of others and abide by the Constitution of Zimbabwe.
• The Constitution gives everyone protection to these rights and freedoms.
• Rights are not absolute. They can be limited so that when you enjoy your rights and freedoms you do not violate other people’s rights and freedoms.
• All  democratic  countries  have  Declaration  of Rights in their constitutions.

• Most  wars  fought  were  based  on  violation  of people’s rights.

Rights and  Freedoms

• Every person has a right to life but: 

-     the  law  may  permit  the  death  penalty  for murder in aggravating circumstances;

-     the death penalty may not be imposed on a person who was less than 21 years or more than 70 years when the offence was committed;

-     the  right  of  the  unborn  child  is  protected.

Abortion is prohibited by law.

• Every person has a right to personal liberty and may not be detained without trial.
• A person who has been arrested or detained must:

-     be informed of the reason for the arrest or detention;

-     be permitted to contact their relative or lawyer at the expense of the state;

-     at  their  expense,  consult  in  private  with  a lawyer and a doctor of their choice;

-     be treated humanely;

-     Be brought before a court within 48 hours;

-     have the right to remain silent;

-     not   be   forced   to   make   a   confession   or admission.

• A person  who  has  been  illegally  arrested  or detained is entitled to compensation from the person responsible for the arrest or detention.
• Every person has inherent dignity and a right to have that dignity respected.

• No person shall be subjected to slavery or servitude or to perform forced labour;
• All persons have a right before the law.
• Every person has a right to privacy:

-     their home, premises or property may not be entered or searched without their permission;

-     their property may not be seized;

-     the privacy of their communication must not be infringed;

-     their health condition must not be disclosed without their permission.

• Every person has a right to freedom of assembly and association.
• Every person has a right to freedom of expression.

These are just some of the rights and freedoms contained in the constitution. Make an effort to get a copy of the Constitution of Zimbabwe for a full list of the rights and freedoms and other provisions of the constitution, not only for examination preparation but for you to be informed.

The  Zimbabwe system of government

• It follows the separation of powers arrangement.
• It has three branches, namely:

(i)   The  executive  branch  headed  by  the  Executive

President and sees to it that laws are carried out.

(ii)  The   legislative   branch   or   the   parliament   or the assembly which makes laws. It consists of Parliament and the President.

(iii) The judiciary branch or the system of courts which interprets the laws, punishes law breakers, settles disputes and decides whether the laws or other actions of the executive and legislative branch are in keeping with the Constitution.

• Allows each branch to check and limit the powers of the others to prevent one branch becoming too powerful.
• It is a system of checks and balances.

The  President

• Is   the   Head   of   State   and   Government   and Commander-in-Chief of the Defence Forces.

• Is the first citizen and his/her family is the firstfamily.

• If the President is male his wife is the First Lady, or First Gentleman if the President is female.

• The   President   must   obey   and   uphold   the Constitution and all the other laws of the country.

• The President  enjoys  immunity  from  civil  or criminal proceedings for things done in his/her personal capacity until he or she has ceased to be President. For official acts, good faith is a defence.
• A person who is a citizen of Zimbabwe by birth or descent, is a registered voter, is 40 years old and ordinarily resident in Zimbabwe qualifies for election as President or Vice-President.
• A  Presidential   candidate   must   nominate   two running mates.

• The term of office of the President is two five year terms.
• The President or Vice-President may resign his or her office.
• The President or Vice-President may be removed from office for:

-     serious misconduct;

-     failure   to   obey,   uphold   or   defend   the Constitution;.

-     wilful violation of the Constitution.

-     inability to perform the functions of the office due to physical or mental illness.

