A Critical review of Zimbabwe's Constitutional Amendment No. 2
Introduction
The announcement by the government of plans to amend the Constitution towards the end of 2019 was disappointing but not surprising. After ZANU PF won a super-majority (two-thirds of the seats) in Parliament, the question was when not if it would make a move to amend the constitution. A two-thirds majority is the threshold required to amend the constitution. This is why before the 2018 elections, I argued that whatever happened, the losing parties must avoid handing the winner the highly coveted two-thirds majority in Parliament. As it happened, ZANU PF got the two-thirds majority, and with it, the keys to amend the Constitution.
On 31 December 2019, the government published the Constitutional Amendment Bill (No. 2) in the Extraordinary Government Gazette, formally commencing the constitutional amendment procedure. Predictably, the reaction to this move has been hostile and critical, but no-one can say it was unexpected. What is now required is a sober and dispassionate approach to the constitutional amendment process, not histrionic outbursts. This exercise requires a critical examination of the proposed amendments.
To achieve this, the first stage is to address the phenomenon of amending the constitution so that we understand why one group supports amendments and why another opposes it. This exercise can be done independently of the actual proposed amendments. The second stage is to critically examine the actual proposals considering the arguments for and against constitutional amendments.
I will commence with arguments usually deployed to support and justify amending the constitution. Thereafter, I will present arguments against constitutional amendments.
Formal amendments are procedurally legal
An argument in favour of amending the constitution is that it is legitimate on the grounds of procedural legality. We might call this procedural legitimacy. Our legal system has a legal ordering that places the constitution on a higher pedestal compared to ordinary laws. This is evident in the amendment procedure: the constitution can only be amended by a super-majority and in some cases, such as provisions of the Declaration of Rights, by referendum. By contrast, ordinary laws can be amended by a simple majority. The threshold for amending a constitution is higher and this supposedly makes it more difficult.
Ironically, this amendment difficulty also works against the constitution because once a party attains a two-thirds majority in parliament, it takes this not just as a license but also as an obligation to amend the constitution. In this way, a procedure designed to protect the constitution also works as a trigger for its potential destruction.
Therefore, as far as ZANU PF is concerned, it is perfectly entitled to amend the constitution because it has the numerical authority to do so. For them, procedural legality is a good enough reason to carry out the amendments. The problem is that procedural legality is unconcerned with the quality of amendments. Hence throughout the history of humankind, the most heinous regimes have come to life using similar justifications of procedural legality.
Formal amendments to make corrections
A second argument supporting the constitutional amendment is that amending a constitution may be necessary to correct defects in the original document, which are identified through application and experience. This is why almost every constitution has a special amendment procedure. As constitutional scholar, Vicki Jackson has stated, “The amendment provisions of the Constitution represent an important reminder that instruments made by human beings are imperfect (as may be judicial decisions interpreting those provisions), and of the need for humility about quality of existing law.” She was referring to the US Constitution, but the point applies with equal force to other constitutions. The original constitution-makers may have made errors which need correction or left gaps that need filling. The Bill of Rights in the US Constitution was only added through a set of amendments in 1791, four years after the original document was adopted. The German Constitution has been amended 68 times since its adoption in 1948. In any event, constitutions are not immutable. Society should be able to make corrections.
What we can observe here is that what matters is not the quantity or frequency of amendments but their quality and effect. Therefore, the focus concerning the proposed constitutional amendments should be on their content and quality. Are these proposed amendments making necessary corrections, filling gaps or removing contradictions that have been identified over the past seven years since the Constitution was adopted? Or are they designed to go beyond corrections, making substantive changes that detract from the values and principles in the original document?
Formal amendments are democratic
A third argument is that it is perfectly democratic for society to ensure that its governing law adapts to changing circumstances. On this view, amendment procedures that make it too difficult to change the constitution may be regarded as undemocratic on account of their rigidity. This is a common criticism against one of the oldest constitutions, the US Constitution which some critics argue is almost impossible to amend. As many scholars have observed, the US Constitution has amendment procedures that set remarkably high thresholds which are hard to meet. In over 200 years, it has been amended just 27 times. As scholar Vicki Jackson says, “… Article V [of the US Constitution] has also been subject to critique for its rigidity, as inconsistent with democratic legitimacy. Indeed, the US Constitution has been sharply criticized for not allowing sufficient flexibility for democratic majorities to amend the Constitution’s text under Article V”.
