A Review of The Doctrine of Separation o PDF

Southern
Peace Review
Journal
Volume 2 Number 2 September 2013
Special issue with OSSREA Zimbabwe Chapter
THEME:
A Review of the Constitution Making Process
in Zimbabwe (2009 – 2013)
Southern Peace
Review Journal
ISSN: 2227-8974
Call for Articles
The Southern Peace Review Journal (SPRJ) is a refereed online journal
published twice a year in March and September. All articles are peer reviewed
by at least two referees in a double blind review format.
Background
The SPRJ is an academic-cum-practitioner journal whose goal is to celebrate
and promote the peace-building work and thoughts of citizens of Africa in
particular and the global south in general while contributing to the academic
discourse on issues of peace and development. Often there is a divide
between academics and practitioners thereby leading to ivory towers on the
one hand and misguided practice on the other. The SPRJ seeks to bridge this
divide, to be a forum where academic meets practice, theory meets lived
reality as citizens of Africa in particular and the global south in general pool
their hard won expertise in search of solutions to peace and development
challenges of their time.
Article types
We welcome the following types of contributions year round and will
periodically issue calls for papers on specific topics:
Articles and case analyses: Critical case studies or thematic discussion and
analysis of topical peace and conflict themes (+/– 5 000 words including
references and abstract [150 - 200 words]).
Briefings/ practice: Training or intervention strategies, outcomes and impacts,
policy reviews and analyses, country situational updates, and so on (2 000 words
maximum).
Book reviews: Critical assessments of new books that integrate peace and conflict
concerns (1 500 words maximum).
Submission and selection
? Abstracts for the March issue are due by 15 December and the full
articles are due by 15 January; those for the September issue are due by
15 June and 15 July respectively
? The submission must be original and not under consideration for
publication by another journal or organization or have been published
previously
? Authors must ensure clarity of presentation and adherence to all basic
rules of grammar
? Submissions should be prepared in word-processing software, preferably
Microsoft Word 2003 or later and sent by e-mail to sipd@sipd-zw.org
? Include full name, brief bio(s) with institutional affiliation of author(s), and
contact details, including telephone number.
NB. The editors reserve the right to alter all manuscripts to conform to SPRJ style, to improve
accuracy, to eliminate mistakes and ambiguity, and to bring the manuscript in line with the
tenets of plain legal language.
For information and submission

E-mail: sipd@sipd-zw.org; Website: www.sipd-zw.org.
Southern Peace Review Journal
Special Issue with OSSREA Zimbabwe Chapter
Editor-in-Chief
Samuel Maruta
Editorial Team
George M. Dzambwa
Charlene Rumbidzai Maposa
International Review Committee

Mr. Belingtone Eliringia Mariki, Institute of Adult Education,
Tanzania
Ms. Busi Jokomo, Institute of Development Studies, University
of Zimbabwe
Dr. Christabelle S. Moyo, University of South Africa (UNISA)
Professor Enna Gudhlanga, Zimbabwe Open University
Professor Ezra Chitando, University of Zimbabwe
Mr. George Allan Phiri, Institute of Research, Development &
Training, Malawi
Dr. Jephias Matunhu, Midlands State University, Zimbabwe
Dr. Leonorah Tendai Nyaruwata, Zimbabwe Open University
Dr. Martin Rupiya, African Public Policy and Research Institute,
South Africa
Professor Tabona Shoko, University of Zimbabwe
Mr. Tobias Guzura, Zimbabwe Open University
Professor Zifikile G. Makwavarara, University of Zimbabwe
Special Issue with OSSREA Zimbabwe Chapter
The Southern Peace Review Journal (SPRJ) is a refereed online journal

published twice a year in March and September. All articles are peer
reviewed by at least two referees in a double blind review format.
The SPRJ is published by the Southern Institute of Peace-building and

Development (SIPD), a peace education, research and action
organisation focussing primarily on grassroots, post-conflict and
displaced communities. Its vision is of a society where justice, peace
and security prevail for everyone everywhere regardless of any form of
classification. Taking a strength-based approach to peace-building, its
mission is to enhance the capacity for peace, healing and reconciliation
of grassroots, post-conflict and displaced communities in Zimbabwe and
southern Africa through peace education, research, advocacy,
information dissemination and action with the affected communities.
Disclaimer
The opinions contained in the Southern Peace Review Journal, unless
expressly stated otherwise, represent the views of the author or authors
and not necessarily those of the SIPD, its trustees, staff or volunteers.
Copyright © 2013 Southern Institute of Peace-building and Development
ISSN: 2227-8974
Key title: Southern peace review journal
Abbreviated key title: South. peace rev. j.
Variant title: SPRJ
ii
SPRJv2.2 (Special Issue with OSSREA Zimbabwe Chapter) September 2013.
Contents
Acknowledgements
Editor's Note
Constitution Making in Zimbabwe 2009 – 2013: Party Politics or
the People? 5
1. A Review of the COPAC led Constitution Making Process
in Zimbabwe (2008-2013) Lawrence Mhandara, Shakespear
Hamauswa &Charity Manyeruke 12
2. The Impact and Implications of Zimbabwe's Second All
Stakeholders Conference on Constitution Making Charity
Manyeruke & Farai Sasa 31
3. Zimbabwe 2013 Constitution and its Implications on Local
Self-Government David Mandiyanike & Norbert Musekiwa 49
4. A Review of the Doctrine of Separation of Powers in
Zimbabwe (1979-2013) Lawrence Mhandara, Shakespear
Hamauswa & Eve Nyemba 68
5. The Devolution Debate and the New Constitution of Zimbabwe:
An Exploratory Evaluation Innocent Chirisa, Archimedes
Muzenda & Charity Manyeruke 86
6. Environmental Rights and the Zimbabwean Constitutional
Debate: Implications for Policy and Action Innocent Chirisa
& Archimedes Muzenda 104
7. The New Constitution and Sustainable Development in
Zimbabwe: Implications for Technical Teacher Education
Peter Kwaira 122
8. Religious Pluralism in a 'Christian Nation': Examining Religion
in Zimbabwe's Constitution Ezra Chitando, Agness Chiwara &
Tabona Shoko 140
9. Masculinism, Gender and the Homosexuality Debate in the
Constitution Making Process of 2009-2013 in Zimbabwe
Pedzisayi Leslie Mangezvo 160
10. Disability in Zimbabwe under the New Constitution: Demands
and Gains of the People with Disabilities Jacob Mugumbate &
Chamunogwa Nyoni 178
iii
Acknowledgements
Publication of this Special Issue of the Southern Peace Review Journal

was made possible through funding from OSSREA Head Office in
Addis Ababa, Ethiopia to the OSSREA Zimbabwe Chapter. The
commendable gesture by OSSREA in funding production of this issue
is greatly appreciated. The Southern Institute of Peace-building and
Development (SIPD) is proud to be associated with OSSREA Head
Office as well as OSSREA Zimbabwe Chapter in producing this special
edition of the Southern Peace Review Journal. We look forward to more
such collaborations to enable such scholarly publication platforms.
iv
Editor's Note
Constitution Making in Zimbabwe 2009 – 2013:

Party Politics or the People?
For well over a decade now, Zimbabwe has been a subject of intense
discussion and media reporting at home, regionally and internationally.
Unfortunately it was largely if not always for the wrong reasons, a result of
authoritarianism, impunity and arbitrary rule by the political and security
elites. One key issue was the country's military escaped into the
Democratic Republic of the Congo in the mid 1990s in support of the then
president Laurent Kabilla. Commentators say that while the intervention
was made in our name, it was not for the benefit of the country. And
economists say the intervention came at a time the economy was teetering
on its knees following the introduction in 1992 of the externally-
influenced economic structural adjustment programme (ESAP), and
marked the beginning of an economic meltdown that the country has to
date not fully recovered from.
Another topical issue was the often violent fast track land reform
programme that began in 2000 and lasted for close to a decade, albeit at
varying degrees of intensity. The main modus operandi of the programme
involved people, the so-called landless and land hungry, walking onto a
farm and claiming it as theirs with immediate effect, lock, stock and barrel.
This occupation would then be sanctioned and regularised by government
which would then demarcate plots for the occupiers. The immediate
impact of this approach was to disrupt agricultural production and expose
the farm workers and their families to poverty and other vulnerabilities.
5
Partly as a result of the negative effect of the fast track land reform
programme on agricultural productivity, the country entered an economic
meltdown that saw it turning from the bread basket of the region to a basket
case literally over night, inflation levels rising to hundreds of millions
percent and Zimbabweans scattered all over the globe like seeds from
exploding munhondo tree pods. Neighbouring countries, particularly
South Africa and Botswana, were especially affected by the sudden influx
of these economic refugees.
In the middle of the economic meltdown and the human suffering,
government unleashed a so-called slum clean up exercise, popularly
known as Operation Murambatsvina, on unsuspecting citizens in the
middle of a cold winter in 2005. Hundreds of thousands of residents of
urban and peri-urban areas throughout the country were displaced into thin
air, and many more were indirectly affected, especially as they had to
accommodate the affected relatives or assist them in some way. School
children were especially affected as the headland of the operation hit
during school term.
Perhaps the disputed presidential run-off election of June 2008
was the straw that broke the camel's back. The run-up to the election saw
what some observers described as the bloodiest politically-motivated
violence that the country had ever experienced. That is the period of the
'short sleeves' and 'long sleeves' as victims were given the choice to have
more or less of their arms cut off. As a result of these new heights in
politically-motivated violence, most of them aimed at members of the
opposition Movement for Democratic Change (MDC-T), its candidate
withdrew from the election. The need for a new governance contract
6
between the governed and their rulers loomed larger than life, even to the
young and the less politically astute among the population.
Beginning in the early 1980s, but especially after 1987, voices had
began to be heard calling for the re-writing of the country's constitution to
replace the then existing one agreed between the warring parties in London
in 1979 as a framework for ending the decade-long liberation war and
handing over power to the black majority. Popularly known as the
Lancaster House Constitution, opposition parties, academics and civil
society criticised it for, among other limitations, concentrating power in
the executive, especially the president following the 1987 amendment
which created the executive presidency. These calls became louder and
more widespread as time went by and political, social and economic woes
in the country increased. By 1999, the government had no choice but to
heed the calls for a new home-grown constitution. It organised for the
writing of a new constitution which it then put to a referendum in February
2000, mainly because the people felt that they had not be consulted and
involved enough. Further attempts were made, this time behind the scenes
and involving the three major political parties represented in parliament at
the time and resulted in what came to be known as the Kariba Draft. This
was overtaken by events, and attempts to introduce it through the back
door were vigorously resisted by civil society on the grounds that the
people had not been involved in its making.
Drawing lessons from their experience of living under the
Lancaster House Constitution, the people of Zimbabwe wanted a people-
driven constitution, hoping thereby to change their fortunes for the better.
The 1999 process and product fell far short of the mark; so too did the
7
Kariba Draft. The opportunity for the people to write their own
constitution came in the 2009 – 2013 process within the framework of the
global political agreement of 2008 between the political parties then
represented in parliament. This process has since come and gone. To what
extent the process and its product met the expectations of the people is a
debate of national and academic interest.
To interrogate this issue in a more systematic way, OSSREA
Zimbabwe Chapter commissioned some of its members to carry out
research and write journal articles on their findings, analyses and
discussions under the theme A Review of the Constitution Making Process
in Zimbabwe (2009 – 2013). This issue of the Southern Peace Review
Journal is a special issue containing ten of those research articles. The
articles fall into four categories: process, distribution of power, sustainable
development and human rights.
Process
The article on A Review of the COPAC led Constitution Making
Process in Zimbabwe (2009-2013) carries out a critical analysis of
the constitution making process with a view to determining the extent
to which it met the requirements of a 'people-driven' process as
stipulated in the global political agreement (GPA) between the
participating political parties from which the Constitutional
Parliamentary Select Committee (COPAC), a committee of
parliament charged with spearheading the process, derived its
mandate. The article The Impact and Implications of Zimbabwe's
Second All Stakeholders Conference on Constitution Making
analyses the impact and implications of the conference through
8
examining its process, the content of the COPAC draft constitution

against the stakeholders' positions and the draft constitution that was
eventually presented to the electorate in a referendum.
Distribution of power
In the article on Zimbabwe 2013 Constitution and its Implications on
Local Self-Government, the authors analyse provisions relating to
local governance in the recently adopted Zimbabwe constitution as
they try to answer the question whether the architecture of local
governance under the new constitution is consistent with the
principles of autonomy, resource adequacy, and clear demarcation of
roles and responsibilities that underpin local self-governance. The
article on A Review of the Doctrine of Separation of Powers in
Zimbabwe (1979-2013) analyses the applicability of the doctrine of
the separation of powers in Zimbabwe from the 1979 to the 2013
constitutions. It concludes that the doctrine is applicable to the
Zimbabwean context only to a limited extent. And the article on The
Devolution Debate and the New Constitution of Zimbabwe: An
Exploratory Evaluation draws parallels from a number of countries –
Brazil, India, Kenya, Ghana and the United Kingdom – with a view to
finding a common ground upon which the devolution thrust as now
enshrined in the new constitution can bring about harmonious
development in Zimbabwe. The article concludes that devolution is
challenging to implement on a radical scale since the elites in power
should be the ones to give up functions and resources.
Sustainable development
The article on Environmental Rights and the Zimbabwean
9
Constitutional Debate: Implications for Policy and Action examines

the interplay of factors that have influenced the extent to which
environmental rights were included in the new constitution. And the
article on The New Constitution and Sustainable Development in
Zimbabwe: Implications for Technical Teacher Education examines
the extent to which teacher education could help deliver the
aspirations of the people regarding sustainable development as
provided for in the new constitution of Zimbabwe.
Human rights
The article on Religious Pluralism in a 'Christian Nation': Examining
Religion in Zimbabwe's Constitution explores the dynamics
surrounding the theme, 'religion and freedom of worship' in the latest
episode of constitution-making in Zimbabwe, examines patterns of
continuity and change in relation to arguments promoting freedom of
worship, and critiques the new constitution in the light of the reality
of religious pluralism in Zimbabwe. In the article on Masculinism,
Gender and the Homosexuality Debate in the Constitution Making
Process of 2009-2013 in Zimbabwe, the author evaluates popular
constructions of homosexuality in Zimbabwe and how they shaped
debates on sexual orientation during the constitution-making
process, contending that any substantial debate on sexualities and the
constitution was made impossible by a masculine gender structure
that essentialises Zimbabweans as heterosexual. And the article on
Disability in Zimbabwe under the New Constitution: Demands and
Gains of the People with Disabilities looks at the provisions in the
new vis-a-vis the expectations and demands of people with
10
disabilities and concludes that the new constitution, unlike the

previous one, takes a more inclusive approach which is the one
preferred by the people living with disabilities, their organisations as
well as other people, organisations and interest groups interested in
the cause of people with disabilities generally.
Since the 1980s, Zimbabwe has been embroiled in a highly
contested process of constitution making, with the government on the
one hand instituting piecemeal changes to the Lancaster House
Constitution and on the other hand the people clamouring for a
wholesale change process with their full and active participation in
the hope of producing a constitution that fully reflects their wishes
and aspirations. More than three decades and 19 amendments on, the
demands of the people for full and active participation were met, and
a new constitution is now in place. The process (including
procedures involved) and issues (the substantive matters raised and
debated on) are worth a scholarly interrogation and advancement of
knowledge for Zimbabweans in general as well as researchers, think
tanks and other countries to learn from this experience. This special
issue of the Southern Peace Review Journal is but a part of that
interrogation.
Samuel Maruta
Editor-in-Chief
11
A Review of the COPAC led Constitution Making Process

in Zimbabwe (2009-2013)
Lawrence Mhandara, Shakespear Hamauswa & Charity Manyeruke
Abstract
This paper investigates the appropriateness and basis of the constitution
making process in Zimbabwe steered by the Constitution Parliamentary
Select Committee (COPAC). The process led to the replacement of the 1979
Lancaster House Constitution with a new constitution. The signing of the
Global Political Agreement (GPA) in 2008 and the subsequent formation of
the coalition government laid the foundation for the COPAC-led constitution
making process. A critical review of the COPAC process indicates that the
following were the major impediments to a truly 'people-driven' process:
vested tripartite political interests of parties to the GPA; the country's political
culture; and logistical deficiencies. Political interference overshadowed the
views of the people, which were only used to legitimise the outcome. The
proposition of this paper is that the constitutional draft, endorsed by
Zimbabweans in a significant 'Yes' vote on 16 March 2013 referendum, is a
product of a process which fails the objective test of a 'people-driven' process
as required by Article VI of the Global Political Agreement (GPA).
Key word: constitution making, coalition government, people-driven,
referendum
Lawrence Mhandara is a lecturer in the Department of Political and Administrative

Studies at the University of Zimbabwe.
Shakespear Hamauswa is a lecturer in the Department of Political science and
Administrative Studies at the University of Zimbabwe.
Dr. Charity Manyeruke is a senior lecturer in the Department of Political and
Administrative Studies at the University of Zimbabwe.
12
Introduction
A constitution is a written expression of the fundamental principles and
values of a society. It is a social contract between political elites and the
governed which shapes and regulates their relationship. In the words of a
former South African Chief Justice, Ismail Mohammed, “it is a 'mirror of
the national soul', the identification of the ideals and aspirations of a
nation, the articulation of the values binding its people and disciplining its
government…” (Mohammed in Hatchad, 2001: 210). Indeed, the purpose
of any modern state is to provide specific public goods within the context
of a constitutional arrangement that balances the need for good governance
on one hand and the enjoyment of guaranteed human rights by the
governed on the other. In post-colonial Zimbabwe, the balance has been
difficult to strike as the then existing constitutional order had proved
deficient in various respects necessitating numerous revisions over the 32
year period of its existence. The previous constitution crafted in 1979
under the Lancaster House Agreement was amended 19 times in a largely
piecemeal manner and without any comprehensive reform strategy
(Zimbabwe Lawyers for Human Rights, 2011).
Zimbabwe made several attempts at making a home-grown
constitution in the past, all of which failed until the coalition government
was formed in 2009. The basis for the coalition government was the Global
Political Agreement (GPA) which contained provisions for policy reform
including the constitutional order. The reconstitution of the modern
political system through constitutional reform should provide an
institutionalised framework for transparent and accountable government.
Elite-driven and imposed constitutions are considered anachronistic and
13
they undermine these principles (Mbaku, 2004). A 'people-driven' process