• The President has power to:

-      appoint and receive diplomats;

-     enter  international  conventions,  treaties  and agreements;

-     declare   or   end   martial   laws   or   public emergencies;

-     declare wars and make peace;

-     appoint   and   remove   from   office,   Vice

Presidents, Ministers or Deputy Ministers;

-     address parliament, sit and speak in Parliament;

Ministers, Deputy  Ministers and  Cabinet

• The President, guided by considerations of regional and gender balance, appoints Ministers and Deputy Ministers from among members of Parliament;
• Up to five may be appointed outside Parliament for their professional skills and competence.

• Cabinet Ministers  are responsible for:

-     formulating   Government   policies,   vision, mission statements, aims and objectives of their ministry;

-     giving directive on how the ministry must be run;

-     answering questions raised in parliament on their ministry;

-     preparing, initiating and implementing national legislation;

-     advising the President.

Parliament 

• Parliament    is    the    Legislative   Authority    or Legislative Branch of Government or Legislature.

• Parliament is elected for a term of five years and stands dissolved on the day before polling starts in the next election
• Consists of the Senate and the National Assembly.

This is called a bi-cameral Parliament.

• Every Member of Parliament must take an oath before taking up office.
• Parliament  must  protect  the  Constitution  and promote democratic governance.
• All  agencies  of  government  are  accountable  to parliament.

a) The Senate

• Consists of 80 Senators of whom:

-     six are elected from each province;

-     sixteen are chiefs;

-     two are President and Deputy President of the National Council of Chiefs;

-     two  are  elected  to  represent  persons  with disabilities.

• A Senator must be a registered voter and at least 40 years of age.

• The  President  of  the  Senate  and  the  Deputy President of the Senate preside over the Senate.

b) The National Assembly

• Consists of 210 members elected by secret ballot from the 210 constituencies.

• A member of the General Assembly must be a registered voter and at least 21 years of age.

• The Speaker and Deputy Speaker preside over the National Assembly.

Judiciary and  the  Courts

• Judiciary authority derives from the people and is vested in the courts: the Constitutional Court; the Supreme Court; the High Court; the Labour Court; the Administrative Court; the magistrates’ courts; the customary courts; and other courts established by or under an Act of Parliament.
• The Chief Justice, the Deputy Chief justice, other judges of the courts and persons presiding over magistrates’ courts and customary courts constitute the judiciary.

The  Permanent Commissions of Government

• A commission is a group of people appointed by the President to do specific work.
• Permanent Commissions  are  The  Civil  Service Commission, The Prisons and Correctional Service Commission, The Judicial Service Commission, The Police Service Commission, The Defence Service Commission and The Public Protector (Ombudsman.)

(a) The Civil Service Commission (CSC)

• Manages the Civil Service (public service).
• Members of the Civil Service are people employed by the government excluding the police, defence forces, prison officers, members of the judiciary and staff of parliament.
• Civil servants may not be office bearers of any political party.

• Members of the Civil Service Commission must have the ability, experience or professional qualifications in administration.
• The CSC:

-     appoints,  assigns  and  promotes  people  to offices, posts and grades;

-     fixes the conditions of service for the civil servants;

-     exercises disciplinary powers on its members;

-     fixes  the  number  of  offices,  posts,  grades, departments or divisions in Civil Service;

-     investigates grievances of civil servants;

-     fixes salaries for civil servants.

(b)  The Prisons and Correctional Service Commission

• It comprises the Commissioner of Prisons, who is its chairperson, plus between two and seven members appointed by the President.
• Requirements are ability, experience or professional qualifications in administration.
• It is headed by the Chief Justice. The first black Chief Justice was Justice Enock Dumbutshena.

• The Judicial Service Commission:

-     advises on legal matters;

-     supervises the legal system;

-     promotes independence and accountability of the judiciary;

-     oversees    the    efficient    and    transparent administration of justice.