Critics argue that there is nothing democratic about a constitution that ties the hands of future generations to the views and supposed wisdom of the founding generation. If the people are the legitimate source of constitutional authority, then generations that come after the founding generation must be allowed to make changes so that the constitution speaks their language and is consistent with their circumstances. This is probably not an appropriate justification for the current proposed amendments given that the Constitution is less than 10 years. The generation seeking to make amendments is virtually the same generation that made the Constitution. Still, they might argue that they hold the democratic majority in Parliament which they are rightfully exercising.
Formal amendments are better than informal judicial amendments
A fourth argument, which is also based on the idea of democracy, is that if an amendment is not carried out through Parliament, it still takes place informally through judicial interpretation by judges in the courts of law. As stated by constitutional scholars, Ginsburg and Merton “Constitutions adjust through two primary mechanisms, formal amendment and informal interpretation.” Since there is a great difficulty to amend the US Constitution “judges have stepped in to ensure the constitutional order adjusts over time,” they add.
Another scholar, Kathleen Sullivan argues that the US Constitution has managed to endure for more than 200 years despite only 27 amendments because the Supreme Court has exercised “broad interpretive powers”. A critic of formal amendment, Sullivan asserts that broad judicial interpretation removes the need for more frequent amendments. Constitutional scholar Vicki Jackson argues that political actors who are reluctant to have constitutional change through the formal amendment process are “too reliant on seeking constitutional change through other means, especially adjudication and changes in judicial appointments”. However, she argues, this raises questions of democratic legitimacy.
Critics of informal amendment through judicial interpretation argue that the judiciary consists of unelected legal experts and it poses challenges for democratic legitimacy. They prefer Parliament since it is made up of democratically elected representatives. A former justice of the UK Supreme Court, Lord Sumption has been quite critical of the role of judges both in the UK and at the European Court of Human Rights for encroaching into the domain of politics and making decisions that should be left to the political process. He has referred to the very liberal, broad and activist interpretation of the ECHR as a form of “non-consensual legislation”. As Vicki Jackson wrote, “To the extent that constitutions depend for their legitimacy on several sources, including democratic consent, unwillingness to use constitutional processes for amendment raises questions of constitutional legitimacy.”
On this view, therefore, the use of the formal amendment powers to change the constitution is not only desirable but welcome. The proposed constitutional amendment is better than leaving it to the judiciary to carry out amendment through interpretation. However, this overestimates the status of Parliament as a site of popular consent. What may be true in theory, is not so in practice where factional interests often take precedence. The question is whether our Parliament meets the threshold of being true representatives of the people not just in quantitative terms but also qualitatively.
Raw power: “Because we can”
The process of amending the constitution may also be seen as the exercise of raw political power by the victor, particularly in a highly polarised environment. As has been noted already, one of the ironies of constitutional design is that the special status that is accorded to the constitutional amendment procedure can also turn out to be the constitution’s undoing. This is because the high threshold required to amend the constitution becomes a political prize to be fought for and achieved. Once achieved, it represents the spoils of political battle.
The result is that the power will be exercised even when it’s not necessary. The victor will not want to waste a good opportunity to flex its muscle and showcase its hard-won power to amend the Constitution. Even if they run out of reasons to justify the amendment, they can always fall back on the “just because we can” justification. There is a certain arrogance to it which leads the victor to take a unilateral path where otherwise a norm of consultation, co-operation and consensus might have been more appropriate. This is exacerbated by the fact that the nation is polarised, with the main opposition refusing to recognise the legitimacy of President Mnangagwa. Constitutional amendment power becomes weaponised in the political battle between the parties, with the constitution as the casualty.
However, amending the constitution just because the ruling party has the numerical power to do so only exposes the constitution to the see-saw effect of politics, whereby it is liable to change depending on who has power at any moment. This, as we have already observed, is not good for constitutional stability. There is not much that can be done to prevent this puerile justification for amending the constitution except to prevent the winner of elections from getting a super-majority in the first place.