is therefore the preferred method for designing an enduring constitution
that enhances good governance. It is a widely held view that the
participation of people enhances the production of rules that are perceived
as legitimate instruments expected to regulate interaction in a political
system (Civil Society Monitoring Mechanism, 2011; Amnesty
International. 2011; ZESN, 2008; Mbaku, 2004; Sichone, 1998).
Using qualitative research methods, this paper investigates the
activities that were steered by COPAC in crafting a new constitution for
Zimbabwe. The objective is to establish whether the process corroborates
with the concept of a 'people-driven' process. The historical context of
constitution making in the country is explored to build a foundation for
evaluating the process.
Conceptual Framework
The yardstick for judging contemporary constitutional orders worldwide is
the American constitution which, founded in 1787, has endured to this
date. Among the existing democracies of his time, Tocqueville was
convinced that the first major democracy in the modern world is that of the
USA. He saw democracy as an irresistible new form of society and
government, and held the view that “the United States was the world's key
laboratory of democracy” (Ebeinstein and Ebeinstein, 1995). In his main
contribution to political thought, Democracy in America, Tocqueville
praises the general equality of conditions in America guaranteed by the
constitution. In an attempt to conform to democratic conditions such as
those in America, Zimbabwe made noticeable efforts to reform its
14
constitutional order.
The question as to what constitutes the most appropriate and
legitimate way to write a new constitution has locked Zimbabweans in a
ceaseless debate, yet parties to the GPA found an answer in a process that is
'people-driven' (Article VI of the GPA). The notion of a 'people driven'
constitution can hardly be conceptualised without proper guidance from
the political thoughts of Montesquieu. In his book The Spirit of the Laws,
Montesquieu (1989) argues that human beings mould institutions, and for
government to remain stable and orderly it is supposed to adjust to all
peoples. He defined a good government as an entity that respects liberty
and democracy. To him, ultimate sovereignty rests with the people who
choose the government. If at any point the people are not pleased with the
government, they can exercise their sovereign power to replace it. In the
context of constitution making, the people still retain the sovereign power
to replace a dysfunctional constitution. Montesquieu argued that
government is best that has a written constitution; that a constitution
should be in harmony with the customs, norms and values of the people
whom it serves.
The need to involve people in the process stems from the belief that
such involvement enhances the chances of having a document that is
relevant to the lives of the people. In seeking to establish whether the
COPAC-led process was 'people-driven' or not, it is important to
understand the meaning of the notion. Acknowledgement must be made of
the fact that the term 'people-driven' is one which resists precise definition,
but certain elements can be considered as constituting the phenomenon. In
its adapted sense as applied in a representative democratic system, 'people-
15
driven' implies a process in which elected officials take into cognisance

people's views through the latter's direct or indirect involvement. Thus,
'people-driven' in a constitution making process should be measured by the
fulfilment of three main requirements. Firstly, the resultant constitution
should be crafted by the people and so reflect the views of the same which
will constitute the basis for exercise of power by the politicians in
government. It must be a process where the views of the politicians will not
override people's preferences as expressed during consultations.
Politicians are then expected to uphold and protect the majority's views in
the ultimate charter. Secondly, there should be full participation of all
interested citizens. Fundamentally, there must be full scope for making
free contributions and debate during consultations and this can only occur
within a political environment that enables free political expression.
Participation does not start and end with public meetings but should be
consistent throughout by way of regular updates and effective mechanisms
for feedback. The role of the government then becomes one of facilitating
and guiding the process. Thirdly, the process should be independent from
the dominant politicians of the day. It must be led by an independent body,
which is 'non-partisan' in outlook or at least composed of moderate
professionals, although the problem of who appoints such a body will arise
and may affect its independence.
The most important matter therefore is that political interests in the
process should be minimal such that the outcome should reflect original
views of the people which are presented in technical language by legal
experts. This view resonates with Madhuku's assertion that “What makes a
process people-driven is the absence of leadership by politicians”
(eu.sundaynews.co.zw). The paper understands the notion of 'people-
16
driven' constitution making as a process that yields a document that is

predominantly based on the collective ideas gathered from the people. This
understanding stems from the reasoning that if a constitution is designed
for a specific context and people, it must reflect the tastes and preferences
of the people who would be regulated by the codified rules.
Methodology
Qualitative methodology was used because the research was interpretive
in orientation. It sought to examine how best to categorise the recently
completed constitutional process in view of the debate as to whether or not
the process was 'people-driven'. A longitudinal study was the design
preferred in order to analyse the trail of COPAC's activities from the initial
stages of the constitution making to the referendum. Documentary search
was used to gather data from various secondary materials such as books,
newspapers, websites and reports from COPAC and civil society
organisations. Content analysis was used to interpret collected data. The
data was then presented according to the themes that emerged during data
analysis.
Historical Developments
At independence in 1980, Zimbabwe adopted a compromised constitution
- a result of the circumstances and context within which it was formulated -
whose purpose was primarily to transfer power from the colonial authority
to the black majority people of Zimbabwe. This document, popularly
known as the Lancaster House Constitution, was an evolutionary
17
document that was designed to smoothen the transition from minority to

majority rule but with a disguised disposition to either fortify or perpetuate
minority white interests and certain retrogressive colonial practices. For
example, oppressive pieces of legislation like the Law and Order
Maintenance Act (LOMA, 1960) and exclusive white ownership of the
land were virtually retained in their colonial version. Ironically in 2002,
two equally repressive laws namely, the Public Order and Security Act
(POSA) and Access to Information and Protection of Privacy Act (AIPPA)
were enacted and maintained the text ensconced in LOMA. The police
were empowered to forbid any person from addressing any meeting, to
disperse any public gathering and to stop or impose any conditions on the
holding of any demonstrations. In sum, the two acts undermined the notion
of the rule of law within Zimbabwe. The government was empowered to
curb the bulk of the fundamental freedoms guaranteed by international
customary law related to speech, movement, assembly and association.
The enactment of oppressive legislation should be understood in
the context of internal political developments. Economic mal-
performance, recorded soon after the first decade of independence and
mainly attributed to corruption and austerity measures, gave birth to deep
resentment which condensed into widespread confrontational protests de-
campaigning the policies of the government. Such protests were led by
student bodies, civic organizations and the Zimbabwe Congress of Trade
Unions (ZCTU) which was an umbrella body for workers. With increased
restlessness, the protest movement coalesced to demand far-reaching
reforms including a complete constitutional make-over. The result of this
movement was the formation of the National Constitutional Assembly
(NCA) in 1997, which shouldered the responsibility to steer the ship
18
towards this national agenda. The NCA agenda constituted a central

problematique to Zimbabwe's political corpus as diagnosed by opposition
parties and the concomitant trade unionist sentiments. As a result, it
attracted interest from diverse groups including trade unions, opposition
parties, student groups, women's groups, representatives of the informal
sector and the church (Todd, 2007:408). The major rallying point was that
the Lancaster House Constitution was flawed from the moment of its birth
due to the concentration of power in the premier to the detriment of
democratic governance, an arrangement which violated the notion of
constitutionalism. Sithole (1999) notes that the NCA's creation was more a
reaction to the exercise of executive powers created by Amendment
number 7 of 1987 more than it was against the 1979 constitution. Voices of
political reform permeated every aspect of the political movement in
Zimbabwe, and deepening calls for a new constitution 'authored by the
people' became a common cause. The formation of the Movement for
Democratic Change (MDC) in 1999 to formally challenge ZANU PF rule
added more steam to the campaign for 'a people-driven constitution'.
Based on the belief that the country's problems were structurally imbedded
in the constitution, the NCA came up with its own constitutional draft in
2001.
With the challenge of the NCA and political pressure from the
MDC hurried attempts were made by the government to reform the
constitutional order with the “apparent intention of maintaining control
over both the review process and the contents of the new constitution”
(Hatchad 2001: 210). Yet, the attempt ended in futility as the government-
sponsored draft was rejected by the electorate in a February 2000
referendum. The outcome of the referendum was important in two ways: It
19
marked the first electoral defeat of the ruling party the Zimbabwe African
National Union-Patriotic Front (ZANU PF) and witnessed the emergence
and subsequent consolidation of a political culture that made it risky to
challenge the status quo.
Another search for a legitimate and credible supreme law was
made in 2007. This time the exercise was shielded from the public eye and
became part of the inter-party secret negotiation menu for a political
settlement. The attempt was made by Zimbabwe's three main political
parties represented in parliament – ZANU PF led by President Robert
Mugabe, the Movement for Democratic Change led by Morgan Tsvangirai
(MDC-T) and the Movement for Democratic Change led by Arthur
Mutambara (MDC-M). The result of this secret endeavour was the Kariba
Draft Constitution which unfortunately lacked the adequate legitimacy as
it was never submitted for approval by the citizens through a referendum.
The Kariba Draft Constitution was criticised by civil society organisations
as an attempt by the parties to impose a constitution on the people.
Restricting participation to partisan representatives was construed as an
attempt to deny people their legitimate right to write their own constitution
(NCA, 2009).
The harmonised elections of 29 March 2008 were conducted in a
political context that had been created through the facilitation of SADC
between ZANU PF and the two MDC formations. The outcome of the
election saw the MDC led by Tsvangirai winning 99 seats in the House of
Assembly, while 97 and 10 seats went respectively to ZANU-PF and the
MDC led by Mutambara. In the presidential vote, Tsvangirai won 47.9% of
the valid votes cast followed by Mugabe's 43.2%. The presidential election
20
result had no clear winner (who needed 50% plus one of the votes) thereby
paving the way for a second round of election that was held on 27 June
2008. While the harmonised elections were in line with the SADC
guidelines, the run-off was characterised by irregularities such as acts of
violence, intimidation and repression targeting Tsvangirai's supporters
(ZESN, 2008). Masunungure (2009) observes: “...the June elections will
go down in history as the bloodiest since independence.” The violence and
intimidation led to Tsvangirai's withdrawal from the race. The SADC
Election Observer Mission concluded that the pre-election environment
did not conform to the SADC guidelines despite Mugabe winning 85.5%
of the vote. The outcome was dismissed by the MDC-T as illegitimate.
Against the background of a disputed outcome, the African Union (AU),
through the Southern African Development Community (SADC),
brokered a political settlement that yielded Constitutional Amendment
Number 19 which led to the signing of the Global Political Agreement
(GPA) on 15 September 2008. The Agreement saw the formation of the
th
coalition government as constituted by the parties represented in the 7
parliament formed after the March harmonised elections.
A dissection of the GPA reveals that the agreement was to serve
two main purposes namely: power sharing and policy imperatives of the
new government. It is within the second purpose that the need for a 'people-
driven constitution' was recognised. Article VI of the Global Political
Agreement (GPA) explicitly provides for “the fundamental right and duty
of the Zimbabwean people to make a constitution by themselves and for
themselves; Aware that the process of making this constitution must be
owned and 'driven by the people' and must be inclusive and democratic…”
It further provides for the establishment of a select committee of
21
parliamentarians, the Zimbabwe Constitution Parliamentary Select

Committee (COPAC), to lead the process. The GPA also set out a series of
inter-connected activities for the process, starting with an all stakeholders'
conference followed by setting-up sub-committees chaired by a member
of parliament and composed of legislators and members of civil society.
This was to be succeeded by public consultations, a second all
stakeholders' conference, parliamentary endorsement of the draft and
ending with a referendum. The timelines set out in Article VI were not,
however, adhered to mainly due to inter-party disagreements and lack of
financial resources.
The COPAC process

The actual process toward a new constitution in Zimbabwe started when
the constitutional outreach programme was launched on 16 June 2010 at
the Harare International Conference Centre by the principals to the GPA.
The nationwide public outreach commenced on 23 June 2010 and the
outreach meetings were concluded within 90 days as stipulated by the
GPA. Despite the fact that up to 4 943 consultative meetings were held
countrywide (COPAC post-referendum media brief on Zimbabwe
Television), the COPAC driven process suffered from a number of
challenges that compromised the free and full participation of the people,
rendering the application of the term 'people-driven' mostly irrelevant.
Some of the reasons are detailed in the subsequent discourse.
Political culture
Article 18 (e) of the GPA states that parties to the agreement [GPA] should
“take all measures necessary to ensure that structures and institutions they
22
control are not engaged in the perpetration of violence”. Yet evidence

gathered indicates that there were some spontaneous clashes between the
supporters of different political parties. On 11 August 2010 two MDC
activists, Pedzisai and Muzambi, were attacked by ZANU PF activists
when they tried to attend a COPAC outreach meeting in Chipinge Central
Constituency (ZZZICOMP: 2010). Violence erupted on 19 September
2010 at Mai Musodzi Hall in Mbare, Harare where there were clashes
between ZANU PF and MDC supporters. It is alleged that one woman died
as a result of the skirmishes (Amnesty International, 2011). Chaos and
violent clashes were also witnessed in most consultative meetings in
Harare as well as throughout the country. For instance, in Dzivaresekwa
and Hatcliffe suburbs consultation meetings were either postponed or
chaotic. The trend shows that the political culture of violence that defined
the country's political processes prior to the inclusive government was still
alive. Echoes of violence and the resultant scenes of bleeding faces worked
against free and full citizen participation in the outreach meetings. Thus the
fear of repression, perceived or real, had a negative impact on the extent to
which people were eager to take part in the constitutional outreach process.
Hardly two days into the outreach programmes, Zimbabwe Peace
Project (ZPP), Zimbabwe Election Support Network (ZESN), Zimbabwe
Lawyers for Human Rights (ZLHR), and Independent Constitutional
Monitoring Project (ICOMP) observers were arrested whilst monitoring a
consultation meeting (Amnesty International, 2011). The argument is that
restricting activities of civil society organisations was tantamount to
exclusion of the people indirectly since a modern democracy cannot be
sustained without this constituency.
23
Political party leverage

Article VI of the GPA states that “it is the fundamental right and duty of the
Zimbabwean people to make a constitution by themselves and for
themselves” (the GPA, 2008). However, in the process under review,
political parties later led and assumed a dominant role throughout the
process instead of simply guiding it. This is evidenced by the fact that
rapporteurs and members of thematic committees were appointed on the
basis of political affiliation. The talking points were partisan and
suggestive, leading to a high probability that the outreach meetings did not
adequately represent the views of the people. People were left with very
little option or none at all to air their own views other than those proffered
by their political parties. The deception has always been to amplify the
voices of the politicians in the three coalition partners as that of the
ordinary citizens. The leaders in the three parties were entrapped in a false
assumption that their collective political desires are the same as the
ambitions of the people. Yet the reality is that politics is driven by self-
interest which is both achievable individually or in groups of like-minded
figures.
There is no doubt that in any modern political system, it is
impossible to include every citizen in the process of policy formulation,
hence people are represented by the elected leaders. Nonetheless, the duty
of politicians in this representative capacity is to act as agents of the people,
yet a closer examination of the COPAC process reveals that the political
parties dictated to instead of guiding them. Fundamentally, there is little
debate that it was the mighty who made the constitution (ZANU-PF and
the two MDC formations, especially the principals to the GPA) and not the
people per se. The people did not express their views freely as they were
24
forced to adopt party positions. To confirm that there was political

coaching and indeed that the process was political party-driven, the MDC-
T national chairman, Lovemore Moyo, urged supporters to wait for the
party's guidance at the referendum when he stated that “We should be
united when we go for the referendum…If we say it's okay, you have to
support us, even if we say it's not good you have to support us as well” (The
Herald, July 25, 2011). Indeed, the 'yes' vote which triumphed in the
referendum (2013, March 16) was sponsored by the coalition partners.
Even though there were violent episodes and political party
coaching, people were, to some extent, able to express their own views
concerning fundamental issues of rights and governance. However, issues
that the parties in government could not agree on among themselves, the
'sticking issues', were not presented to the people but rather to the
principals to the GPA who made binding decisions. Some of the sticking
issues include the extent of executive powers, and security sector and
media reforms. This was a disregard of Article VI of the GPA in that while
the principals had the mandate to represent the people in government, they
certainly abused that mandate in that four individuals ended up deciding
the fate of more than 12 million people in a secret meeting. A political party
is not the same as the people since people are members of political parties,
movements and organisations outside the parties to the GPA and the
coalition government. The principals dealt with the 'sticking points' of the
constitution through compromise thereby deviating from the original
views of the ordinary people made during the consultative stage. The
people did not create COPAC and whatever it produced is a product of
compromise among the COPAC members and their principals. The
COPAC process proved that the constitution was an elitist project, making
25
COPAC a self-serving institution.
Logistical challenges
Undertaking an important process such as constitution-making demands
that the deployed personnel should be well-motivated by the conditions
and environment in which they perform their duties in order to get them
focused on the task at hand. In Mashonaland East, for example, outreach
teams failed to conduct meetings as teams were evicted from hotels as a
result of non-payment or late payment of hotel bills by COPAC. At one
stage the Midlands outreach teams had to travel back to Harare for
accommodation after failing to secure accommodation (Civil Society
Monitoring Mechanism, 2011). COPAC also delayed the delivery of the
electronic recording equipment and translated booklets for the talking
points (Civil Society Monitoring Mechanism, 2011). This points to a
possibility that some of the indigenous language speaking citizens could
not have understood the proceedings of some meetings since the talking
points were stated in a language which they could not understand. Another
possibility is that not all views of the people were captured because some
meetings were held without recording equipment. The presence of
rapporteurs alone is not enough because of the human limitations
associated with such a task, hence the original idea to have both in the
process.
COPAC failed to furnish citizens with schedules of meetings on
time and progress of the process through both electronic and print media.
In some situations where COPAC publicised the meeting points and dates,
it failed to comply with the publicised schedules. For instance, it was
advertised in the Sunday Mail of 28 June 2010 that public consultations
26
were scheduled to be held in Guruve District of Mashonaland Central

Province but COPAC later decided to cover Shamva District without any
prior notifications (Civil Society Monitoring Mechanism, 2011). In some
isolated instances, consultative meetings failed to take place because the
people were not advised on time for the meetings or the message did not
reach the targeted people due to communication barriers. This pattern led
to a low turn-out in the event that the team finally arrived as most attendees
would have left for other pressing commitments.
COPAC blamed its logistical shortcomings on the fact that it had
difficulties in accessing the requisite funds from donors and government
on time. However, while COPAC admits that it faced daunting financial
challenges, some of the administrative and implementation challenges
could have been avoided. It could also have enlisted the help of civil
society organisations (CSOs) in the provision of some essential services
such as transport and multi-media facilities. As a result, it could have
achieved a lot more with fewer resources if direct consultation with or even
direct involvement of the CSOs had been allowed. It is a truism that a
number of these organisations have functional structures in rural areas
which they use in their work with specific interest groups which COPAC
could have taken advantage of by consulting or including in the process.
The public consultations were hurried in order to work within the
available resources. At a discussion in Harare, Professor Ncube, leader of
MDC-M, observed that critical issues had not been captured because the
outreach programme had been hurried, which led to core issues being
overlooked. He further noted that only a fifth of the things that were
supposed to be in the constitution were asked and that the time frame for
27
making the constitution tentatively put at 18 months was inadequate (The

Herald, 27 July, 2011). The fact that the process became victim to logistical
and political challenges is certain. Prime Minister Tsvangirai even
buttressed this view when he once said that his party would discard the
product of the present process if it got into power. The party positions
suggest that the dominant political parties rushed the process as a
springboard for the next election. This gives substantial credence to the
argument that the process was antithetical to a people-driven process. The
assertion therefore is that the process was a political exercise perceived by
the political parties as a necessary step for the holding of elections that
would end the coalition government.
Conclusion
This article has acknowledged that the meaning of the concept of a 'people-
driven' constitution is subject to varied interpretations, and is heavily
diluted and influenced by one's political persuasion. However, the analysis
of the COPAC process was guided by the definition of the concept as
referring to three conditions: while being cognisant of the fact that
constitution making is a political activity, the process should be immune
from the dominance of politicians in power; there should be full
participation of the people and this can only be possible in a conducive
environment; and the outcome of the process should reflect original views
of the people though clothed in technical language by legal experts.
Guided by this framework, it was established that among other reasons, the
dominion of political parties over the process, the country's political
culture and serious logistical problems presented obstacles to a 'people-
28
driven' process. Deducing from the foregoing, it is discernible that