(d)  The Police Service Commission

• Has between two and seven members who must have held senior ranks in the Police Force such as secretary, deputy police commissioner or superintendent.
• The Police Service Commission:

-     fixes salaries of members of the Police Service;

-     fosters   harmony   between   the   forces   and citizenry;

-     carries out inquiries or investigations into the practices of the Police Force;

-     produces and submits an annual report to the Minister;

-     trains police officers;

-     maintains the police force in a high state of efficiency;

(c) The Judicial Service Commission

• Manages the Judiciary.
• It is the court system: Primary Court (Headman’s Court, Village Court, Community or Chief’s Court); Magistrate’s Court (Chief Magistrate); High Court (Judge President); Supreme Court (Chief Justice).
• It  comprises   the   Chief   Justice,   the  Attorney General, and two to three members appointed by the President. These members must have been judges of the High Court or Supreme Court.
• It must be independent to do its work professionally.

-     advises government on matters of the defence forces.

(f)  The Public Protector/ Ombudsman

• He/she is an independent person.
• He/she investigates wrong doing and prosecutes government officials by bringing them to trial on criminal charges or forces government to take action.
• For one to qualify to be a Public Protector, one should have been a:

-     judge in Zimbabwe;

-     legal practitioner for at least seven years;

-     regional magistrate;

-     Secretary for Cabinet or Ministry.

• Anyone can  make  a  complaint  to  the  Public Protector against a force, service, institution, authority or body, officer or employee.
• The complainant must be a Zimbabwean.
• The illiterate can be assisted to write down their complaints.

Independent commissions supporting democracy

• Therearefive:theZimbabweElectoralCommission; the Zimbabwe Human Rights Commission; the Zimbabwe Gender Commission; the Zimbabwe Media Commission; and the National Peace and Reconciliation Commission.
• Members of  these  commissions  are  appointed by the President with Parliamentary and public participation in the process.
• They work to support democracy by:

-     entrenching human rights and democracy;

-     protecting  the  sovereignty  and  interests  of citizens;

-     promoting constitutionalism;

-     promoting transparency and accountability in public institutions;

-     securing the observance of democratic values and principles by all institutions;

-     ensuring the remedying of injustices.

• These commissions:

-     act independent of any control and without fear, favour,  prejudice or interference;

-     are  accountable  to  Parliament  for  efficient performance;

-     are entitled to support from all government institutions    for    the    protection    of    their independence.

Constitutional amendments and referendum

• Parliament has power to amend sections of the Constitution. The whole Constitution can only be changed after a referendum.
• Constitutions are always amended to keep them abreast of changes in the society, new expectations and aspirations of the people.

• Many   amendments   were   made   to   the   1980 Constitution.

• A Bill  must  be  raised,  tabled  and  discussed  in Parliament before amendments.

• A Bill is a draft for a proposed law.
• People vote for or against the draft.
• Two  thirds  of  the  MPs  are  needed  to  amend  a constitution.

• Amendments lead to additions or subtractions or repeal of sections of the Constitution.

• A referendum gives people a chance to air their views through voting.

• The   first  referendum   was   in   2000   after   the Government had prepared a draft constitution.

• Commissioners travelled country wide explaining it to people and getting people’s views.

• The people rejected the draft constitution.
• In  2009   another   constitution   making   process started,          spearheaded    by    the    Constitutional Parliamentary Select Committee (COPAC) and the participation of the people.  A referendum on the draft constitution was held on 16 March 2013.
• Tallies of the referendum released by the Zimbabwe Electoral Commission (ZEC) showed that of the 3 316 082 people that voted, 3 079 966 voted ‘Yes’ (endorsed the draft constitution) while 179 489 voted ‘No’ (rejected it).

• Since the majority were in favour of its adoption, the draft constitution was duly declared to have been adopted by the people of Zimbabwe as the Constitution of Zimbabwe.

Exercise ...

(a) Name six ways a person could lose his/her citizenship.  [6]

(b)  Explain a citizen’s rights and responsibilities.

(b)  Discuss the composition and functions of the Civil Service Commission and the Judicial Service Commission.                                 [11]

(c)  To   what   extent   have   these   commissions benefited the people of Zimbabwe?             [8]