Let us now consider the other side of the coin: why there are objections to the proposed constitutional amendments.
Safeguarding the myth
One reason for objecting to constitutional amendments generally is based on the desire to protect the integrity and status of the Constitution. This is a form of deification of the constitution. The constitution is accorded a mythical status by its advocates and gatekeepers. This is because the constitution is a legal fiction; a product of a political community’s collective imagination. Like most social constructs, the myth of the constitution depends on how much it is believed by members of society. Most belief systems have texts that are regarded by believers as sacred. Any attempts to change such texts are seen as acts of sacrilege. If constitutionalism is a secular religion, then the constitution is its sacred text and its advocates and defenders are the high priests and clerics.
Therefore, it is not unusual to hear words like “sacred” being used to describe the constitution. As Ginsburg and Melton have stated, “… in Italy, the constitution is held up as a “sacred” and “virtually untouchable” document, which has limited both the number and extent of changes to the Italian constitution since its promulgation in 1948.” The constitution is the highest law in the land, and it is seen as deserving of special protection. It contains the founding values and principles of the nation. Any attempts to change it are described as “desecration”. When its defenders are objecting to the idea of an amendment, it is not always because the actual amendments are bad but that they fear changes might open floodgates to amendments which would eventually bust the myth of the constitution. They resist anything that appears to cheapen the constitution.
The existence of a special amendment procedure, which sets strict procedural requirements compared to other laws is presented as evidence reaffirming this scared status. In some cases, some areas of the constitution are regarded as being even more sacred than others which are depicted by the additional ring-fencing they get. So, for example, the Declaration of Rights in our Constitution cannot be amended unless such changes are designed to add to existing rights. Also, changes to term-limit provisions require not just a parliamentary super-majority but also a referendum. Ironically, however, as I have already observed, this additional ring-fencing of certain areas, gives proponents of constitutional amendment incentives and justification to amend parts of the constitution that do not have such protections on the basis that if they are not specially protected, they must be fair game.
In one sense, the mythical status may be important for stability in society. As Yuval Noah Harari has pointed out in Sapiens: A Brief History of Humankind, myths are important for purposes of building large networks of co-operation between members of the society. The constitution is the myth that binds members of a political community, despite their differences. Belief in the myth incentivises members of society to obey the constitution regardless of their objections to parts of it, just as they faithfully follow religious texts and teachings even if they doubt some of the content. The reverence with which they hold these texts fosters unquestioning faith, obedience and loyalty. In Britain, which famously does not have a written constitution, some people object to proposals to have it codified arguing that it will force people to answer fundamental questions that they are better off not confronting and they have long chosen not to confront. This, it might be argued, is good for stability.
Nevertheless, there are other countries which have a more active constitutional amendment culture, such as India and Germany. The frequency of constitutional amendments has not resulted in the “desecration” of the Constitution. This suggests that the fear of amendment could be no more than an irrational fear that amendments will undermine society’s respect for the constitution. Scholar Vicki Jackson refers to this as “amendophobia” – an irrational fear of amendments, a contrast to what Kathleen Sullivan had described as “amendmentitis” – the urge and rash to amend the constitution.
Consultation, Co-operation, Compromise and Consensus
An important objection to the proposed constitutional amendment is that it repudiates what could have been an important norm in constitution-making and amendment: that of consultation, co-operation, compromise and consensus between political actors. The current constitution is a product of all these elements. It was the outcome of negotiation which involved a politics of co-operation, compromise and consensus. That it was achieved seems like a miracle given the wide chasm that existed between the political actors who negotiated it. In reality, it demonstrated what was capable of being achieved if parties put aside their differences and able to find common ground and learning to accept what they did not like. That is the essence of co-operation and compromise which ensures the wheels of politics move in most countries even when there are major differences.