Zimbabwe has not yet reached the stage at which a truly 'people-driven'
constitution can be crafted. The process was driven by politicians who,
instead of assuming a facilitator's role, dictated the contents and at critical
stages negotiated to accommodate their tripartite interests. The process
was politically driven and not people-driven, hence the constitution was
more of an elitist document contrary to the populist language that litters
Article VI of the GPA.
References
Amnesty International (2011). 'Challenges facing the Constitutional
Parliamentary Committee (COPAC) Outreach process since
inception,' http://wwwkubatanablogs,not/Kubatana/?p=3222.
Accessed on 12August 2013
Civil Society Monitoring Mechanism (2011). Annual Review of The
Performance of the Inclusive Government of Zimbabwe, February
2 0 1 0 - F e b r u a r y 2 0 1 1 ,
www.cisomm.org/index.php?option=comdocman&task...55...
Accessed on 12August 2013
Chiwanga, S. (nd). ' Will Zimbabwe produce a people-driven
constitution?'http://eu.sundaynews.co.zw/index.php?option=com_c
ontent&view=article&id=26799:will-zimbabwe-produce-a-people-
driven-constitution&catid=38:local-
news&Itemid=131#.UUrPmxwjxtM.Accessed on 11August 2013
Ebestein, W. & Ebenstein, W. (1995). Great Political Thinkers: Plato to the
th
Present. 6 edition. Beijing: Perking University
Hatchard, J. (2001). Some lessons of Constitutional Making from Zimbabwe.
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Global PoliticalAgreement, 2008
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Louise, O. (2007). Constitutional Review and Reform and the Adherence to

Democratic Principles in the Constitutions in Southern Africa,
OSISA
Masunungure, E. V. (2009). Voting for Change: The 29 March Harmonised
Elections. In: Masunugure, E. V. (ed). Defying the Winds of Change.
Weaver Press: Harare
Mbaku, J. M. (2004). Constitutionalism and Governance in Africa. West
Africa Review, Issue 6, pp.1-12
National Constitutional Assembly (NCA) (2009). Proposed draft constitution
for Zimbabwe. Harare: NCA
Sichone, O. (ed). The State and Constitutionalism in Southern Africa. Harare:
SAPES
Todd, J. G. (2007). Through the Darkness, A Life in Zimbabwe. Zebra Press:
Cape Town
Zaba, F. (2012). Mugabe fights knockout plot. Zimbabwe Independent, April 5
to 12, 2012
ZESN (2008). Report on the Zimbabwe 29 March Harmonised Elections and
27 June Presidential Run-off, Harare
Zimbabwe Lawyers for Human Rights (ZLHR) (2011). Zimbabwe
constitutional drafts: Comparison and recommendation. Harare:
ZLHR
Zimbabwe Briefing (2012). A crisis in Zimbabwe regional office weekly
report, Issue 96: 24-30, Harare: Crisis in Zimbabwe Coalition.
30
The Impact and Implications of Zimbabwe's Second All

Stakeholders Conference on Constitution Making
Charity Manyeruke & Farai Sasa
Abstract
As part of her constitution making process, Zimbabwe hosted two All
Stakeholders Conferences, the second one in October 2012. Among other
objectives, the conference subjected the draft constitution presented by the
Constitutional Parliamentary Select Committee (COPAC) to public
examination. This paper analyses the impact and implications of the
conference through examining its process, the content of the COPAC draft
constitution against the stakeholders' positions and the draft constitution that
was eventually presented to the electorate in a referendum. Political parties
and pressure groups came to the Conference with strong positions concerning
the content of the COPAC draft and while some of these positions resulted in a
deadlock, the study argues that the conference provided a platform for
subsequent negotiations. Using qualitative methodologies, the study
established that the conference enabled the exercise of democratic freedoms,
contributed towards the transparency of the constitution making process and
helped nurture a peaceful environment for subsequent elections.
Key words: constitution, constitution making, Zimbabwe
Dr. Charity Manyeruke is a senior lecturer in the Department of Political and Administrative
Farai Sasa is a social science researcher with interests in constitutionalism and security
communities.
31
Introduction
In 2009 under the auspices of an inclusive government and mandated by
Article Six of the Global Political Agreement (GPA) between the
Zimbabwe African National Union Patriotic Front (ZANU PF) and the two
Movement for Democratic Change (MDC) formations, Zimbabwe
initiated a constitution making process spearheaded by a Constitution
Parliamentary Select Committee (COPAC). As one of the mechanisms of
ensuring a people-driven and orientated constitution, the process required
that COPAC host two All Stakeholders Conferences. The first conference
was to be convened within three months of the formation of COPAC, and
the second was to be within three months of completion of the public
consultation process. This paper analyses the impact and implications of
COPAC's Second All Stakeholders Conference held in October 2012. This
paper analyses the events surrounding the conference focusing on their
effect on the constitution making process both as stepping stones and
stumbling blocks to the process. The paper further analyses the conference
in relation to power dynamics, democracy and national development, and
the COPAC draft prior and post the conference.
Methodology
The analysis is based on qualitative research techniques. A study of the
electronic media, particularly the internet, was used to obtain views of
various conference stakeholders. Information was also obtained from
COPAC newsletters as primary sources of information. Secondary sources
of information included newspapers, and books. Content analysis was
used to interpret and understand the information gathered.
32
Discussion andAnalysis
The Second All Stakeholders Conference was an important aspect of
Zimbabwe's constitution making process in that it catered for the
democratic right of public participation in governance. This is in
accordance with Article 21 of the United Nations (UN) Declaration on
Human Rights which states that “everyone has the right to take part in the
government of his country.” In addition, Article 25 of the International
Covenant on Civil and Political Rights states that “Every citizen shall have
the right and the opportunity… to take part in the conduct of public
affairs.” These international conventions, to which Zimbabwe is party,
have also been ratified regionally with article 13(1) of the African Charter
providing for citizens' participation in the government of their country.
Therefore, when the conference was convened in Harare to examine the
COPAC draft, the people of Zimbabwe were accorded the opportunity to
exercise their democratic right of participation in the constitution making
process.
According to the United Nations (www.unrol.org),
The term constitution-making covers both the process of
drafting and substance of a new constitution. The process
requires civic education, public consultation, human and
material resources and a structured (time intensive) national
dialogue or consultation process that feeds back the views of
the people to the decision makers involved in the drafting and
debating of the constitution.
The Second All Stakeholders Conference was an integral part of
Zimbabwe's constitution making process as it provided for national
33
dialogue and consultation. The conference and constitution making

process took place while Zimbabwe was under an inclusive
government comprised of competing political parties. Ndulo
(www.usip.org) asserts that “the process of constitution making can
become a vehicle for the consolidation of peace, allowing
competing perspectives and claims to be aired and incorporated.” To
this end, the conference provided an opportunity for the country's
different political parties to peacefully accommodate each other's
views during the constitution making process.
According to Skjelton (2006:43) a constitution making process
should afford the opportunity for consultation and accountability. This aids
in ensuring transparency and inclusiveness. Sajo (2005:3) argues that in
the consultation phase of constitution making, it is the duty of the citizens
to “identify contentious issues.” Mavuto (2007:15) places emphasis on the
importance of the involvement of citizens stating that their exclusion
places the legitimacy of the constitution at risk. Mavuto (2007:14) gives
the example of the Malawian constitution making process arguing it lacked
legitimacy as the process was dominated by local and international
experts. It is essential that citizens take an active part in formulating their
constitution to guard against the process being manipulated, hijacked or
having views suppressed. Hlatswayo (zimpolitic.blogspot.com)
emphasises the importance of public consultation in a constitution making
process stating that “modern ideas on constitution making place emphasis
on popular participation and widespread consultation in order to produce a
constitution which the people feel is truly their own.” This indicates that
citizen's level of involvement in the process of constitution making
determines the legitimacy of the process. The Second All Stakeholders
34
Conference in this respect added a level of legitimacy to the country's

constitution making process.
While public participation is an integral aspect of constitution
making, Mulisa (2009:30) argues that the notion of public participation has
not been fully defined. What is essential however is that there is the
involvement of people at various levels of the constitution making process.
The Second All Stakeholders Conference sought to ensure that the public
consultation continued given preceding outreach phases and the First All
Stakeholders Conference.
The objectives of the conference clearly articulate the public
consultation and involvement role in the constitution making process as
delegates from a cross section of society were able to make their input into
the constitution making process. Based on the terms of reference as given
by COPAC (www.copac.org.zw), the purpose of the conference was to
receive the report on the constitution making process from COPAC, to
receive the draft constitution from COPAC and to receive comments and
recommendations on the draft constitution from the Stakeholders. The
platform also accorded COPAC the opportunity to take note of the
comments and recommendations made concerning the draft constitution
and the constitution making process.
Conference atmosphere
In July 2009, COPAC hosted the Fist All Stakeholders Conference. The
opening of the conference was however disturbed when some delegates
engaged in unruly behaviour. The incident was described by some sections
of the electronic media such as Radio Voice of the People (4 April 2012)
“as consisting of mayhem, bordering on violence as the parties clashed on
35
ideological grounds.” Though order was eventually restored, these

disturbances threatened the successful hosting of the conference and the
smooth flow of the constitution making process in its initial stages.
While the second conference was relatively peaceful as compared
to the first one, an independent constitution monitoring project comprising
of Zimbabwe Peace Project (ZPP), Zimbabwe Election Support Network
(ZESN) and Zimbabwe Lawyers for Human Rights (ZLHR)
(www.zesn.org.zw) recorded incidents where “some delegates resorted to
intimidation, harassment, heckling and issuing verbal threats against other
delegates as they squabbled during the thematic breakaway sessions and
for expressing dissenting views.” Examples of skirmishes were reported
by the Newsday (24 October 2012) stating that “Temba Mliswa grabbed a
COPAC video camera and fled with it while traditional chiefs had a nasty
verbal exchange with MDC-T officials over their committee
deliberations.” These incidents though regrettable are inevitable given the
natural inherent diversity of opinions amongst any large group of people in
society exercising their constitutional right to freely express themselves.
The hosting of the Second All Stakeholders Conference without
any major incidents of violence is also commendable in that it proved to the
international community, especially those hostile to Zimbabwe, that the
country was capable of effectively and successfully fostering democratic
values and principles. Any chaos and upheavals at the Conference could
have been used as a means to discredit the constitution making process by
the international community. The conference therefore played a role as a
confidence building mechanism in and for Zimbabwe.
The constitution making process was an important precursor to the
36
country's harmonised elections held on July 31, 2013. Both processes

entailed electoral mobilisation, electoral outreach, voting and the raising
of significantly different positions concerning national policy and
governance. As such, a by-product of the conference as part of the
constitution making process was that it contributed to setting the tone for
the subsequent harmonised elections.
Impact and implications for power of political parties

The Conference was also crucial not only in defining the power relations
between those who govern and those who are governed but also had
significant implications on power relations among ZANU PF and the two
MDC formations. Mulisa (2009:43) notes that “in countries that are
preparing for election, it would be difficult to identify the genuine interests
of the various groups and parties as some contributions will be based on
partisan politics and power.” The constitution making process was a
process that the respective political parties in Zimbabwe tried to use for
political mileage. Given that harmonised elections were to take place
subsequent to the establishment of a new constitution, each party tried to
ensure that the new constitution would facilitate their interests by lobbying
for or against the inclusion of some provisions in the draft. In the name of
representing the people's and national interests disagreements arose
concerning the COPAC draft. Some of these disagreements are discussed
below.
Arguably, because of the political connotations of the constitution
making process, delegates at the conference ran the risk of projecting self-
centred positions. For example, Professor Ncube, the leader of one of the
MDC formations, boycotted the official opening of the conference. This
37
was in protest against the presence at the conference of his predecessor,

Professor Mutambara who had come on grounds of being a signatory to the
GPA. The two had been engaged in a leadership dispute over the
presidency of their party. Ncube was quoted in The Herald (23 October
2012) as having stated that the boycott was “because President Mugabe
and Prime Minister Tsvangirai had violated the Maputo SADC resolution,
which recognised him as the MDC leader.” To a great extent, SADC was
justified in recognising Professor Ncube as Professor Mutambara had
signed the GPA on behalf of the party and not in an individual capacity.
Politically, the boycott consolidated his position as party president.
However, it implied that political parties were willing to place personal and
party interests ahead of and at the expense of the constitution making
process.
In terms of political parties, the Conference was dominated by
the country's main political parties namely ZANU PF and the two MDC
formations. While it is appreciated that the constitution making process
was an initiative of these three parties through the GPA, there was still need
for other parties not signatory to the GPA to participate more actively in the
Conference as the constitution is a national charter and not a party charter.
The 'sidelining' of parties such as Mavambo Kusile Dawn (MKD) and
ZAPU for example imply that the country's political space remains largely
dominated by the MDC formations and ZANU PF while smaller parties'
interests in the constitution making process remained largely marginalized
relying on civil society to air and submit their views on their behalf. The
participation of civil society was commendable but also risked being
overshadowed by the fact that the constitution making process was a
politically driven exercise.
38
Impact and implications for democracy

The conference was also important in that to some extent it had the impact
of fostering democracy through affirming the democratic principle of
citizen participation in Zimbabwe. The conference provided a platform for
debate, inquiry and clarification of the COPAC draft and the constitution
making process. Arguably, the citizens of Zimbabwe were the major
stakeholders in the constitution making process and the conference
accorded them another opportunity to participate in the formation of the
national charter. Journalists, observers, diplomats, the private sector and
delegates from civil society, political parties and government all had an
opportunity to participate in the conference. Weber (2011:4) notes that
during a constitution making process “when all relevant groups in society
are involved in the dialogue and the priority-setting process is ensured,
actors from each social group are instilled with a sense of responsibility for
the rebuilding and reconciliation process.” As such, the conference gave
the people of Zimbabwe a sense of ownership over their future constitution
and sought to ensure it was relevant to them.
Leaders call for peace
The Second All Stakeholders Conference also revealed the interests and to
some extent the role played by the principals to the GPA in the constitution
making process. Addressing delegates at the conference, President
Mugabe as quoted by Machivenyika and Gumbo (2012) stated that “The
principals are the ones who caused this exercise and we are interested in it
being done properly. We say it should be a people-driven exercise.” While
some sections of society and the MDC formations sought to imply that
these sentiments reflected interference and a desire to hijack the process
39
from the people, it can also be argued that the principals had the right to
intervene in the process if it was not being carried out properly; the
principals played a supervisory role in order to ensure that the process was
conducted well.
The conference, in accordance with the GPA, was the last port of
call in terms of public outreach. Any remaining differences and
contentions would be handled by the principals subsequent to the
conference. In his speech to delegates at the cnference, Prime Minister
Tsvangirai stated that the constitution making process was
(www.zimbabweprimeminister.org) “a parliament-driven process in
which the principals and the executive must play a minimum part. We have
no intention whatsoever, at least on my part, to tamper or meddle with the
people's views.” In this respect, the Prime Minister reaffirmed the role of
the executive in the constitution making process. His remarks also reflect a
desire on the part of both ZANU PF and MDC-T to ensure the people
would take charge of the process. The SecondAll Stakeholders Conference
therefore, put the role of the principals during the constitution making
process into perspective and context.
Discrepancies
The Conference was also important because, according to ZANU PF, it
unearthed discrepancies between what was gathered during the outreach
phase of the process and what was contained in the draft. The Herald (13
December 2012) reported that ZANU PF “...argued that the draft had
deviated from people's views gathered during the outreach programme.”
As a result, it (ZANU PF) made amendments to the COPAC draft which it
believed captured the people's views. The implication of this is that there
40
were pressures upon the constitution making process which sought to alter
its outcome. It also implies that the conference played a significant role in
ensuring that the people remained central in the constitution making
process and added transparency to the process.
Contentious issues
A number of contentious issues arose among delegates at the conference
which could be described as pitting incumbents (ZANU PF) against a
challenge to the status quo (MDC). These issues included but were not
limited to the executive, security sector reform, a national prosecuting
authority, a land commission and a national peace and reconciliation
authority. While the COPAC draft was an official document for discussion
at the conference, ZANU PF, believing the draft had failed to capture
adequately the views of the people, amended the COPAC draft prior to the
conference and tried to table the amended draft at the event. Some sections
of the media claimed that ZANU PF had made up to 266 changes to the
COPAC draft, an allegation which the party's spokesperson, Mr Rugare
Gumbo, was reported in the Independent (5 October 2012) as denying,
stating that “his party was keen on 12 issues inclusive of sexual rights, dual
citizenship, presidential powers, role of traditional chiefs, running mates
and the prosecuting authority.” However, the MDC rejected these
amendments and advocated for a deadlock to be declared. As such, even
before the commencement of the conference, parties had already stood
their ground concerning what they wanted leaving little room for debate
and compromise.
In relation to the devolution clause in Chapter 14 of the COPAC
draft, contention arose between ZANU PF and the MDC formations before
41
the conference. According to the state-owned press, the Herald (14

December 2012), the former wanted devolution in the new constitution
while the latter was in favour of decentralisation. However, the provision
of the devolution clause in the final COPAC draft which was adopted at the
referendum reflects a win for the MDC formations, especially the MDC-N
(Movement for Democratic Change faction led by Welshman Ncube)
which has a political stronghold in Bulawayo; its manifesto for the
subsequent harmonised elections was entitled “Devolution is our new
Revolution", promising political autonomy and development to
marginalized communities.
Another contentious issue was that of the executive. While both
ZANU PF and the MDC formations were in agreement pertaining to the
capping of the number of terms any president can serve to two five year
terms, ZANU PF rejected demands by the MDC parties to reduce the age of
eligibility of presidential candidates from 40, as contained in Chapter 5
Section 91 (1b) of the COPAC preconference draft, to 35 years; it also
wanted sweeping presidential powers reinstated in the new constitution.
In addition, ZANU PF wanted two vice presidents, to which the MDC
formations were opposed. The retention of Chapter 5 Section 91 (1b) on
attainment of age 40 as being one of the qualifications necessary for
presidency, and sweeping presidential powers as enshrined in Chapter 5 of
the adopted constitution are evidence of gains ZANU PF achieved at the
conference and in the constitution making process.
In amending the COPAC draft, ZANU PF removed altogether the
provision for the establishment of a National Peace and Reconciliation
Authority contained in Chapter 12 Section 251 of the COPAC
42
preconference draft and advocated instead for the office of the Public
Protector. However, the provision for the National Peace and
Reconciliation Authority in Chapter 12 of the adopted draft serves to show
that there are some cases in which ZANU PF had to make concessions. The
same is true of the Land Commission, the independent Constitutional
Court and provisions on the Central Intelligence Organisation, all of which
ZANU PF had removed from its draft but were later allowed to be adopted
in the referendum draft.
The forgoing are not exhaustive aspects of the issues of contention.
They mainly serve to show that at the conference parties started with their
preconceived positions but had to negotiate and find a compromise for the
sake of progress. The conference therefore articulated the areas in which
the country's three main political parties agreed and disagreed. While it did
not wholly conclude the constitution making process as some of the issues
outlined above were only resolved after, the conference played a
significant role in identifying contentious issues and isolating them for
further attention.
While the conference was an important and major phase in
concluding the public consultation phase of the constitution making
process, it was to some extent indecisive in its conclusion. ZZZICOMP
(20012:2) states that “the conference ended without clarity as to the
immediate next steps that will be taken to finalise the draft.” Indeed it was
important for COPAC to provide clarity in this regard so as to reduce
tensions and loopholes for political manipulation. Its failure to articulate
how the remaining contentious issues would be negotiated led to
speculation and rumours of the hijacking of the process. ZZZICOMP
43
(www.zesn.org.zw) further argues that “constitution-making may be a

great nation-building event, but if the wounds are too recent, or the process
is not handled with extreme delicacy, the process may give rise to renewed
or new conflicts.” In this vein, COPAC left room for feelings of mistrust
and suspicion among the respective political parties in the inclusive
government which compromised the conclusion of the constitution
making process.
Indeed the lack of a clearly articulated and decisive way forward to
deal with contentious issues after the conference was a contributing factor
to prolonging the finalisation of the constitution making process. In the
case of Kenya, for example, Mulisa (2009:15) states that “it established
four organs to facilitate the review process and set out the procedure
through which the four organs would work to achieve consensus on
contentious issues and to be followed by a referendum.” This was a
contrast to Zimbabwe's case where the constitution making process was
chiefly driven and mandated by the GPA which was not necessarily a
legislative document and hence difficult to enforce at times. It took a
cabinet committee charged with breaking the deadlock reached at the
Conference to try and resolve the contentious issues. Thus when the
Second All Stakeholders Conference adjourned amidst contentious issues,
it was difficult for parties to break the deadlock and for citizens to
understand the process thenceforward. In the case of Kenya, the Review
Act provided that the Parliamentary Select Committee reaches a consensus
on the draft constitution. It would have been worth considering, in the case
of Zimbabwe, to take contentious issues back to the people for breaking the
deadlocks.
44
Subsequent to the conference, a Special Cabinet Committee was