This politics of co-operation, compromise and consensus contrast with unilateralism and polarization which is at the centre of our political culture. The constitution is one area where co-operation, compromise and consensus could have evolved into a norm, which might have impacted other areas of politics and society. Such politics lie outside the formal procedures of the constitution. It helps oil and moderates the hard positions that might result from procedural compliance. Therefore, it would not be enough to rely on the fact that the ruling party has a two-thirds majority which is necessary to facilitate a constitutional amendment. It would require forbearance; where the majority says, “We have the power to do what we want, but we will build a norm of consultation, co-operation, compromise and consensus with our political counterparts because this is a national document and it is good to do so. We expect our counterparts to reciprocate should they ever be in the same position as us.”
Unfortunately, the current move stifles what could have been a useful norm. It means in future anyone with a two-thirds majority will simply proceed unilaterally, notwithstanding the co-operative process that brought this constitution to life. Instead of showing leadership and humbling the opposition with an extended hand of co-operation, ZANU PF has elected to use raw power through the medium of procedural legality. Likewise, the objection by the opposition may not be based on all the content of the amendments but the unilateralism and legalism adopted by ZANU PF to a matter of critical significance.
It might be argued that norms are pointless as they have no binding force. However, as political scientists Levitsky and Ziblatt have persuasively demonstrated in their book How Democracies Die, it is these unwritten rules that oil the formal democratic machine and when they break down as political actors resort to hard legal power, the political community descends into authoritarian rule. The current resistance to the proposed amendments might have been minimised by taking a more consultative and collaborative approach.
Path Dependency: The path to authoritarianism
Another argument against amendments is the fear of regressing to a familiar path of descent into authoritarian rule which is characterized by the high concentration of power in the hands of the executive presidency. This is akin to path dependency theory, where faced with choices, political actors gravitate towards the path they have taken before. This not only precludes new ways of thinking or acting but if the old path is retrogressive, it simply perpetuates a bad culture.
The fear of a return to a retrogressive past is linked to the notion of what scholars Ginsburg and Melton call “amendment culture”. They define “amendment culture” as “the set of shared attitudes about the desirability of amendment, independent of the substantive issue under consideration and the degree of pressure for change.” Some countries are more likely to amend their constitutions than others. However, amendment culture on its own is not a problem. It’s only a problem if the amendment culture is negative. Japan, with virtually no amendment since 1946 would be regarded as having an anti-amendment culture, while Germany with 68 changes in a similar period would be regarded as having a pro-amendment culture. But both countries are generally well-governed. The problem is if the amendment culture leads to erosion of the constitution’s values and principles and leads to authoritarianism. This is the fear among the anti-amendment advocates in Zimbabwe, which leads to the blanket rejection of the current set of amendments.
In this context, the fear is that the proposed constitutional amendments reflect a return to the old path of constitutional authoritarianism. Under the old constitution, the Mugabe regime made 19 amendments in a space of 30 years. The most significant constitutional changes, such as constitutional Amendment (No. 7) 1987, which abolished the Westminster-style parliamentary government and brought in the Executive Presidency, were reactionary. Such amendments increased the power of the executive, reduced the power of the judiciary, reversed decisions of the Supreme Court and generally dismantled checks and balances. There has already been one amendment under the new constitution, the purpose of which was also to increase the power of the executive in judicial appointments.
Under these circumstances, even without considering the content, critics have reacted negatively to the proposed constitutional amendments believing that they represent a return to familiar paths. It is important, therefore, to critically examine the proposed amendments to determine whether they truly fall into the old path of retrogressive amendments. Do they, for example, increase the power of the executive? Do they impact the independence of the judiciary? Do they undermine the role of Parliament? Do they create institutions that check the power of the executive? This exercise will demonstrate whether the fear of amendments is well-founded or irrational.
Unconstitutional constitutional amendments
While the previous three grounds are largely political objections, there are also objections based on legal grounds. Although it sounds like an oddity, such an objection would be that the constitutional amendments are unconstitutional. But one might ask: How can amendments to the constitution be unconstitutional?
Constitutional amendments can be unconstitutional in at least two ways: procedural, where the amendment fails to comply with the special rules of amending the constitution and substantive, where the content of the amendment violates existing provisions of the constitution. Constitutional scholar Jacobsohn provides a neat distinction, “procedural unconstitutionality involves how an amendment is made, substantive unconstitutionality concerns what is amended.” If a provision can only be amended by referendum but this is not done, the amendment would be unconstitutional.