established to deliberate on these matters. In January 2013, the Special
Cabinet Committee comprising Douglas Mwonzora, Munyaradzi
Mangwana and Mrs Angel Mahlamvana announced that it
(www.kubatana.net) had “resolved all issues except for the issue of the
running mates.” In relation to another “thirty contentious issues raised
during the Second All Stakeholders Conference”, a seven member cabinet
committee was tasked to bring finality to them (www.kubatana.net). After
several meetings the committee met with the principals on the morning of
Thursday 17 January 2013 and resolved the areas of disagreement.
Conclusion
The Second All Stakeholders Conference played an important role in
fostering public participation and in concluding the outreach phase of the
country's constitution making process. It also added legitimacy to the
constitution which was adopted in a subsequent referendum. True to the
fact that no constitution making process is perfect, the conference had its
flaws and was held at ransom on occasion, for political mileage.
Constitution making processes should adhere to minimum standards
which foster democratic principles.
In future, there is need for a clearly defined and legally reinforced
constitution making process which makes possible even greater public
participation than the Second All Stakeholders Conference. Political
parties in the country should also remember that constitution making is
more than a power play for them to gain mileage but is a process which
affects citizens' quality of life, freedoms and rights. As such, political
45
parties should balance their interests against those of the citizens. Finally,
constitution making is not a process which should be rushed but requires
huge amounts of time so as not to compromise the quality of the resulting
document.
References
Books
Skjelton, S. (2006). People's constitution: Participation in the South African
Constitution Making. Midrand: Institute for Global Dialogue
Weber, S. (2011). Constitution-making and Reform: Options for the Process.
Switzerland: Interpeace
Journals
Sajo, A. (2005). Constitution without constitutional moment: A view from the
new member states. International Journal of Constitutional Law, 3,
243
Papers
Mavuto, H. H. (2007). Popular Involvement in the Constitution making:
experience of Malawi: Paper presented at the World Congress of
Constitutional Law (Athens, Greece, 11-15August 2007.)
Speeches
Speech by the President of the MDC, the Rt. Hon. Morgan Tsvangirai at the
occasion of the Second All-Stakeholders Conference. Harare. 22
October 2012.Available at: www.zimbabweprimeminister.org
Websites
Daily News. 20 September 2012. Principals want peace at Copac conference.
Available at: www.dailynews.co.zw [ accessed: 22August 2013]
Daily News. 25 October 2012. Zanu PF wants imperial presidency reinstated.
Available at: www.dailynews.co.zw [accessed: 21August 2013]
46
Gumbo, L. December 2012. Cabinet team hits deadlock. [Online: The

HeraldOnline]. Available at: www.herald.co.zw [accessed: 10 July
3013]
Machivenyika, F. & Gumbo, L. (2012). MDC boycotts 2nd All Stakeholders'
Conference [Online: The HeraldOnline]. Available at:
www.herald.co.zw [accessed: 12 July 3013]
Machivenyika, F. & Gumbo, L. (2012). Principals have the final say [Online:
The HeraldOnline]. Available at: www.herald.co.zw [accessed: 12
July 3013]
Mawire, I. (2009). Democratisation and constitutionalism through
constitution-making process in Zimbabwe [Online, 9 July 2009].
Available at: www.zimpolitic.blogspot.com [accessed: 22 August
2013]
Murwira, Z. (2012). Zuma to Respond on Copac Draft amendments. [Online,
4 November 2012]. Available at: www.herald.co.zw [accessed: 20
August 2012]
Mushava, E. (2012). Drama rocks COPAC.Online: News Day]. Available at:
www.newsday.co.zw [accessed:17 September 2012]
Radio Voice of the People. (2012). Violence Likely At the Second Stakeholders
Conference: CSOs [Online, 4 April 2012]. Available at:
www.radiovop.com [accessed: 3 July 2013]
Share, F. (2013). MDC-T walks out on Cabinet team [Online: The
HeraldOnline]. Available at: www.herald.co.zw [accessed: 10 July
3013]
The Final Draft Constitution of the Republic of Zimbabwe. January 31 2013.
Constitution Select Committee
The Independent. Zanu PF 'keen on 10 issues. [Online, 5 October 2012].
Available at: www.theindependent.co.zw [accessed: 10August 2013]
United Nations Development Programme. UNDP Receives Additional
Funding from Development Partners for COPAC to Support
Constitution Making in Zimbabwe. UNDP Press Release, 24
November 2011.Available at: www.undp.org.zw
Voice Of America Zimbabwe. 22 October 2012. Zimbabwe's Mugabe,
Tsvangirai Appeal for Peace, Tolerance . Available at:
47
www.voazimbabwe.com [accessed: 22August 2013]

Women's Institute for Leadership Development. Progress made on
contentious issues in the Draft Constitution [Online, 9 January 2013].
Available at: www.kubatana.net [accessed: 19August 2013]
ZZZICOMP.2012. ZZZICOMP'S Preliminary Observations on the COPAC
Second All Stakeholders Conference Drafts. Available at:
www.zesn.org.zw [accessed: 17 September 2013]
ZANU PF Approved Amendments to the COPAC Draft Constitution of
Zimbabwe (18 July 2012)
Unpublished
Mulisa, T. (2009). Public participation in constitution-making: A critical
assessment of the Kenyan experience. Unpublished Dissertation.
48
Zimbabwe 2013 Constitution and its Implications on

Local Self-Government
Norbert Musekiwa & David Mandiyanike
Abstract
The paper analyses provisions relating to local governance in the recently
adopted Zimbabwe constitution. The primary question is whether the
architecture of local governance under the new constitution is consistent with
the principles of autonomy, resource adequacy, and clear demarcation of roles
and responsibilities that underpin local self-governance. The new constitution
recognizes local government, potentially promoting local self-governments as
autonomous spheres of government. Whilst rural and urban councils enjoy
constitutional rights to raise revenue and enact legislation, the provincial
councils have limited self-governance capacity - lacking significant
legislative powers and authority to generate own revenue. A novel aspect is
that local governments are guaranteed at least five percent of the national
budget expenditure in each year – enhancing financial autonomy and
promoting local self-governance. Consistent with the principles of local self-
government, political appointees are replaced by elected officials under the
new constitution. Yet questions still remain as to whether the constitution
provides for enhanced local self-governance.
Key words: Constitution, local authority, local government, local self-

government, provincial council, Zimbabwe.
Norbert Musekiwa is a lecturer in the Political Science and Administrative Studies at the
University of Botswana.
David Mandiyanike is a lecturer in the Department of Political and Administrative Studies
at the University of Botswana.
49
Introduction
Local governments are critical as they constitute the form of government
closest to the people. Local governments are responsible for offering basic
services particularly water and sanitation, health, and education. In that
regard, a deficit of service delivery by local governments has immediate
and deleterious effects on the poor and vulnerable citizens who rely on
these services most. This is because poor people have limited choices as
they cannot opt out of receiving public services by purchasing private
services.
Legal arrangements, among other factors, influence the service
delivery capacity of local authorities. This paper focuses on chapter 14 of
the constitution on local government and relevant provisions of chapter 17
on public financial management. The new constitution is a significant
improvement from the previous one as it recognizes local governments as
spheres of government and guarantees them a share of national revenue.
However, questions still remain as to whether the constitution provides for
enhanced local self-governance. The paper therefore seeks to establish the
extent to which the architecture of local government as espoused in the
new constitution is consistent with the principles of local self-government.
Although traditional leadership has been an integral part of local
government in rural areas since colonial times its role in local government
under the new constitution is not explicit. Traditional leadership that is
covered in chapter 15 of the constitution is therefore beyond the scope of
this paper.
The data for this paper was derived from reviews of public
documents - constitutions, statutes, court litigations and rulings,
50
ministerial orders, and reports by the Ministry of Local Government.

These sources of data were augmented by the authors' reflections.
Contextual background
In 1997, civil society groupings in Zimbabwe comprising students,
churches, academics, and labour coalesced to form the National
Constitutional Assembly (NCA) to campaign for constitutional reforms
(Nhema, 2002:142). The government responded to the formation of the
NCA by appointing a 400 member constitutional commission to consult
and come up with a draft constitution for submission to the nation in a
referendum. The proposed constitution sought, inter alia, to recognize
local government as a free standing sphere of government. On 14 February
2000, the government put the draft constitution to a referendum and lost to
civic forces that had campaigned for a 'NO' vote under the leadership of the
Movement for Democratic Change (MDC) party. It was the first time that
the Zimbabwe African National Union Patriotic Front (ZANU-PF) party
had lost any vote since 1980.
The government responded by amending the Land Acquisition Act
(May 2000) and the constitution (Constitutional Amendment Bill No 16 of
June 2000) giving itself power to compulsorily acquire agricultural land
and only compensate for improvements. Immediately thereafter (July
2000), government launched the accelerated Land Reform and
Resettlement Implementation Plan otherwise known as the fast track
resettlement programme. The fast track land reform drew condemnation
from western countries. The European Union and the United States
subsequently imposed economic sanctions on Zimbabwe resulting in a
51
dramatic decline in the economy between 2000 and 2008 (GoZ, 2010:1-2;
Musekiwa et al, 2013; Sachikonye et al, 2007). Over this decade of
economic collapse characterised by hyperinflation reaching up to 230
million percent by June 2008 (GoZ, 2010:1; RBZ, 2011), local
governments were adversely affected as they failed to deliver essential
services - infrastructure broke down, and qualified and experienced
personnel absconded in large numbers (Musekiwa et al, 2013).
Results of the general harmonized presidential, parliamentary, and
local government elections held in March 2008 and a presidential runoff in
June 2008 (boycotted by the only opposition candidate) were contested,
thereby fuelling the economic crisis further. The economic crisis subsided
after the three main political parties signed a Global Political Agreement in
September 2008 (chaperoned by the African Union and the Southern
African Development Community) and subsequently formed a
government of national unity (GNU) in February 2009. Among the
reforms agreed by the GNU for the transition period was the broad based
constitutional consultation process that resulted in a constitution adopted
by a referendum on 16 March 2013 and assented to on 22 May 2013 as
amendment number 20. This paper focuses on the extent to which this new
constitution enhances local self-government.
Principles underpinning local self-government

Two paradigms - the centralist and decentralist - have dominated the study
of local government recently (Musekiwa, 2012:232). The state-centric
centralist paradigm regards local government as a tier of government, an
extension of the central administration. Within the centralist paradigm,
52
sovereign governments assign responsibilities to local governments, and

regulate and supervise them to ensure that they do not overstep their
mandate (Ismail, Bayat and Meyer, 1997:14). Discourses on Zimbabwean
local government between 1890 and 1990 have been largely informed by
the centralist paradigm (Jordan, 1984; Marsh et al, 1974; Palley, 1966;
Weinrich, 1971). On the other hand, the decentralist paradigm considers
local government as a sphere of government worth granting constitutional
autonomy. The decentralist paradigm gained currency in Zimbabwe
following the adoption of the World Bank and International Monetary
Fund inspired economic structural adjustment and trade liberalization
programmes in the early 1990s.
Within the decentralist paradigm the dominant theory of local self-
government informs this paper. Several principles undergird the local self-
government theory. Local self-government requires the clear division of
functions and responsibilities between central and sub-national
governments. Each sphere of government should have specified functions
and powers and its relationship with other spheres of government made
explicit. Local self-governments should have autonomy to legislate within
agreed boundaries. The legislative powers of local governments also ought
to be outlined clearly in order to minimize overlaps and conflicts with other
spheres of government. Local governments should be free-standing and
ideally constitutionally protected spheres of government.
Local self-governance enables local governments to go beyond the
discharge of obligatory functions to exercising “broader ranging
permissive powers and functions which they may exercise or not as they
choose” (Jordan, 1984:7). The higher level cities - such as the capital
Harare - offer from local revenue a wide range of services including
53
infectious disease control hospitals, fire fighting services, housing,

reticulated water and sewer, and street lighting whilst the smaller rural and
urban councils are limited to the provision of schools, clinics, and roads.
The smaller rural and urban councils can provide these basic services only
after receiving subventions from central government (Sachikonye et al,
2007:80). In that regard, local governments in Zimbabwe have enjoyed
varying levels of local self-governance with the bigger urban cities able to
exercise a wider range of permissive functions whilst the smaller rural and
urban councils were restricted to offering obligatory functions (Jordan,
1984:7).
Despite enjoying wide ranging and varying powers, local
authorities in Zimbabwe are not always able to discharge their mandates
due to a number of factors. Top most of these factors is close supervision by
the parent ministry of local government (Bland, 2011:342). A case in point
was the Minister of Local Government's continued reappointment of
commissions for the city of Harare beyond the mandatory six months
despite the High Court and the Supreme Court ruling such reappointments
illegal (Sachikonye et al, 2007:77).
Significantly, local self-governments should also have adequate
resources – financial, human, and infrastructure – proportionate with their
statutory mandates. Therefore, competent local self-governments ought to
access clear, fair, and predictable revenue sources including
intergovernmental fiscal transfers proportionate with their mandate –
accepting the fact that central government revenue is limited and cannot
meet all public expenditure requirements. Additionally, local self-
government entails that the local governments have prerogatives regarding
54
expenditure decisions irrespective of the origins of revenue. Therefore

expenditure decisions by local governments ought to be final and binding –
subject to oversight and not approval by external stakeholders such as
other levels of government.
Constitutionalism and local government: From Rhodesia to

Zimbabwe
Modern local government in Rhodesia (now Zimbabwe) was first
introduced as part of colonialism in 1890. Despite occasional mention and
recognition in colonial constititutions, in practice, Zimbabwean local
government lacked constitutional recognition historically (Bland, 2011:
342; Makumbe, 1996; Marsh et al, 1974; Musekiwa, 2012:236;
Sachikonye et al, 2007:76-77). The 1923 responsible government
constitution was the first Rhodesian supreme law to recognize the idea of a
local government in the African areas through the provisions of section 47
“which permitted Native Councils to be established in any Native Reserve
by the Governor in Council subject to the approval of the High
Commissioner” (Palley, 1966:659). The 1923 constitutional provision on
local government was not implemented as consultations with traditional
leaders went on till 1930 and “instead, in 1931 the Letters Patent were
amended to permit the establishment of councils in terms of the
Constitution…” (Palley, 1966:659-660).
The 1931 amendment was also never implemented and instead the
colonial government set up Boards as a preparatory measure for the
establishment of councils (Palley, 1966:660). The Boards lacked
legislative powers and could only make recommendations and
55
“consequently, they turned into debating societies and found little support
among the African people” (Weinrich, 1971:14). In 1937, local
government ceased to have constitutional recognition when section 47 of
the 1923 constitution was repealed. Instead, from 1937 Native Councils
dominated by chiefs and headmen and a few elected 'tribesmen' - subject to
approval by the Native Commissioner - were established (Palley,
1966:661; Weinrich, 1971:14). The next constitutional reform in 1961 did
not specifically recognize local government but made reference to some
local government institutions such as the President of the Chiefs' Council
and other Chiefs' representatives as members of some constitutional
bodies (Palley, 1966:671).
Following a protracted liberation war that began in the late 1960s
and intensified in the 1970s, a Lancaster House peace conference in 1979
led to the enactment of a new 'cease fire' constitution providing for
majority rule. The Lancaster House constitution (and as amended 19
times) recognized only sections of local government and the majority of
local governments remained 'a gift' from the government and ruling party.
Sections 111 and 111A of the Lancaster House constitution (amendment
19) recognized the institutions of provincial governors and traditional
leaders. However, the mainstream elected councils of rural district and
urban councils were not constitutionally recognized and were constituted
in terms of appropriate Acts of parliament. Local governments in post-
colonial Zimbabwe till 2013 therefore existed at the pleasure of central
government.
The role of central government in enacting local government
legislation was demonstrated in 2012, when two Members of Parliament
56
from the opposition Movement for Democratic Change (MDC) –

Tangwara Matimba and Simon Hove - presented a private member's bill
seeking the amendment of the Urban Councils Act. The import of the bill
was to reduce the minister's powers over the urban councils. Ignatius
Chombo, the then Minister of Local Government, Rural and Urban
Development opposed the bill and approached the courts that ruled, in
Supreme Court case number 5 of 2013 (Judgment No SC5/2013), that the
global political arrangement entered into between the main political
parties reserved the proposal of legislation to cabinet. During the seventh
parliament therefore, enactment of local government legislation was
reduced to a preserve of government as even the national legislative
assembly could not initiate reforms.
Architecture of Local Government under the new

Constitution
Chapter 14 of the constitution which establishes urban and rural councils
demonstrates an uneasy compromise between the centralist and
decentralist paradigms. The preamble to chapter 14 reiterates the
supremacy of the state:
Whereas it is desirable to ensure: (a) The preservation of national
unity in Zimbabwe and the prevention of disunity and
secessionism; (b) The democratic participation in government by
all citizens and communities of Zimbabwe; and (c) The equitable
allocation of national resources and the participation of local
communities in the determination of development priorities within
their areas; There must be devolution of power and responsibilities
to lower tiers of government in Zimbabwe.
57
The preamble is an assurance to the centralists that the proposed

devolution is not intended to undermine the sovereignty of the state. To the
extent that the constitution emphasizes the supremacy of the state and
refers to local governments as 'lower tiers of government', it weakens self-
governance. Under genuine self-government, the various spheres of
government are recognized as free-standing though interdependent and
not as hierarchical tiers (Ismail et al 1997:138).
Notwithstanding the above, the new constitution recognizes local
government and creates a new level of local government - the provincial
councils. Beyond recognition, it outlines the functions of local
governments. Section (270) (1) (f) empowers a provincial council to
“exercise any other functions, including legislative functions, that may be
conferred or imposed on it by or under an Act of Parliament”. Section 276
(2) (a) gives local governments, the “power to make by-laws, regulations
or rules for the effective administration of the areas for which they have
been established”. This clause promotes local self-governance as it gives
local governments legislative powers.
The constitution is however equivocal regarding the nature of
functions and responsibilities that the local governments have competency
to legislate on. Furthermore, the constitution does not demarcate
responsibilities and functions between central government on the one hand
and provincial and local governments on the other. The assignment of
functions between various levels of government is bestowed on
parliament. In that regard, the responsibility to assign functions and
responsibilities to local government remains unchanged under the new
constitution. Despite constitutional recognition the level of self-
58
governance will, to a large extent, ultimately be determined by the Act of

parliament establishing the provincial councils as has been the case under
the previous constitution.
Further to recognition of local governments, the constitution also
provides that all members of local authorities be elected thereby
potentially enhancing accountability to the electorate. The provincial
council chairperson and mayor of a provincial metropolitan council shall
be elected from council members. This is an improvement as it promotes
accountability and self-government, unlike under the previous
dispensation where the provincial governors were appointed by the
president and served at his/her pleasure. However, it is unclear why section
277 (3) indicates that “mayors, chairpersons and councillors of local
authorities assume office on the day the president assumes office upon
being sworn in after a general election”. This therefore means that when no
candidate for president garners enough votes during the first round of
voting to win outright and there is an election re-run then the local
authorities will not be constituted for that period. The provision
demonstrates the tendency to centralise authority and necessarily
undermines the spirit of local self-government where the local authority
should deliver a constitutional mandate irrespective of the outcome of the
election of a national president. The clause could be an unfortunate
hangover from the previous constitution that regarded local governments
as subordinate structures and answerable to the centre and not the
electorate - as the principles of local self-governance demand.
Section 278 of the 2013 constitution provides for the expulsion of
elected local government representatives. An independent tribunal will
59
determine whether or not to expel an elected member. In terms of section

278 (2) of this constitution there are five reasons for recall, namely: (a)
inability to perform the functions of their office due to mental or physical
incapacity; (b) gross incompetence; (c) gross misconduct; (d) conviction
of an offence involving dishonesty, corruption or abuse of office; or (e)
wilful violation of the law, including a local authority by-law. The clause is
more consistent with principles of local self-government than the previous
scenario where the Minister of Local Government had unrestrained
mandate to discipline local authorities and elected councillors. However,
the provision is ambiguous as to what constitutes gross incompetence and
misconduct. The wilful violation of council by-laws potentially covers a
host of misdemeanours ranging from minor traffic offences to failure to
renew licences. Granted, local self-governance calls for leadership of high
moral integrity; however, it is contestable if the supreme law ought to
cover minor transgressions. And although it is proper to demand
uprightness from office bearers, section 278 of the constitution has the
potential to undermine self-governance as it still provides scope for
victimisation of elected representatives by the minister with oversight
responsibilities.
Though financial resources are critical to successful self-
government, the new constitution does not confer any revenue raising
powers on the provincial councils. The Zimbabwe Lawyers for Human
Rights (2013) notes that:
There are also limited legislative or executive powers given to
provincial councils and no guarantee that they will be able to
formulate and manage their own budget and utilise local resources
for the benefit of people in that particular region...
60
Curiously enough, the provincial councils do not have specific obligatory

functions besides coordinating central government programmes. It is
unclear whether this 'omission' was an oversight or by design linked to the
lack of revenue raising powers.
Unlike the provincial councils that have limited revenue raising
powers, urban and rural councils have the 'power to levy rates and taxes
and generally to raise sufficient revenue for them to carry out their objects
and responsibilities'. Therefore, local governments do not require any
other authority, particularly central government authority, to impose rates
and taxes. The explicit revenue raising permission enhances local self-
governance by promoting financial autonomy of local authorities.
Hitherto, taxing powers of local governments were subject to approval by
the Minister of Local Government as he/she approved their estimates of
revenue and expenditure (Bland, 2011:342).
One historical achievement of the constitution is the enhancement
of the financial autonomy of local governments through revenue sharing
among the various levels of government. Section 301 (3) specifies that,
“not less than five percent of the national revenues raised in any financial
year must be allocated to the provinces and local authorities as their share
in that year”. This is a significant improvement from the previous situation
where local authorities relied on begging central government - hat and
bowl in hand - for annual allocations. However, the adequacy of the five
percent allocation for local government is debatable given the number of
local authorities covered.
For example, in 2013 the total estimated government expenditure
was US$3,860,000,000 of which US$440,271,000 were statutory
61
appropriations (Ministry of Finance, 2012). According to the five percent

revenue sharing formula, local authorities would have received a
minimum of US$193 million in 2013. This translates to an average of
US$2.1 million per council for the 92 councils – taking cognizance that the
actual allocations would vary as per mandate, size, and needs. The creation
of provincial councils increases the number of local governments by ten to
102 further reducing the amounts that can be availed per local authority.
The indicative estimates of expenditure for 2014 are US$4,506,919,000
(Ministry of Finance, 2012), hence a minimum of US$225.35 million
would be guaranteed to local governments. Each of the 102 local
governments would therefore receive an average of US$2.21 million in
terms of the new constitutional guidelines on revenue sharing between
central and local governments.
The five percent is inadequate to meet the minimum capital
requirements for most local governments and indeed might undermine
self-governance as local authorities fail to access resources proportionate
with statutory mandate. A capacity assessment of the local government
system in Zimbabwe undertaken in 2013 indicated that most local
authorities required to leverage external loans as government loans of up to
US$3 million per council were grossly inadequate to meet their immediate
capital expenditure requirements (DeGi, 2013 [Annex 4]). Commenting
on the meagreness of the proposed intergovernmental fiscal transfers,
Matumbike (2013) argues that:
The five percent provided for in the constitution will not meet the
expectations of the local authorities particularly the resource poor
local authorities who will be looking towards central government
funding to supplement locally raised revenue in order to provide
62
the country's basic standards of service.

The threshold of five percent is also less than half the minimum of the 11
percent that the exchequer has been globally allocating for constitutional
and statutory appropriations since dollarization in 2009. At the minimum
therefore, a level of 11 percent of national expenditure for local
governments – already being allocated for constitutional and statutory
provisions at the time the constitution was approved and assented to –
would have been justifiable.
Another challenge is that there are no guidelines on how the five
percent will be shared between the provincial and local governments of
different sizes – ranging from Mvurwi Town Council with a population of
10,491 to the City of Bulawayo with 655,675 inhabitants and Harare with
1,468,767 residents as at August 2012 (ZimStat, 2012). The constitution
therefore undermines local self-governance by failing to provide an
appropriate revenue distribution criterion among the local governments at
the various levels and of the varying sizes.
The limitations of statutory fiscal transfers might force local
authorities to leverage external loans in order to meet their mandate. In
terms of section 299, parliament shall set the limit of public debt and
overall expenditure by local authorities. The constitution is however
equivocal as to the percentage of national GDP the local authorities can
borrow internally and leverage from external sources. A known limit of
local authority credit promotes local self-government as it eliminates the
possibility for varied interpretation by the national executive. An example
of 'best practice' in this regard is Botswana, one of the few countries to
register average positive GDP growth over four decades since
63
independence in 1966. In that country, public debt, including both local

and central governments, is limited to forty percent of GDP with a
maximum of twenty percent each for both domestic and foreign
components of debt (GoB, 2006).
Transparency and accountability through audits promote councils'
capacity to borrow successfully. The Auditor-General is empowered by
section 309 (a) of the constitution “to audit the accounts, financial systems
and financial management of all departments, institutions and agencies of
government, all provincial and metropolitan councils and all local
authorities”. It is improbable that the Auditor-General has the necessary
capacity to audit all local governments' books given the dramatic increase
in the number of institutions to be audited. Traditionally, a government
parastatal body, Urban Development Corporation (UDCorp), audited local
governments' accounts. However, by the mid-1990s a majority of councils
had several years of outstanding unaudited accounts largely because
UDCorp could not meet demand for auditing services by local authorities
(Mandiyanike, 2006:230; MLG&NH, 1998:21). In response to UDCorp's
inability to meet demand for audit services and within the spirit of
deregulating central government involvement and the capacity building
initiatives for local authorities (consistent with the character of self-
governance), from the late 1990s councils were empowered to engage
private accounting firms to audit their accounts (Mandiyanike, 2006:232).
In that regard, the new constitution reverses the gains made in self-
governance that permitted councils to assume more autonomy in
appointing auditors. Local governments - in the interest of local self-
governance - should be entitled to appoint their own auditors.
64
Conclusion
By recognizing local government, the new constitution promotes local
self-governance significantly. To a large extent, political appointees are
replaced by elected officials, thereby freeing local governments from
undue direct interference from central government. Unfortunately, the
provincial councils are hamstrung by lack of resources as they do not have
any independent sources of revenue. Significantly though, provincial
councils and local authorities are guaranteed five percent of public revenue
annually, a welcome improvement from the previous arrangement.
However, the proportion of the budget earmarked for local government is
indubitably low and inadequate to meet local authorities' mandates. Yet,
the demarcation of functions and responsibilities between central and local
governments remains ambiguous under the new constitution; this task was
left to parliament, a move that potentially undermines local self-
governance.
References
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authorities in transition. Public Administration and Development, 31,
340–350
Development Governance Institute (deGI). (2013). Capacity building for
local government and service delivery-Zimbabwe: Draft report of the
2013 local government capacity assessment. Harare: Development
Governance Institute (deGI)
Government of Botswana (GoB). (2006). Mid-term review of National
Development Plan 9. Gaborone: Government of Botswana (GoB)
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Government of Zimbabwe (GoZ). (2009). Constitution of Zimbabwe (as

amended by Constitution Amendment No. 19). Harare: Government
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(amendment 20). Harare: Government Printers
Ignatius Chombo v. (1) Parliament of Zimbabwe (2) the Speaker of Parliament
(3) the President of the Senate (4) the Clerk of Parliament (5)
Tangwara Matimba (6) honourable Simon Hove.(May 20,
2013).Judgment No. SC5/2013 (Supreme Court of Zimbabwe May
20, 2013). Harare
Ismail, N., Bayat, S., & Meyer, I. (1997). Local government management.
Johannesburg: Thomson Publishing
Jordan, J. D. (1984). Local government in Zimbabwe. Gweru: Mambo Press.
Makumbe, J. M. (1996). Participatory development: The case of Zimbabwe.
Harare: UZ Publications
Mandiyanike, D. 2006. In search of capacity: The case of Zimbabwe's rural
district councils. Unpublished PhD thesis. Royal Holloway,
University of London
Marsh, E. G., Roper, E. D., & Kotzé, D. A. (1974). Local government in
Rhodesia. In W. B. Vosloo, D. A. Kotzé, & W. J. Jeppe (eds.), Local
government in southern Africa (pp. 183-230). Pretoria & Cape Town:
Academica
Matumbike, C. (2013, February 19). Observations on ZLHR comments on the
COPAC draft constitution. e-mail to Norbert Musekiwa.
(Norbert.Musekiwa@mopipi.ub.bw).Accessed on 11August 2013
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http://www.zimtreasury.gov.zw/estimates-of-expenditure. Accessed
on 15 July 2013
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Harare: Ministry of Local Government and National Housing

Musekiwa, N. (2012). The role of local authorities in democatic transitions. In
Masunungure, E. & Shumba, J. (eds.). Zimbabwe: Mired in transition
(pp. 230-251). Harare: Weaver Press
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capabilities of local governments in post crisis situations through
public participation: The case of Zimbabwe. In Manyeruke, C. &
Phiri, G. C. (eds.), Complexities of transformation in Zimbabwe (pp.
84-107). Harare: OSSREAZimbabwe Chapter
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liberalization. Harare: University of Zimbabwe Publications
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1888-1965: With special reference to imperial control. London:
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(2007). Consolidating democratic governance in southern Africa:
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67
A Review of the Doctrine of Separation of Powers in

Zimbabwe (1979-2013)
Lawrence Mhandara, Shakespear Hamauswa & Eve Nyemba
Abstract
The doctrine of separation of powers is at the centre of modern democratic
principles of governance. The emergency of the doctrine can be located within
the Western political tradition. The doctrine focuses on nurturing the values of
good governance by putting in place mechanisms that guard against the abuse
of power by key institutions of the state. To achieve this, the doctrine
accentuates the separation of government functions into the legislature,
executive and judiciary arms so that each exercises specific functions within
the constitutional limits. This study sought to analyse the applicability of the
doctrine in Zimbabwe from the 1979 to the 2013 constitution. Evidence
gathered through archival methods was used. The research established that
under the 1979 constitution, the doctrine was severely undermined by the
concentration of power in the executive relative to other branches. It is further
established that although the 2013 constitution empowered the legislature to
check the exercise of executive powers, the latter still retains substantial
powers. To this extent, it is concluded that the doctrine is applicable to the
Zimbabwean context only to a limited extent.
Key words: governance, state, government, Zimbabwe
Lawrence Mhandara is a lecturer in the Department of Political and Administrative Studies

at the University of Zimbabwe.
Shakespear Hamauswa is a lecturer in the Department of Political and Administrative
Eve Zvichanzi Nyemba is a lecturer in the Department of Political and Administrative
68
Introduction
At the moment of independence in 1980, Zimbabwe adopted a
compromised constitution, a result of political negotiation between the
colonial establishment and the nationalists. Sachikonye (2011:4) notes that
“the constitution was negotiated under the conditions of duress. Presided
over by Britain, the constitution reflected the 'balance of forces' involved in
independence negotiations as well as the power balance within the
Southern Africa region at that particular conjuncture.” This has resonance
with Mandaza’s (1986:2) argument that “the conduct of the Lancaster
Conference itself, the various concessions that the guerrilla
representatives had to make...all tended to reflect a result less than that
which might have been expected of a national liberation movement had it
won outright victory on the battlefield.”
The Lancaster House Constitution was not supposed to be
significantly amended during the first ten years. After the expiry of that
restriction there was no urgent attempt to review and reform it, perhaps
because of the general stable economic growth prevailing then. Meredith
(2002:46) describes the early stages of post-independence Zimbabwe as a
period characterised by a “brief but memorable honeymoon”. The
'honeymoon' witnessed a period of relative socio-economic and political
stability. However, political and economic dysfunction recorded soon
after the first decade of independence saw the emergence of burning issues
related to democracy, land ownership and human rights, all of which
demanded fundamental constitutional reform. The agenda for
constitutional reform attracted the interest of Zimbabweans mainly
because of the propensity by the executive to introduce amendments to the
69
constitution that pitched the system at the level of a presidential monarchy

by bestowing near-absolute power in the president, in the process eclipsing
the judiciary and the legislature (Makumbe and Compagnon, 2000; Sithole
1999; Sachikonye, 2011).
The aforementioned constitutional amendments incited spite,
sustained critique of the presidential powers forcefully emerged and the
reform agenda became a priority in dealing with the democratic deficiency.
The National Constitutional Assembly (NCA), a political pressure group
with particular interest in rewriting the constitution, was then founded in
1997 as a vanguard for this national agenda (Todd, 2007). The formation of
the Movement for Democratic Change (MDC), a new political party
opposed to the status quo, in 1999 added more currency to this cause. By
December 2001, the NCA had come up with its own constitutional draft.
Under the irresistible challenge of the NCA, civil society and the
opposition, hurried attempts were made by the government to reform the
constitutional order with the “apparent intention of maintaining control
over both the review process and the contents of the new constitution”
(Hatchad 2001: 210). Yet, the attempt ended in futility as the electorate
rejected the draft in a February 2000 referendum.
The search for a new charter continued despite failure of previous
attempts. Based on the conviction that the country's problems were
structurally embedded in the constitution, another search for a legitimate
and credible supreme law was secretly made in 2007 by the country's three
main political parties culminating in what has come to be known as the
Kariba Draft. The Kariba draft again failed to culminate into a formally
accepted framework for constitutional reform, probably because its
70
formulation never involved the participation of the people. Against the

background of a disputed presidential run-off election of June 2008, the
African Union (AU), through the Southern African Development
Community (SADC), brokered a political settlement which led to the
signing of the Global Political Agreement (GPA) on 15 September 2008.
The GPA was legally incorporated into the existing constitution as
amendment number 19. An analysis of the GPA reveals that the agreement
was to serve two purposes: Firstly, it articulated the formula for a new
government and secondly, it tackled the policy issues. It is within the
second purpose that the need for a new constitution is ultimately
recognized. A select committee of parliamentarians, the Constitutional
Parliamentary Select Committee (COPAC), spearheaded the process
leading to the referendum held on 16 March 2013, and one in which the
'Yes' vote triumphed. Ultimately, a new constitution emerged.
This paper discusses the importance of the doctrine of separation
of powers in Zimbabwe's new constitution. In pursuit of that objective, a
comparative analysis of the old and the new constitutions is undertaken.
Reference is also made to the South African and United States of America
constitutional developments. It discusses the meaning, nature and purpose
of the doctrine and the extent/or manner in which it has been entrenched.
The doctrine is discussed in the context of change in focus from
constitutionality to constitutionalism. Constitutionalism is grounded in the
desire to develop a political culture that respects good governance, human
rights and social justice (Sachikonye, 2011). This agenda calls for a
constitution which restrains government excesses and one which protects
ordinary citizens (Centre for Democracy and Development, 2000).
71
Methodology
Qualitative methodology was used for this study. A comparative analysis
approach was the design preferred in order to analyse the old and the new
constitution in Zimbabwe as well as make reference to other
internationally recognised democratic constitutions in South Africa and
the United States of America. As such, the study relied on documentary
search especially of the Zimbabwean constitution as well as other
researches and studies that have examined the concept of separation of
powers in Zimbabwe. Content and thematic analysis was used to interpret
the data collected. The findings were then presented according to the
emerging themes.
The analysis proffered in this article is based on the doctrine of 'separation
of powers.' The modern arrangement of the doctrine is traceable to the
political philosophy of John Locke, who accentuated the desirability of
separating government functions into legislative, executive and judicial
arms. This was thought to be consistent with the ideals of good governance
since the beholder of power is precluded from abusing his authority or
usurp power. The doctrine was subsequently popularised by the French
philosopher, Montesquieu. The doctrine instructs that clearly defined
functions, duties and responsibilities are assigned to distinct institutions of
government with a clear line of competence and jurisdiction (Ncube, 1995;
Gubbay, 1999; Mojapelo, 2013).
72
From a traditional perspective, the doctrine of separation of

powers means that each of the three arms of government should be
responsible for specific functions and no institution should interfere in the
functions of the other. Bradley and Ewing (2008) postulate that the concept
may denote at least four different things: That the same person should not
be part of more than one organ of government; that one arm of government
should not control or interfere with the work of another; that one organ of
government should not exercise the functions of another; and that the
principle of checks and balances applies, which requires that each state
organ should be constitutionally empowered to keep a check on the
exercise of functions by the other organs in order to maintain the balance in
the distribution and exercise of power. In fact, the executive will be
accountable to the parliament and the judiciary will constantly monitor
both the parliament and the executive. This principle of checks and
balances, however, gave rise to a constitutional dilemma of the doctrine of
separation of powers.
The paradox of the doctrine is that, while there should be a
separation and autonomy of institutions of the same government, it is
expected that a democratic constitution should guarantee mechanisms for
each branch to place limits on the powers exercised by the other branches.
In constitutional 'lingo' the meaning of the three terms is important.
Rautenbach (2003) notes that legislative authority is the power to
formulate, amend and abrogate (changing the texture or edifice of the
constitution) the rules of law; executive authority is the power to execute
and enforce the law; and the judicial authority is the power to determine the
nature of the law and its application in the event of disputes arising. Yet, it
should be acknowledged that absolute and rigid separation of powers is not
73
possible in practice since the three organs are in reality part of one
government. Overlaps are inevitable for the efficacy of the modern state
since institutions of the same government must be interdependent.
Equally, even though all democracies have separation of powers, the
balance of power between the key organs of government varies from one
system to another.
In understanding the doctrine, it is also important to evoke its
purpose. The elementary function of the doctrine is to prevent arbitrary
exercise of power by the key organs of government if power is
concentrated in one place. The exercise of power should then be subjected
to constitutional limits. Such constitutional checks are designed to ensure
that organs of government act within their boundaries. Through the checks
and balances concept, the doctrine further seeks to make the branches of
government accountable to each other. Dicey (1959: 337) observes that the
doctrine hinges on “the necessity...of preventing the executive, the
legislature and the courts from encroaching upon one another's province.”
A detailed discussion on the application of the doctrine in Zimbabwe's
constitutional order follows.
The 1979 Constitution:APresidential Democracy System

The old constitution enshrined separation of powers in chapters IV, V and
VIII. The constitution provided for election of the legislators and the
president separately, and made both accountable to the public. In terms of
Section 79B, judicial independence was maintained by the removal from
office of judges only on limited grounds and after a proper investigation,
but the independence of the institution was tainted by their direct
74
appointment by the president.