Substantive unconstitutionality can arise where otherwise unamendable provisions are amended. It may also arise where an amendment is inconsistent with provisions or undermines values and principles in the original constitution. An example is where an amendment seeks to limit or reduce an existing right in the Declaration of Rights. This is prohibited by the Constitution. Courts in various parts of the world have shown a readiness to strike down unconstitutional amendments. Constitutional scholar Richard Albert has written, “It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts enforce both written and unwritten limits on how political actors may exercise the power of formal amendment.”
India is a country which famously has a longstanding history of striking down constitutional amendments on grounds of unconstitutionality. There is the famous case of Kesevananda v State of Kerala (1975), the Supreme Court reaffirmed a doctrine that constitutional amendments are deemed unconstitutional if they affect the essential features of the constitution. As the Indian Chief Justice wrote, "every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same". It is from that the famous “Basic Structure” doctrine emerged. The identity of the constitution must not change because of an amendment. As another Indian judge, Justice Chandrachud stated in a later case, Minerva Mills Ltd v Union of India, “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage; therefore you cannot destroy its identity.”
Regrettably, when the Supreme Court of Zimbabwe had the opportunity to consider the constitutionality of a constitutional amendment, it rejected the invitation to apply the Indian doctrine. (Campbell (Pvt) Ltd & Anor V Minister Of National Security Responsible For Land, Land Reform & Resettlement & Anor 2008 (1) ZLR 17(S)) The government had passed Constitutional Amendment (No. 17) in 2005, which, among other things, removed the power of the courts to adjudicate challenges over land acquisitions. This removal of judicial authority was challenged as an attack on the essential features of the Constitution, just as had been argued in the Kesevenanda case in India, where similarly, courts’ jurisdiction over property-related disputes had been taken away.
However, Deputy Chief Justice Luke Malaba (as he then was) ruled that the Indian doctrine was not necessary since it was only an aid to interpretation where the language of the statute was unclear and ambiguous. As, in his opinion, the constitutional amendment in question was clear and unambiguous, there was no need to apply the essential features doctrine. In this way, the question of the unconstitutionality of an amendment which removed judicial power was avoided.
The attitude of the court seems at odds with the constitutional requirement for all organs of the State, including Parliament, to comply with its terms. If Parliament can amend the Constitution in a way that destroys its core features that would arguably be unconstitutional and the Court should be able to safeguard it. A refusal to guard the Constitution in such circumstances would lead to a situation where Parliament is above the Constitution. This was succinctly captured by another Indian judge, Justice P.N. Bhagwati in the Minerva Mills case, “If by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity.” In other words, parliament, which is required to uphold the Constitution cannot be left to alter its identity for that would be a failure and abuse of its mandate.
The refusal by the highest court in Zimbabwe to apply the Basic Features doctrine leaves the Constitution vulnerable to serious erosion through amendment powers. It creates a bleak picture for those who might wish to challenge the constitutionality of constitutional amendments in Zimbabwean courts. This is why they would rather object to amendments generally fearing that they might lead to a retrogressive amendment culture. The resistance is more pronounced where they believe proposed amendments violate the constitution.
It is important therefore to critically analyse the proposed amendments to identify whether they violate the Constitution. I will try to answer the question: do any of the amendments undermine the basic features of the Constitution?
Stability and the Rule of Law
While acknowledging the need for corrections where necessary, opponents of amendments argue that the stability of the constitutional framework is an important element of the political process and that this is threatened by frequent amendments. It is the highest law in the land and should be protected from changes even if a ruling party has the power to do so. Stability also builds public confidence and trust in the constitution. If it’s changed at every opportunity just because the ruling party can, people will end up losing confidence in its role as the legal and moral compass of the nation. They will instead see it as a political weapon of a ruling party, relevant only as an expression of its power. Writing in defence of the hard to amend US Constitution, Kathleen Sullivan stated, “Keeping amendment relatively infrequent thus preserves public confidence in the stability of the basic constitutional structure”.