The executive was empowered to exercise legislative functions in
terms of section 32 of the constitution. Under the Presidential Powers
(Temporary Measures) Act and the Emergency Powers Act, the president
enjoyed unfettered temporary legislative powers. Section 51 of the
constitution states that the president has 21 days within which to assent to a
bill passed by parliament. In the event that he withholds his assent, the bill
will be returned to parliament. If the House of Assembly resolves, by a two
thirds majority, to send back the bill to the president, the president had two
options: to assent to the bill within 21 days; or dissolve parliament. In
effect, the president had the power to veto legislation that threatens or
contradicts his political interests.
In terms of section 34, of the 93 senate seats, the President had
discretion to appoint five senators, 10 provincial governors and 18 chiefs.
This meant that an individual had the power to elect at least 35% of
members of the upper house, while more than 12 million Zimbabweans
elected not more than 65%. The irritating possibility was that the
allegiance of the appointees was to the president and not to the people,
thereby giving the president substantial control over senate business. In
terms of sections 31H (5) (a), 62(1) and 63(1), the president had the power
to dissolve or prorogue parliament at his own discretion. Section 29
empowered parliament to impeach and remove the president and prime
minister from office by a two thirds majority vote of each house. However,
the president could counter this by calling for a general election,
dismissing cabinet or resigning himself.
On paper, the constitution clearly articulated the doctrine but the
75
executive was more powerful relative to other branches of government. It

created a de facto monarchy with an elected president. There were no
adequate checks and balances among the three arms of government where
the judiciary and parliament operated under the shadow of the executive.
The parliament was dominated by presidential proxies bent on serving his
political interests. So was the judiciary, which was ineffective in reviewing
executive policies to ensure constitutional compliance (Biti, 1999). In the
greater part, the constitution violated the notion of limited government.
Ncube (1991:171) remarks that:
“this resulted in a rejection of some of the principles underpinning
constitutionalism. The 'power map' of the independence
constitution which created a 'controlled' executive has been
revised in such a way that power has been shifted in favour of the
executive arm of the state... the process of achieving executive
hegemony involved the constitutional 'overthrow' of the
legislature by the party which then asserts its superiority over all
organs of state power.”
Although the observation is more than two decades old, it remained
relevant until amendment 19 came into force in 2009. In terms of schedule
8 of this amendment, sections 115 (1), 115 (2) and 115 (3) of the old
constitution lightly diluted the president's powers by not only sharing
executive functions with the prime minister, but also required the
incumbent to consult the prime minister on some issues of national import.
Conceivably, there is no country in which the doctrine is applied
strictly and absolutely. In Zimbabwe, just like in any modern state system,
there were no clear dividing lines between the executive, legislative and
judicial functions. Since there cannot be complete separation of powers
76
between the key branches of government, the doctrine seeks to

institutionalise independent exercise of power but that power should be
subject to relative balance. Although there were overlaps of functions
under the old constitution, provisions limiting the exercise of power by the
executive were deficient. The former Judge President, Rita Makarau, once
remarked that in Zimbabwe there was gross violation of the doctrine
(www.thezimbabwetimes.com). This view corroborates Fombad's (2006)
observation that despite the fact that the doctrine can be provided for in
constitutions in a number of ways, the scope of checks and balances that
are intrinsic to the doctrine shrink due to the powers conferred on the
executive compared to other branches of government.
The Concept of Separation of Powers under the 2013

Constitution
The 2013 Zimbabwean constitution presents a major shift from the 1979
Lancaster House Constitution. Under the new constitution, the president
shares some of his executive powers with the parliament. Section 88
subsection 2 of the constitution states that the executive authority of
Zimbabwe vests with the president who exercises it subject to this
constitution through the cabinet. For example, section 111 sub-section 1
gives the president power to declare war and to make peace. The section
states that the president has power to declare war and make peace, and must
advise the Senate and the National Assembly within seven days after
exercising such power. This power is then subjected to parliamentary
control through Section 111 subsection 2 which stipulates that the Senate
and the National Assembly by a joint resolution passed by at least two
77
thirds of the total membership of Parliament may resolve that a declaration

of war should be revoked. In the event that Parliament disapproves the
declaration of war concerned, the President is only left with one option - to
comply with the decision of Parliament. Subsection 3 of section 111 states
that:
“where the Parliament has resolved that a declaration of war
should be revoked, the President must take all practical steps to
disengage from the war, taking into account the need to ensure the
safety of Zimbabwean personnel and equipment.”
This new development can be viewed as a move towards the idea
of sharing of powers rather than strict adherence to the concept of
separation of powers. Such a measure will fail to yield intended results if
the president is the head of his political party and if his party controls the
parliament. In such a scenario, the president's partisans, some of whom
double as cabinet ministers will not be able to challenge the decision of the
president who is their party president. However, the move is a better
compromise necessary for ensuring checks and balances.
Another shift in favour of the separation of powers took place in
relation to the declaration of a state of emergency. Section 113(2) of the
new constitution states that “A declaration of state of emergency ceases to
have effect after fourteen days beginning with the day of publication of the
proclamation in the Gazette, unless, before the end of that period, the
declaration is approved by at least two thirds of the total membership of
Parliament in a joint sitting of the Senate and the National Assembly.” If
the parliament disapproves the declaration, the president is obliged by the
constitution to rescind his decision. The same applies, according to section
111(5) “if the declaration of the state of emergency is not approved after
78
consideration by parliament or if for any reason it is not considered by

Parliament within the period specified in this section|”.
The president has to share power in foreign relations with
parliament as parliament can declare null and void the treaties and
agreements entered into by the president. Section 327(2) states that an
international treaty which has been concluded by the president or under the
president's authority does not bind Zimbabwe until it has been approved by
parliament, and does not form part of the domestic law of Zimbabwe
unless it has been incorporated into law through an Act of Parliament. This
development strengthens the concept of checks and balances.
The new constitution also provides for the establishment of a
judiciary which is independent and free of undue interference from
politicians and any other government officials. Section 164 (2) subsection
2(a) states that “neither the state nor any institution or agency of
government at any level and no other person may interfere with the
function of the courts.” This intention of ensuring the independence of the
judiciary goes hand in hand with the concept of separation of powers.
However, the manner in which the judges are appointed remains a threat to
the independence of the judiciary. Under the old constitution, judges were
appointed by the president; in the new constitution nothing has changed.
Section 180 (1) of the new constitution provides that “the Chief Justice, the
Judge President of the High Court and all other judges are appointed by the
President.” Through such appointments, the president will wield too much
influence on the operations of the judges.
Although the president's power of removal of executive
appointees such as the commissioners and judges among others remains
79
intact under the new constitution, the number of appointments he can make
have been significantly reduced. The president no longer has power to
directly appoint individuals into the senate. As such, the new constitution
creates an opportunity for the legislature to make laws and exercise its
oversight duties independent of the executive or the president. To
strengthen this the new constitution specifically states that “the parliament
has power to ensure that the provisions of the constitution are upheld and
that the state and all institutions and agencies of government at every level
act according to the constitution and in the national interest.”
Similarly, the president no longer has power to appoint provincial
governors directly; this gives provincial authorities latitude to develop and
implement policies independent of the president or the executive. Under
the old charter, the president handpicked provincial governors; as a result
these governors merely functioned as representatives of the president in
the provinces, rather than being heads of provincial governments.
As was the case with the old constitution, the new constitution still
accords some residual powers to the president. For instance, parliament
cannot easily pass a vote of no confidence in the president. Section 109(4)
of the constitution provides that “the Senate and the National Assembly by
a joint resolution passed by at least two thirds of their membership may
pass a vote of no confidence in government.” However, in the event that
parliament has passed the vote of no confidence the constitution provides
that the president must remove all ministers and deputy ministers from
office and dissolve parliament and call a general election within ninety
days. Thus, the power that the parliament has over the president is only to
challenge some of his/her decisions but not to remove him/her from office.
80
Lessons from SouthAfrica and United States ofAmerica

In South Africa, the doctrine of separation of powers is clearly stated.
Mojapelo (2013: 38) notes that the development of the doctrine of
separation of powers in the current SouthAfrican constitution dates back to
the Constitutional Principle VI. Schedule four of the interim constitution
provided that:
There shall be a separation of powers between the legislature,
executive and judiciary, with appropriate checks and balances to
ensure accountability, responsiveness and openness.
In addition Mojapelo (2013:39), states that, “it is axiomatic that the
doctrine of separation of powers is part of the South African constitutional
design.” Mojapelo cited the case of Glenister v. President of the Republic
of South Africa, where the then Chief Justice (CJ) Langa stated that, “the
doctrine of separation of powers is part of the South African constitutional
design.” According to Langa CJ, Chapters four to eight of the South
African Constitution provide for a clear separation of powers between the
three spheres of government, namely the judiciary, the legislature and the
executive. Section 43 of the South African constitution vests legislative
powers in the parliament for national issues while for provincial issues the
power vests in the provincial legislatures. Section 85 of the same
constitution vests executive powers of South Africa in the president and
section 165 gives the judicial authority to the courts. Therefore, at
theoretical, legal and institutional levels the doctrine of separation of
powers is clearly stated and provided for.
However, the doctrine of separation of powers in South Africa has
81
not been strictly applied in practice. This view came out clearly in a
number of constitutional cases in that country. For instance, in the case of
South African Association of Personal Injury Lawyers v. Health,
Chaskalson CJ had to make a comparison on the applicability of the
doctrine in South Africa and the United States of America and Australia.
Chaskalson concluded that, “in all the three countries there is no absolute
separation between the legislature and the executive on the one hand, and
the courts on the other”. Mojapelo (2013:39) notes that in most cases, the
Constitutional Court has held that the doctrine of separation of powers
does not always have to be strictly applied. It is important to note that strict
application of the doctrine might end up diffusing the powers of the
government, making it ineffective in responding to matters that require
urgent response.
In the United States of America (USA), the doctrine of separation
is well provided for in the constitution. As is the case in many situations
government powers in America are shared among the legislature, the
executive and the judiciary. However, as is the case with South Africa,
Zimbabwe and other countries, there is no absolute separation of powers in
the USA. This is clear when one considers the inclusion principle of checks
and balances. Rautenbach and Malherbe (2004:79) note that the principle
of checks and balances in the USA requires different branches of the state
to keep a check on one another in order to maintain a balance of power
amongst them.
In certain circumstances, the USA president wields more powers
than the other branches of government (the legislature and the judiciary).
Morris (2012:2) states that, in America, “the power of appointment is one
82
of the president's greatest formal strengths.” However, unlike in

Zimbabwe, the American president's power of appointment is diluted by
limitations placed on the power of removal. Thus, once the appointments
have been made and approved the president cannot remove the appointed
officials at will. Morris (ibid) argues that the president may do so at his own
risk, and cited Clinton's example where he removed the Seven Travel
Office Employees in the Travelgate. Clinton's actions prompted a lengthy
and politically damaging investigation by congress. In Zimbabwe, the
president's power to remove certain officials is not limited.
Conclusion
The doctrine of separation of powers is an important aspect of democracy
and good governance as its principles reduce the dangers of arbitrary use of
power by government officials. From 1980, the government of Zimbabwe
sought to promote the doctrine of separation of powers through
differentiating the main arms of government namely: the legislature, the
judiciary and the executive. Unfortunately, the introduction of the
executive presidency in 1987 affected the practicality of the principles of
separation of powers. This was mainly due to the powers vested in the
presidency vis-a-vis the legislature and the judiciary, which opened doors
for indirect pressure on the other two branches of government. The new
constitution, which came into being in 2013, took positive steps towards
ensuring the practicality of the principle of separation of powers in
Zimbabwe. Nonetheless, the president still wields considerable powers
over the judiciary and the legislature. From the comparative analysis
provided for in this paper, it was noted that while the functions of the three
83
arms of government are differentiated clearly at institutional level, the

doctrine of separation of powers is not always applied strictly or rigidly.
The USA and South African experiences also show that rigid application of
the doctrine of separation of powers is not possible.
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85
The Devolution Debate and the New Constitution of

Zimbabwe: An Exploratory Evaluation
Innocent Chirisa, Archimedes Muzenda & Charity Manyeruke
Abstract
At the centre of the devolution debate are issues of spatial and territorial
organisation, natural resources management and fiscal resource allocation.
Devolution protagonists argue for space for increased popular participation
and substantive powers to the local people in their quest for identity and self-
determination. Nevertheless, fears against the adoption of devolution emerge
from the viewpoint of regional disparities and resource unevenness. To
understand the devolution debate in the Zimbabwe constitution-making
process, we draw parallels from a number of countries – Brazil, India, Kenya,
Ghana and the United Kingdom. Through textual and discourse analysis, we
find a common ground upon which the devolution thrust as now enshrined in
the new constitution can bring harmonious development in the unfolding
Zimbabwe. Critical to note are issues of diamond and other mineral
'discoveries' in the period of the debate, the long-time debates of the
underdevelopment of Matebeleland region, and the new concept of community
share ownership trusts. We conclude that devolution is challenging to
implement on a radical scale since the elites in power should be the ones to
give up functions and resources.
Key words: devolution, constitutionalism, community ownership
Dr. Innocent Chirisa is a lecturer in the Department of Rural and Urban Planning at the
University of Zimbabwe.
Archimedes Muzenda is an undergraduate student in the Department of Rural and Urban
Planning at the University of Zimbabwe.
Dr. Charity Manyeruke is a lecturer in the Department of Political and Administrative
86
Introduction
This article interrogates the devolution thrust in light of spatial and
territorial organisation, natural resources management and fiscal resource
allocation. It critically examines these questions contextualizing the new
constitution of Zimbabwe in the global devolution practice thereby
mapping the way forward on the devolution route. It notes that popular
participation and the transfer of powers to the local people in their quest for
identity and self-determination are integral to the devolution philosophy.
However, there are also fears that the adoption of devolution exposes
centre-local conflicts as the state's interests often collide with the interests
of local communities. By textual and discourse analyses, the article seeks
to find a common ground upon which the devolution thrust as now
enshrined in the new constitution can bring harmonious development in
the country.
A constitution is a legal tool that organizes and manages
governance and state power (Bruch et al., 2001, Kersting, 2009). It defines,
distributes and organizes the use of state power to govern the society and
run the state affairs at large. There are two approaches on governance and
management of state powers: the single-dimensional approach, which
articulates a single horizontal dimension producing a centralized
government system and is characterised by the concentration of power
(Kangu, 2011) and the multi dimensional approach, which organizes and
manages state power in multiple lines. Multi-dimensionalism combines
the vertical and horizontal levels in governance thereby forming the
foundation of devolved systems and government structures. It is the one
based on the devolution concept (Kangu, 2010).
87
At the centre of local development are questions of

decentralisation in its various forms including de-concentration,
delegation, privatisation or divestment and devolution. It is clear that de-
concentration (also referred to as administrative decentralisation) is the
common form of decentralisation in most African countries. For instance,
passport offices are located in the provincial centres of the country. De-
concentration means that critical decisions are the only ones which will be
referred to the headquarters. On the other hand, delegation is about the
passing of responsibilities of administration and finance to semi-
autonomous bodies (not wholly controlled by government) like parastatals
and state universities. Divestment or privatisation normally involves the
government handing over its responsibilities to private companies. Of all
these forms of decentralisation, devolution is considered by scholars and
think tanks as decentralisation in its 'truest' sense (World Bank, 2003;
Norman and Massoi, 2010; Cabral, 2011). Theoretically, devolution has
been interpreted as the creation of relatively autonomous realms of
authority, responsibility and entitlement, with a primary accountability to
the localities themselves. Rihoy (2009) notes differences in the narrative of
devolution which is concerned with autonomous entities that do not have
to be situated within the central government administrative hierarchy. It is
characterised as an authoritative surrender of function by the central
government to the local authorities that is complete, permanent and of a
constitutional magnitude. It brings winners and losers; the potential losers
are the politically powerful tyrants, who, in defence of their statusquo,
always advocate for centralisation of power (Tannenwald, 1998a; Agrawal
and Ostrom, 2001). The next section will provide the context of the
devolution thrust.
88
Context of the Devolution Debate

The bulk of Africa's population relies on exploitation of natural resources
for its livelihoods. These natural resources are located in specific local
areas depending on the hydrological, climatological, geological and
sometimes ecological qualities of the areas. This makes the issue of use
and governance of natural resources and resource distribution crucial in
most African societies. Pre-colonial, post-colonial and colonial state and
local community discourse is thus ridden with puzzles to find a sustainable
path in resolving challenges in the use and management of resources
(Kilonzo, 2011). Nationally, devolution of power has long been a subject
of interest to many including politicians, policy makers, academics,
international watchdogs, civil society groups and local communities
themselves. In the constitutional debate that characterised Zimbabwe
under the Global Political Agreement (15 September 2008 to 31 July
2013), devolution has been discussed as a pillar for local development.
Advanced by the formation of the Movement for Democratic Change
(MDC) party, the concept has been contested strongly by ZANU PF. The
controversies that characterised the constitution-making process have
provoked some developmental questions. For example, how is the framing
of devolution an aspect of institutional and democratic constitutionalism?
What ought to be exact elements of devolution of power with respect to
natural resources and management of territorial sub-national units? How
best are complexities arising from the process to be resolved? While
devolution must be carefully planned in Zimbabwe, it has been hijacked by
leaders for political expediency. Two previous constitutional drafts, the
89
Kariba Draft and the Law of Zimbabwe Model Constitution, both

contained the quest for devolution.
Literature Review and Conceptual Framework

Devolution is conceived as the most extensive form of decentralisation
given its emphasis on increased empowerment of local organisations
having no direct government interference and increased public sector
efficiency (Lessmann and Markwardt, 2011). It is defined as the transfer of
power and authority from central governments to legally established,
locally elected political authorities within a country for political and
developmental motives (Johnson et al., 2005). A devolved system is
expected to have clear and legally recognised geographic boundaries to
exercise power and perform a public function. Devolution has allowed
self-financing, administration and responsibilities at local levels in those
countries that have adopted it. Hence, devolution is envisaged as a
facilitating tool towards effective local participation, good governance and
democratisation of development processes.
Theoretically, devolution takes many forms - administrative,
executive and legislative (Tannenwald, 1998b). Protagonists argue that
devolution promotes control by citizens over decisions that affect them
thereby facilitating equity and participatory approaches to development
within local arenas (Jacobs and Chavunduka, 2003). In natural resource
management and development, devolution focuses on the transfer of
natural resource management to local individuals and institutions located
within and outside of the central government (Yuliani, 2004). In
Zimbabwe one tool that has emerged in the management of natural
90
resources has been the Communal Areas Management Programme for

Indigenous Resources (CAMPFIRE) which was started in the late 1980s.
This was the government commitment towards localised planning and
implementation in which full control of wildlife management to rural
communities was granted to promote sustainable use of wildlife by the
communities.
Overall, there are a number of challenges that militate against the
effective implementation of devolution. Jacobs and Chavunduka (2003)
have observed that most of the developing countries are riddled with
authoritarianism, the maintenance of traditional leadership and playing to
the tune of colonial legacy. In addition, and in general, societal structures in
the developing world, as argued by Chirenje et al (2013) revolve around
small clusters of communities that are characterised by geo-political,
economic and cultural bonds, typical of rural areas. Such settings imply
top-down decision-making regimes (Chirenje et al, 2013). Governmental
accountability at local level is critical in local and regional development.
Nonetheless, apathy and domination of local governance by national
agendas are hurdles militating against devolution in developing countries.
Overall, developing countries adopt models of developed nations leading
to 'decision wars' between western and eastern models. Western models
tend to publicize the notion that democracy is the route to achieving
development, but the eastern model holds that democracy is the result of
development. These challenges combine to dampen the support for
devolution.
Chambers (1983) argues that centralised approaches to
development impose ideas, hence development, on people without their
91
consent. He argues for the recognition of the fundamental importance of

the rural poor hence the bottom-up approach to rural development, a
variant of devolution. Centralised systems work on disciplinary
specialisation using tools to examine the rural situation. Devolved systems
on the other hand depart from external analysis of the condition of poor
people, their resources, aspirations and problems in favour of a focus from
within thereby giving a better conceptualization and a rich ground for
democratic development (Chambers, 1983). Yet there are also
controversies on the fruits of devolution in developing countries which
have had the effect of holding back its constitutional enshrinement.
Lessmann and Markwardt (2011) and Smith (1997) observe that in
developing countries, decentralisation tends to promote parochial and
separate tendencies thereby deepening authoritarianism and exacerbating
inequalities. Thus, rather than devolution empowering the local
marginalised communities, the powerful elites tied to the central
government hierarchies still control development on behalf of the local
communities thereby negating the benefits of devolution.
Case Studies in the Devolution Debate and Practice

Globally, the recognition of devolution initiatives in the constitution
process has been remarkable. Even ostensible unitary government systems
such as Japan, France, and Italy adopted devolution to allow local
communities full responsibility for managing local resources and political
control of developmental processes at local levels (Carroll, 2012). The
following are case studies of the devolution thrust.
The United Kingdom (UK)
92
The UK experienced devolution in its early years basing on the model that
democracy is the pathway to development. Its devolution system is
asymmetric, having different levels of devolved responsibilities with no
common pattern. Scotland, Wales and Northern Ireland all have different
forms of devolution. Scotland has a parliament and an executive developed
from the Westminster model. Under the Scotland Act 1998, the parliament
can pass statutes and the executive can make secondary legislation in areas
other than those that are reserved for Westminster. Kincaid concludes that
what is currently referred to as devolution is more accurately called
“restoration” or “rebalancing” of powers between the federal government
and the states to conform more closely to what the authors of the
constitution had in mind. In the case of Wales, there is a consultative
steering group spearheading consultation on the working of the local
parliament. The case of the UK is indicative of the general pattern of local
development in developed countries. States (the equivalent of
Zimbabwean provinces), districts and counties have the powers to
formulate own policies and statutes to direct and control this development.
However, central governments normally have to trust that the actors who
wield the devolved powers are trustworthy and do not work against
national interest.
Brazil
Brazil has had a long history of federalism. This dates back to 1889 when a
federal republic was established (Chotreva, 2009). Since then, the
devolutionary shifts have largely followed political cycles where
authoritarian governments favoured greater centralization of power while
more democratic ones were more closely associated with devolution
93
(Chotreva, 2009). The constitution of 1988 increased the political

influence and fiscal autonomy of state and municipal governments. This
devolutionary trend was accompanied by a high growth in the share of
federal tax transfers to sub-national governments which rose from 18
percent in 1980 to 44 percent in 1990. As a result, the sub-national
governments today account for almost half of public expenditure
(Chotreva, 2009; Swenson and Deller, 2001). The Brazilian case is
important to note given the increase in local revenues that it has created for
the sub-national level of government. No doubt that the availability of such
great resources is instrumental in improving infrastructure provisioning
and maintenance as well as the general well-being of the local
communities.
India
India is quasi-federal; it is neither unitary nor federal but a combination of
both. During its devolution process, the central government maintained its
influence and managed the process largely to its own advantage (Miraflor,
2013). After realising the overconcentration of power on few national
elites until the early 1980s, there was a strong drive to redress the power
imbalances. The devolutionary federal policy of self-determinism for
Indian tribes which was adopted in the mid-1970s shaped sustainability,
economic prosperity and eradicated poverty in local communities in India
(Cornell and Taylor, 2000; Mohan and Shyjan, 2009; Vischer, 2001).
Poverty eradication is at the centre of devolution. To achieve this goal
redistributive policies have to be clear and articulate clearly the notion of
social justice. Moreover, the policies must transparently deal with the
problem of elite capture as done in the Indian devolution thrust.
94
Ghana
Ghana's contemporary devolution process arose prior to the democratic
transition in the early 1990s. When the government introduced the Local
Government Law as a legislative reform in 1988, 110 districts were created
in Ghana's ten regions operating on democratic platforms of governance
(World Bank, 2003). The 1992 constitution consolidated the aim of
devolution. The objectives of the devolution were centred on concretising
and expanding local democracy, facilitating social and economic
development, eradicating poverty as well as enhancing people's choice
(Government of Ghana, 2008). This constitution recognised the diversity
of local government systems by decentralising “the administrative and
financial machinery of government to the regions and districts and by
affording all opportunities to the people to participate in decision-making
at every level” (Government of Ghana, ibid). Yet crucial democratic
elements remained compromised, especially through the retention of
presidential appointments and non-partisan local elections (Government
of Ghana, ibid).
Kenya
Kenya is one of the African countries where the devolution process was
born out of political turmoil. It is characterised by a diverse population
with ten major and more than thirty minor ethnic groups and
geographically varying needs across the arid and semi arid north, the
highlands, the rural northern rift and the various urban centres (FDKP,
2012). Historically, Kenya has been characterised by centralisation of
political and economic power in the hands of the elites, and an uneven and
unfair resource distribution and access to social services (Kangu, 2010;
95
Nyanjom, 2011). Kenya's devolution process generated remarkable hope

within the local communities as well as provoking over expectations
among local communities. The constitution provided the local institutions
with the responsibility for service delivery in keeping with the principle of
subsidiarity. The principle of subsidiarity states that local government is
closer to the everyday needs of the communities hence ought to have
oversight in the provision of those needs. The Kenyan central government
remains with the critical role of oversight over the national budget and
national priorities. Considering the long-standing history of distrust
between the national government and the local stakeholders, Gikonyo
(2013) observes that the absence of such levers gave equality among all
government structures since no level of government became superior to
another. The 2008 post-election violence preceded the adoption of the
constitution that healed a decade of failing devolution attempts
(Governance and Transparency Fund, 2011). The constitution
dramatically devised a new Kenya through enactment of transparent and
accountable institutional frameworks (Kangu, 2010) that guaranteed
unconditional transfer of certain minimum powers to counties.
The Zimbabwean Devolution Debate

Structurally, Zimbabwe is a two-tier system of government comprising of
the central government and the local governments emanating from the
Prime Minister's Directive of 1984 to decentralise governance. During the
pre-colonial era Zimbabwe comprised several fragmented chiefdoms that
ruled across the country. Each tribe governed its own territory without a
'national' overseer of all these tribes. While the local people depended on
96
exploiting the local natural endowments, the powers to control their usage
were vested in the kings in an autocratic system. Contemporary cases
needing attention in the mantra of devolution include budgeting, regional
marginality and the exploitation of mineral or other resources in local
areas.
Budgetary process and outcomes

The budgetary system in Zimbabwe is largely top-down. It follows
statutory provisions but the power to make the budget work eventually lies
with the responsible minister. In the area of local government, while urban
ratepayers are given a platform to participate in formulating the budget,
they play a mannequin role as the central government sometimes meddles
capriciously in the affairs of local communities. Consequently, financial
allocation indicates the goals of the central government rather than the
local communities' needs.
The Matabeleland marginalisation

Matabeleland has suffered neglect of its many developmental projects
over the years. The Matabeleland region comprises of three provinces of
Zimbabwe - Matabeleland North, Matabeleland South and Bulawayo –
and contributes 15 to 20 percent of the total population of the country. The
region is marginalised and underdeveloped; regardless of whether the
government adopts the bottom-up or top-down approach to development,
its status quo seems to remain the same. While there is turmoil cutting
across political, social and economic spheres, the case of Matabeleland is
akin to internal colonisation which is aggravating its marginalisation
(Mabhena, 2010). It would be extremely difficult to understand the socio-
economic and political dynamics of southern Matabeleland without
97
recognizing the role of ethnic conflict and persecution in the making of this
region. While the politics of domination shaped the development agenda
of Matabeleland, critical issues remained unresolved as the 1980s conflict
stirred from the central government left the region devoid of development.
The Chiadzwa diamond debate

In the making of the new constitution (2009-2013), the discovery of
Marange diamonds in the Manicaland Province became a critical issue in
the management of mineral resources. Instead of advancing the agenda of
devolution in the new constitution, the discovery of diamond resources in
Marange might have become a political tool against devolution in the name
of regional resource imbalance. While the Manicaland region has become
the source of income for the nation, localisation of local resources has
remained a nightmare. The discovery of the precious mineral, which has
the potential to contribute more than half of the country's GDP, has had the
effect of entrenching centralised approaches to harnessing the revenues.
Discussion and PolicyAlternatives

Zimbabwe has unevenly distributed natural resources across the country.
It has burning regional disparities whose local communities have used as a
tool to lobby for devolution. The question is whether lack of devolution has
caused the regional disparities or whether devolution will exacerbate the
already existing disparities. The perceived failure to develop the
Matebeleland region during the 1980s when infrastructural advances were
being made in other parts of the country is linked to the Gukurahundi
massacres (Solidarity Peace Trust, 2011). Mabhena (2010) argues that
whether a bottom-up or a top down approach is adopted in Zimbabwe, the
98
status quo in Matabeleland will largely remain the same. Regardless of the
shift in development thinking and practice since independence which
created the more populist stance of bottom-up, grassroots governance
systems, solutions to underdevelopment and power struggles continue to
elude the nation. Community Based Natural Resource Management
(CBNRM) has been one of the few true decentralisation initiatives that
relates to communal natural resources management. Conceptually
CBNRM is a shift in decision-making from centre to periphery, which
gives decision-making and implementation responsibilities to the local
communities themselves (Chirenje et al, 2013).
The governing system of Zimbabwe clearly presents a paradox.
While it is easy to justify devolution through interrogating the failing of the
centralised system in Zimbabwe, it is difficult to conceptualise what form
it would take in practice. At the same time without endorsing the
centralised system, it is crucial to highlight the political and administrative
challenges of devolution in Africa at large. Devolution does not just
happen; the actors need to embrace multifaceted strategies to take control
of all possible challenges along the way. Hence, there is need for robust
support structures to facilitate the transformation. This facilitation
encompasses capacity building, dispute resolution strategies and fiscal
empowerment among others. While noting the robust justification for
devolution to improve governance, the empirical evidence from the global
scan has not been supportive. In the implementation of the process, there
is also the possibility of transferring the challenges of the central
government such as corruption and inefficiency to the lower levels of
government. Relating to the geography of Zimbabwe, the antagonists have
argued that the country is too small for devolution, and is characterised by
99
regional natural resource disparities. On the other side, the devolution

protagonists argue on the benefits of local communities' participation in
managing their affairs of which transparency and accountability ought to
be the guiding principles. In reality, conceptualisations of devolution in
Zimbabwe are merely political and economic. To harness the lessons
drawn from the case studies, Zimbabwe needs to enshrine the legislative
framework mechanism that drive the devolution process, including local
capacity building strategies, financial appraisal, and public awareness. In
addition, there is need for clear institutional and legislative reforms
fostering participatory approaches.
Conclusion
Conceptualising the controversies of devolution in Zimbabwe cutting
across political, economic and social edges, the article explicated several
observations. It pointed out that while the protagonists and antagonists of
devolution are busy in an intellectual tug-of-war, the politics and economic
transformations are shaping the devolution debate in a hilarious manner
thereby complicating its enshrinement into African constitutionalism at
large. It notes the fears held about adopting devolution as regional
disparities and resource distribution inequities. The article has noted that
while the Zimbabwean constitution was in the crucible of its making,
lessons could have been drawn from other countries that have gone
through the devolution process. Three major lessons derive from the global
cases. Firstly, devolution is challenging to implement on a radical scale
since the elites in power should be the ones to give up functions and
resources. Secondly, the success of devolution is based on its centrality to
the constitution, supported by robust legal and institutional frameworks.
100
Lastly, the devolution drive requires a strong transparency framework

backed by robust participation in the process to create an inclusive
devolution process.
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Environmental Rights and the Zimbabwean
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Constitutional Debate: Implications for Policy and

Action
Innocent Chirisa & Archimedes Muzenda
Abstract
This article seeks to provide a historical narrative on the issue of
environmental rights in Zimbabwe and their ultimate inclusion in the new
constitution of 2013. By way of a historical analysis based on the writings of
various scholars, it examines the interplay of factors that have influenced this
inclusion. It is noted that the environmental rights clause was first included in
the 2002 Environmental Management Act of Zimbabwe before it became a
constitutional issue. The paper argues that the historical imbalances in
natural resources as well as outside pressure (persuasive and sanction-based)
plus a general need for promoting a healthy environment have stirred the
environmental rights debate. And, pointing out that including environmental
rights in the constitutional is not enough, it argues that effort must be made to
create legal, economic and social instruments that clearly mandate the state,
civil society and individual citizens to be informed and responsible stewards of
the environment.
Key words: environmental rights, actor-oriented approach, constitutionalism
Dr. Innocent Chirisa is a senior lecturer in the Department of Rural and Urban Planning,
Archimedes Muzenda is an undergraduate student in the Department of Rural and Urban
Planning at the University of Zimbabwe.
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Introduction
The new constitution of Zimbabwe (gazetted on 22 May 2013), through its
section 73, provides for environmental rights. These rights were absent
from the previous constitution but were outlined in the Environmental
Management Act (Chapter 20:27) of 2002. Constitutionalising the rights is
no doubt a major stride in the history of environmental governance and
natural resources management in the country. Nevertheless a gap in
knowledge exists regarding the construct and the narrative of
environmental rights generally in the global south. Overall, colonialism
was a de-humanising process that stripped various local peoples in Africa,
Asia and Latin America of their basic human rights including access to and
control of environmental assets in their immediate vicinities.
Acknowledgement and codification of environmental rights among others
in the new constitution should not only be seen as a 'victory' in the broader
human rights debate but a platform for empowerment of local
communities.
Nevertheless, rights do not necessarily mean just access and
control but stewardship, which is the obligation and ethic to protect and
sustain, in this case the environment, its endowments and assets. The draft
constitution drawn by the 1999 Constitutional Commission appointed by
the president did not define environmental rights as fundamental rights
(Maponga and Ngorima, 2003). Thirteen years lapsed in which a number
of development-related issues including local governance, housing,
disability, to name but a few were forwarded for possible inclusion in the
constitution.
Based on a historical analytical review, this article discusses
105
environmental rights and their role as they have emerged beyond the
contested constitution-making process in which political parties (ZANU
PF and the MDC formations), communities and their representatives
debated various issues from 2009 to early 2013. The Constitution
Parliamentary Select Committee (COPAC) was a body-select comprising
politicians and interest/pressure groups. Crosscutting as the environmental
issue is, there is no doubt that it touched on as wide a cross-section of the
population as possible. Besides, the issue has had longitudinal overtones
given that it has gone through epochs of history – pre-colonial, colonial
and post-colonial. The article identifies and describes some critical
concerns by different actors (communities, organisations and the state)
behind setting the environmental rights agenda. It puts the notion of
context into the constitution making debate basing on the fact that
environmental issues have historical overtones. Lastly, it provides policy
implications of the environmental sustainability debate and practice in a
fast-changing global and regional environment.
Context of the Debate

Globally, the relationship between natural resources management,
democracy, governance and environmental rights has attracted enormous
attention from policy-makers and citizens at large. In most developing
countries, economies are built on the extractive industry; natural-resource-
dependent rural communities constitute up to 70% of national populations.
Yet, environmental rights are little articulated in academic and policy
discourses. Perhaps one of the major contemporary challenges for
legislators and policy makers is to address democratic and sustainable
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resource management (Mohamed-Katerere and Chenje, 2002; Mtisi,

2004). Environmental rights depict participatory approaches to
environmental management by the local citizens and environmental
stakeholders (Boyle, 2007).
Section 73 of the new constitution of Zimbabwe provides for
environmental rights. These rights were absent from the previous
constitution but were outlined in the Environmental Management Act
(Chapter 20:27) of 2002. Health or well-being of the individual person is
stressed as part of the assertion in this section; more specifically, the
section argues against harm to health due to environment-induced toxicity.
It advocates for sustainable development in which the rights of the present
and future generations are safeguarded. The promotion of the rights is to
be achieved through legislative and other measures which aim to prevent
pollution and ecological degradation, and promote conservation. The state
is mandated to ensure that supportive legislation is put in place
(Government of Zimbabwe, 2013). It provides a platform for advocacy
promoting conservation, secure ecologically sustainable development and
use of natural resources, while promoting economic and social
development. The state has the primary responsibility for the enforcement
of these environmental rights. But due to resource limitations due to the
prevailing economic conditions, its capacity to enforce these rights and
protect the environment is limited.
While the embracing of rights in the new constitution has been a
landmark achievement, loopholes still need to be dealt with. Ordinarily
environmental issues involve conflict of interest between private entities,
citizens, civil society organisations, the state and outside forces. There is a
107
clear gap between the theoretical underpinnings and the process of

advocating for environmental rights. Nyamu-Musembi (2005) argues that
rights “…are shaped through actual struggles informed by people's own
understandings of what they are justly entitled.” This means that the
recognition and coding of rights comes through debate and advocacy. In
light of this, this paper contextualises the constitution-making debate in
Zimbabwe and attempts to map the likely future of the environmental
sustainability debate and practice in a fast-changing global and regional
environment.
Theoretical andAnalytical Framework

Environmental issues, concerns and problems have received attention in
recent times. Consequently the articulation of environmental rights is a
relatively new phenomenon in both the legal and developmental discourse
(Gellers, 2012; Mohamed-Katerere and Chenje, 2002). Globally old
constitutions such as that of the United States of America, France and the
Scandinavian countries do not have any specific and direct provisions
dealing with or relating to environmental rights. However, in the recent
past, various countries have adopted new constitutions which now provide
for environmental rights (Mohamed-Katerere and Chenje, 2002). The
whole essence of incorporating the environmental rights into
constitutionalism is about keeping pace with the global agenda of
environmental governance and sustainability.
Broad as they are, environmental rights can be grouped into three
categories: procedural, substantive and solidarity. According to Bruch et al
(2001:135), procedural environmental rights have the role to “... promote
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transparency, participation, and accountability that form the cornerstones

of environmental governance”. These generally fall into four categories
which are: freedom of association, access to information, public
participation and access to justice” (Bruch et al, 2001:176). On the other
hand, substantive environmental rights are the active rights located within
the broader framework of international human rights law and that may be
applied where environmental problems give rise to human rights concerns.
Such rights include “the right to life, the right to health, the right to an
adequate standard of living, and the right to privacy” (Atapattu, 2002:96).
Lastly, solidarity rights centre upon a specific right in relation to the
environment. Unlike other rights whose responsibility falls on an
individual state, solidarity rights call for global participation for successful
implementation. For Hassan (1983), they represent the wellbeing of a
broader community, hence universal cooperation is required towards a
liveable world. Thus, solidarity environmental rights are pillared on the
philosophies of self-determination and non-discrimination such as the
right to development.
To further characterise environmental rights Mohamed-Katerere
and Chenje (2002) proffer eight approaches to environmental rights. Taken
together, the approaches seem to emphasise citizen participation in the
environment and the responsibility of the state to enforce environmental
legal tools for the protection of the natural environmental. Overall, it
should be stressed that environmental rights have gained recognition in
international law and they have been decreed in national legislations.
Indeed, the right to a sustainable environment is rooted in the right to an
acceptable quality of life, which back-steps to the right to life itself (Boyle,
2007; Mohamed-Katerere and Chenje, 2002; Shelton, 1991). Since the
109
individual person matters and citizens form themselves into civil society
associations or pressure groups, it behoves analysts to critically apply the
actor-oriented approach.
The actor-oriented approach places emphasis on mapping
relationships and flows of information from policy makers to policy
implementers (for example, farmers having instructions from their parent
ministry in government) to provide a basis for reflection and action (Biggs
and Matsaert, 2004). The approach is premised on the idea that a healthy
and effective innovative system of relationships comprises a strong flow of
information as well as useful partnerships between key actors over time
(Matsaert et al, 2005). Accordingly, the approach fosters a participatory
platform, bringing actors' values and beliefs into the process while keeping
pace with global, regional and local shifts in environmental management
practices. It is transformative in that it seeks to mould the behaviour of the
members into a better community, and is oriented around actors adjusting
to any structural circumstance. This jells very well with Norman Long's
constructionist perspective that stipulates that the actor-oriented approach
entails the “... remaking of society through the ongoing self-transforming
actions and perceptions of a diverse and interlocked world of actors”
(Long, 2001:5).
Nevertheless, the actors handle situations differently due to
multiple realities of social life, heterogeneity of society, cultural or power
struggles within the society as well as additional factors emanating from
cognitive, emotional and organisational skills (Bosman, 2004).
Constitution-making is about re-ordering of society and finding what
works within a given society and discarding the disapproved. The local
110
people who are citizens and members of the society have the capacity to
shape systems that influence their community. Therefore, the actor-
oriented approach becomes the best way to go in regard to environmental
rights through facilitation of citizen participation in environmental
management.
Good environmental management is one of the key elements of
sustainable development (Chigwenya and Chirisa, 2007; Mtisi, 2004). The
inclusion of environmental sustainability in the new constitution has been
influenced by various socio-economic, political and institutional factors.
Environmental sustainability views the earth as a common good hence its
protection, preservation and enhancement is critical. Present generations
ought to guard against overstepping their mandate; all states should
accordingly endeavour to establish their own environmental and
development policies (Sachs, 2003:43). Such a global concern, no doubt,
calls for practical implementation at the local level in keeping with the
adage, 'Think Globally, Act Locally'. This is environmental stewardship
that cascades from assessing the common environmental goods like
climate, oceans and land resources and persuading localised entities to
implement sustainable practices such as in farming, mining and
industrialisation. In this current debate, it can be noted that
constitutionalising the environment and environmental rights has been a
critical tool towards attaining sustainable development.
History and Context of Environmental Rights and