The rule of law requires not only that law is certain and predictable but also that the legal system is stable. A legal system in which the highest law is under regular threat of amendment whenever a ruling party has a two-thirds majority loses stability. Changing the rules of the game which are established in the constitution just because a party has the numerical strength to do so endangers the political playing field, which is a source of conflict and illegitimacy. Political players participate in political processes in the belief that the high rules of the game and political institutions will be respected regardless of who is in power at any given time.
The politicisation of the Constitution
It might seem odd to suggest that a document that largely moderates political power and is largely in the hands of political actors should not be politicised. However, while the constitution undoubtedly deals with the exercise of political power and its limits, its strength lies in its protection from factional politics. It ought not to be weaponised by politicians for purposes of advancing short-term political gains. The problem with an amendment that pushes a short-term political agenda is that it loses value once that agenda expires. At that point, another amendment will become necessary, leading to clutter.
Politicisation also makes the constitution subject to the personalities in power instead of ensuring that personalities in power are subject to the constitution. Once the constitution becomes chameleonic so that it assumes the complexion of those in power it loses its major purpose as a restraining force upon the powerful. This does not bode well for political stability and the rule of law.
It is important therefore to critically assess the proposed constitutional amendments to identify whether or not they are designed to advance short-term interests of political factions. If they exist, such amendments would be unnecessary and should be avoided.
Constitutional coherence
Since amendments are essentially an “afterthought”, they pose the risk of causing tension with original provisions elsewhere in the constitution and may lead to incoherence. When a constitution is constructed, the architects take extreme care to ensure that the document is coherent; that its provisions are consistent and free from contradictions. They meticulously review and revise the document to cut out any potential contradictions.
Where tensions are discovered after the adoption of the constitution, there is reason to amend. There is no point keeping provisions that are not working. Likewise, ill-considered amendments can result in tensions and contradictions. As Sullivan points out, “inconsistencies may have the unintended consequence of undermining the unity and coherence of the document as a whole, destabilising structures of rights …” It is important, therefore, to consider the potential effect of each of the proposed amendments upon the rest of the Constitution. Any inconsistencies, contradictions or other tensions must be pointed out during the amendment process.
Conclusion
When the constitution was being designed, we tried as much as possible to ring-fence important parts of the constitution, such as the Declaration of Rights, term-limit provisions and the constitutional amendment procedure provisions. But while we could influence amendment difficulty, there was one thing that was always going to be outside our control: we could not control amendment culture. Whether or not political actors are more inclined towards amending the constitution is down to their values and principles and how much regard they have towards the constitution.
At the end of the day, the most optimal way to protect the constitution is to prevent any party from grabbing a two-thirds majority. That way the politics of consultation, compromise and consensus become compulsory, not optional. If parties can’t stop a victor from getting two-thirds majority, they leave the constitution vulnerable to the whims of the ruling party.
In her article, Sullivan argued for a “strong presumption against amending the Constitution”. It was in reaction to the US Constitution, but the point is also relevant to our context. As she pointed out, it was merely a presumption, not an immutable commandment against amendments which says the constitution should never be amended. That would be absurd. There is no need to fetishize the constitution, although it is necessary to desist from conduct that would lower public confidence and trust in it. Amendments should be allowed and sometimes they are welcome but only when it’s necessary.
Amendments should certainly not be carried out in the name of “just because we can”. That would be to weaponize and trivialise the Constitution. Ultimately, as we have seen in this analysis, what is important is not the frequency or otherwise of amendments but the quality of their substance. Therefore, the strategy regarding the present set of proposed amendments must be a critical examination of their content, quality and effect. I shall endeavour to examine these amendments against the criteria outlined in this article. The next article will therefore address the following questions in respect of the proposed amendments:
Do they correct errors?
Do they fill gaps?
Do they undermine the basic features of the constitution? What are the basic features of the constitution?
Do they advance factional interests?
Do they cause tensions with or contradict other parts of the constitution?
Do they undermine public belief and confidence in the Constitution?
Do they lead to the path of authoritarian rule?
Are they unconstitutional?
Do they affect the coherence and stability of the Constitution?
Do they advance short-term political interests?
Dr Magaisa is an academic based at Kent University. You can access more of his writings on his website.