Constitutionalism in Zimbabwe
Zimbabwe's political terrain is characterised by little attention being
111
accorded to sustainable environmental management. Debate on

environmental and natural resources issues has been sector-based,
focusing on individual elements and not on the integrated elements (Mtisi,
2004). From pre-colonial, through colonial to post-colonial epochs
legislative reform on the subject of the environment has been a key
developmental issue of concern. Specifically, in the pre-colonial era,
traditional practices existed for purposes of fostering environmental
rights. In Mohamed-Katerere's (2001) assessment, there were mechanisms
to ensure sound exploitation of mineral resources as checks and balances
were in place to guard against overexploitation (Mohamed-Katerere and
Chenje, 2002). Management of natural resources was centrally vested in
the chiefs and village heads. Through customary beliefs and metaphysics,
concepts of the sacred forest and totems which regulated the consumption
of wildlife products, citizens conserved the environment. Thus, the
utilisation of environmental resources was achieved in a sustainable way.
In the late nineteenth-century, the scramble and partition of Africa
began. The colonialists were guided by philosophies of dispossessing the
indigenous black populations of their resources while exploiting these
resources for selfish ends. In what is Zimbabwe today, the Rudd
Concession of October 1888 signed by King Lobengula gave Charles
Rudd sweeping rights over the entire country leaving the black majority
powerless over their environment. This colonial domination was
institutionalised through legislations like the 1931 Land Apportionment
Act, the 1951 Land Husbandry Act and the 1969 Land TenureAct.Africans
were 'squashed' in communal areas called 'native reserves' in which
overpopulation beyond area capacities saw increased deforestation,
erosion and dwindling water and related resources. There was a sudden
112
shift from the pre-colonial environmental conservation to the neglect and

'criminalisation' of the African seeking to derive livelihoods from the
natural environment (Pikirayi, 2005). New and exotic-style settlements,
mining and agricultural practices emerged.And a number of restrictions on
the use of local and natural resources were instituted leading to a situation
of 'environmental colonialism'. For example, hunting became a restricted
practice.
Under colonialism, as already pointed out, local people lost title to
natural resources, had their indigenous knowledge suppressed and the
traditional leadership undermined. Representation in the legislature served
the interests of the white minority rather than the black majority as the
Africans were regarded as lower class people. The Parks and Wildlife Act
of 1979 prohibited hunting of wildlife and fish resources for the majority of
black Zimbabweans (Mtisi, 2004). During a parliamentary debate on the
saidAct Bhebe, then representative for Ntshonalanga, argued in protest:
I think it is commonly known that the African is or has a practice of
hunting from early in his life…what is said in this legislation will
make it an offence to catch animals. What I am worried about is the
fact that wild animals like wild pigs, jackals and kudu are quite a
nuisance to the crops of the people not only in the Tribal Trust
Lands but also to the residents of the farms. It will be an offence to
trap and kill these animals should they be encroaching on your
fields….we are creating criminals out of Africans by this type of
blind legislation which is European biased, which has absolutely
no consideration forAfricans (Bhebhe, 1975).
Although it created modern environmental administration and
legislative structures, the colonial regime brought about environmental
suppression upon the black majority who consequently lost control over
113
the environment and their natural resources which they had been using for
their survival. For example, the 1927 Water Act excluded the local people
from participating in the decisions of the Water Court since only registered
voters could do so (Pikirayi, 2005). The majority of Africans were
prevented from registering as voters through a myriad of impediments
placed in their way such as land ownership and salaried income. In
essence, environmental representation during the colonial period was
based on racial grounds, always aimed at making sure that only the
Europeans benefited from the use of natural resources.
After independence in 1980, the early post-colonial era witnessed
remarkable corrective measures and reforms of the environmental
legislative framework aimed at empowering the black majority in
environmental management. The reforms sought to enhance local
environmental protection through the empowerment of local citizens
while allowing the people to meet their survival needs sustainably. Yet
these environmental needs were still not being regarded as part of rights
(Mtisi, 2004); emphasis remained on redressing colonial problems in
legislative provisions. For example, the adoption of a National
Environmental Action Plan by government in 1987 comprehensively
provided a cross-sectoral approach to the conservation and resources
management (UNEP-DTIE, 2000). The Environmental Management Bill
of 1998 sought to address the legislative loopholes of the colonial era.
Altogether there were over 18 pieces of legislation (including the Natural
Resources Act, the Water Act, and the Forestry Act) that governed the
management of natural resources in the country. These pieces of statutes
were administered by seven different ministries making compliance
almost impossible. In 1992, the Ministry of Environment and Tourism
114
initiated the environmental law reform process in light of the Rio Earth
Summit at which Zimbabwe participated in that year. This process
culminated in the passage of the Environmental Management Act (Chapter
20:27, No. 13 of 2002).
The Environmental Management Act of 2002 streamlined all
environmental management, monitoring and compliance issues, and
tightened regulations regarding Environmental Impact Assessments
(EIAs) for all old and new projects (Maponga and Ngorima, 2003). In
addition, the statute says that every person has the right to live in a clean
environment and that the people have access to environmental
information. It also stipulates that they have a mandate and role to protect
the environment for the benefit of present and future generations, to
participate in the implementation of legislation and policies in pollution
prevention, and to fight against environmental degradation through
deforestation and erosion. Thus, the local people are expected to use
natural resources wisely (Mtisi, 2004; ZELA, 2003). The National
Environmental Policy mainly seeks to control irreversible environmental
damage, to maintain essential environmental processes, to preserve the
broad spectrum of biological diversity and to improve the standard of
living of Zimbabweans (Maseva, 2005).
Actors and their Role in Environmental RightsAdvocacy

A number of actors - the state and civic groups included - have participated
in lobbying for inclusion of environmental rights in the new constitution in
relation to their interests in the environmental realm. Several international
institutions including United Nations environmental organisations also
115
participated in the lobbying for environmental rights. These outside forces

promoted the notion of empowering the citizens to govern their local
environment in a sustainable way. This shows the extent to which outside
forces may influence the drafting of legislation, constitutions and national
policies. In the environmental rights lobbying platform the outside forces
have been acting as watchdogs assessing transparency and equality of
participation in line with global practice. Local participation in debates and
fora has been facilitated by members of parliament, state bureaucrats and
councillors, at least from the side of modern institutions. Village
Development Committees and Ward Development Committees as
grassroots structures organised their communities for participating in the
constitution making process.
Besides the state bureaucratic structures, civil society also played a
role. Civil society has been broadly defined as “... the realm between the
household/ family and the state, populated by voluntary groups and
associations, formed on the basis of shared interests, and are separate
and/or largely but not necessarily completely autonomous from the state”
(Mtisi, 2004:2). Zimbabwe has diverse civil society groups (Zigomo,
2012) that include faith-based organisations, women's groups, students
and youth groups, human rights and governance groups, civic education
groups, professional and media organisations as well as community based
organisations (CBOs). The civil society groups act as the voice of the
voiceless, representing the underrepresented communities. In the
constitution-making process, civil society has been the source of
'specialised' knowledge and experiences to do with the environment.
Like any other country, Zimbabwe comprises groups whose
116
aspirations and conditions of living are affected by spatial qualities of any

area (availability or non-availability of resources such as water, forests,
minerals, arable soils, to mention but a few) (see Marongwe, 2002). For
example some areas like Chivi, parts of Mwenezi, Chiredzi and Beitbridge
Districts are dry regions. In recent times, the 'discovery' of diamonds in
such areas as Chiadzwa in Marange, Bikita and Murowa has seen local
people being relocated to other areas to pave way for mineral exploitation.
It must also not be forgotten that one of the cradles of the land invasions in
1998 was Svosve communal lands in Marondera District. The people in
Svosve could not come to terms with the fact that their livelihoods were at
such a risk due to lack of suitable agricultural land yet white farmers
surrounding them enjoyed abundant farming land (Moyo, 2000; 2011).
The people organised themselves, invaded and grabbed the farms. One can
argue that such a move was, in a way, a constitutional protest. Critical to
stress is that the bulk of the population in rural communities survive on the
natural endowments in their vicinities. Even the old constitution upheld the
notion that local people could meaningfully exploit local resources as long
as they do not sell them on a commercial basis.
In urban areas, the 2008/9 cholera outbreak can be said to have
emanated from a situation of desperation. Faced with water shortages,
urban residents in many suburbs embarked on self-water sourcing which
included getting water from open wetlands, some of which had
contaminated water. Beginning with the high-density suburb of Budiriro in
Harare, cholera spread to many parts of the country and some 4 000 cases
of mortality were recorded. It is therefore conceivable that these outbreaks
of cholera and related diarrhoeal diseases (typhoid, dysentery and
diarrhoea) created critical awareness among citizens for inclusion of the
117
environmental rights agenda in the constitution-making process.
Conclusion and Policy Implications

The foregoing paragraphs show that the interplay of global and local
factors and conditions has been instrumental in the inclusion of
environmental rights in the new constitution. Rights imply obligation by a
number of actors to do their best in having a given aspiration bear fruit.
Zimbabwe faces a number of environmental challenges and preventive
and protection mechanisms are critical. For example, from a technical
viewpoint, human and technical resources (like Geographic Information
Systems) are necessary for the successful protection of the environmental
rights. This requires a critical mass of personnel, budgetary support, and
discretion into investigating environmental problems. It also requires
capacity and integrity in the legal and judiciary system to adjudicate cases
involving environmental harms committed by state and private actors.
The inclusion of environmental rights has not just addressed the
colonial and historical wrongs but is an attempt to deal with the lacuna of
the participation and stewardship of natural resources in the current
regime. Environmental management is critical in placing the needs of the
local communities at the forefront of concern. Such is an aspect of
environmental governance whose thrust is democratic environmental
management in which all people have an opportunity to develop the
understanding, skills and capacity to contribute to the soundness of the
environment while sustainably tapping into the resources located within it.
This involves the provision of adequate environmental education, and
sharing of knowledge and experiences. While environmental rights are
118
crucial to foster environmental governance the article has highlighted the

need for strengthening the position of environmental rights beyond
constitutionalism. This means promoting further equality and fair
representation and participation in environmental management.
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The New Constitution and Sustainable Development in

Zimbabwe: Implications for Technical Teacher
Education
Peter Kwaira
Abstract
This paper examines the extent to which teacher education could help deliver
the aspirations of the people regarding sustainable development as provided
for in the new constitution of Zimbabwe. An analysis of the constitution
showed the specific points at which the constitution provides for sustainable
development. Similarly, an assessment of the course outlines in the
Department of Technical Education at the University of Zimbabwe was done
with a view to determining the extent to which the existing programmes were
of the capacity to accommodate issues relating to sustainable development as
reflected in the constitution. Results of the comparative analysis showed
discrepancies between the aspirations of the nation as reflected in the new
constitution on the one hand and the goals of teacher education in general but
especially technical teacher education as reflected in the course outlines for
teacher education programmes in the department of technical education at the
University of Zimbabwe. Consequently the paper makes a call for targeted
reforms in teacher education, starting with improvements in the technical
teacher education programmes of the Department of Teacher Education at the
Keywords: globalization, development, sustainable development, teacher

education, technical education.
Dr. Peter Kwaira is a lecturer in the Department of Technical Education at the University of
Zimbabwe.
122
Introduction
While the advent of a home grown constitution has brought a lot of hope for
the people of Zimbabwe in terms of development, the challenge is to have
it implemented effectively to the satisfaction of the whole population. The
aspirations of the people need to be fulfilled in order for them to see the
difference between the old and the new constitution. Among several
aspirations, sustainable development (SD) has been the main focus in this
paper. From a global perspective, development per se is no longer just the
issue; rather, whatever the form of development, the issue is to make it
sustainable (Hopkins and Mckeown, 2002).
Although the Lancaster House Constitution that ushered in black
majority rule promoted development, particularly by creating conditions
for peace and stability, there was need for socio-economic development,
through equitable access to resources by all communities. This then
appears to have been the main emphasis of the new constitution: to grow
from peace and stability to economic development.
Teacher education is a critical area and a nerve centre in any
education system (Gilbert, 2011). Apart from facilitating implementation
of educational programmes, it plays a fundamental role in the social and
economic development of any society (Yeung et al, 2012). Thus the
central argument in this study has been mainly focused on the extent to
which teacher education in general but especially technical teacher
education could help in the delivery of the people's aspirations with
specific reference to SD as provided for in the constitution within the
context of society, the environment and the economy.
123
Background to the problem

At independence in 1980, Zimbabwe adopted a constitution that had been
developed at the Lancaster House Conference in London (Patsanza, 1988).
The constitution was agreed upon by the warring parties from the then
Rhodesia, where a war had been raging for over a decade between the
Rhodesian regime forces and the Patriotic Front freedom forces under the
Zimbabwe African National Liberation Army (ZANLA) and the
Zimbabwe People's Revolutionary Army (ZIPRA). This was a war of
liberation where indigenous people were waging an armed struggle to
dislodge a repressive and oppressive system of government developed by
the colonial settler regime, a system that had existed since 1890. All the
negotiations that had gone for almost three months towards the end of 1979
were simply meant to come up with a constitution to replace the existing
colonial constitution which had been designed for a particular model of
development (Patsanza, 1988).
Apparently, the colonial system failed because it was not
sustainable since it excluded the majority of the population from active
participation in democratic and developmental processes (Patsanza,
1988). For the sake of peace and progress, it had to be replaced and this is
where the Lancaster-House Constitution (also known as 'the Independence
Constitution') came in. For a while, it saved the purpose. Peace prevailed
and there was a reasonable amount of development: politically, socially,
educationally and economically, for example (Patsanza, 1988).
However, from the early 1990s, cracks began to show within the
Zimbabwean society and questions arose regarding relevance of the
constitution. According to the Lancaster-House Agreement, not much, if
124
anything in this document was supposed to be changed within the first ten
years of independence (Mcgeal, 2002). For example, between 1980 and
1990, 20% of the seats in parliament were to be reserved for whites. Also
within the same period, the government could not institute land reforms
outside the 'Willing buyer, Willing seller' principle (Mcgeal, 2002). Since
these limits were within the agreement where they were supposed to be
binding during the specified period of ten years, going beyond that period
presented a lot of problems regarding relevance of the constitution. This
resulted in the constitution being amended 19 times in about 30years.
Apparently, there were numerous calls for a new constitution (Mcgeal,
2002).
Attempts to produce a new constitution in the 1990s led to the
report of the National Commission of Inquiry into the Establishment of a
new Democratic Constitution made in November 1999. Although the
commission made an effort to make the draft constitution sufficiently
representative of the people's views (Constitutional Commission of
Zimbabwe, 1999), it was unfortunate that because of the highly polarised
society of the time, the whole process of constitution making proved to be
highly contested, resulting in a 'NO' vote in the referendum that followed.
This effectively stalled the constitution making process for a while. From
then, the nature of political events resulted in the Movement for
Democratic Change (MDC-T) gaining more ground and winning 99 seats
against ZANU PF's 97 during the 2008 parliamentary elections
(newzimbabwe.com). On the other hand, there was no outright presidential
winner of the poll since Tsvangirai got 47.9% against Mugabe's 43.2%,
both of them falling short of the 51% threshold for an outright winner
(http://www.bbc.co.uk). According to the electoral laws of the land, there
125
was need for a second round of elections. These were held on 27 June, amid
political violence which forced Tsvangirai to withdraw from the race
although his name remained on the ballot. This time the ZANU PF
candidate (Mugabe) won this one-candidate election
(http://en.wikipedia.org/wiki/Main_Page). Unfortunately, the political
climate remained polarized, resulting in talks between the main political
players (ZANU PF, MDC-T and MDC-M), mediated by the then South
African President (Thabo Mbeki). Eventually these talks led to the signing
th
of the Global Political Agreement (GPA) on the 15 of September 2008. In
terms of the GPA, a Government of National Unity (GNU) was formed and
th
inaugurated on the 11 of February 2009, and a committee of parliament,
the Constitution Parliamentary Committee (COPAC) was established and
mandated to spearhead a constitution making process which resulted in the
document now in place as the new constitution of Zimbabwe.
Development within the context of globalization
Fundamentally, development is a purposeful change in society,
contributing to the social and economic well being and the advancement of
its people without disharmony (Harvey, 1989). It is a process that brings
economic benefits and social well-being in a democratic society.
Internationally, planners working in multi- and bi-lateral institutions have
since started embarking on policies aimed at promoting the twin concepts
of economic growth and equity (Harvey, 1989). Some developing
countries have promoted equity through direct government interventions
in education, health, housing, land reform and income support; others have
126
relied on the market and the 'trickle-down' effects of economic growth

(Carnoy, 1999). Development goals embodied in national plans also
reflect concerns considered more fundamental than economic growth, for
example nation building, national harmony and self-reliance (Green,
2002; Moran, 2005).
In Zimbabwe, it is interesting to note that the new constitution has
come at a time when globalization is in full swing internationally. This
(globalization) has been defined as the rapid acceleration of cross-border
movements of capital, labor, goods, knowledge and ideas (Beck, 2000).
The flows of each of these resources have increased exponentially in
volume and speed recently, leading to what the social geographer David
Harvey (1989) has termed 'time/space compression'. As the salience of
physical distance decreases different places on different time zones can be
simultaneously experienced in one place and many places. As Carnoy
(1999:13) puts it: 'A global economy is one whose strategic, core activities,
including innovation, finance and corporate management, function on a
planetary scale in real time.' Globalization, has been driven primarily by
technological and scientific advances, making transport and
communication faster and cheaper, and also by the general political
movement towards trade liberalization and market de-regulation which
has gathered pace since the abandonment of the Breton Woods policies in
the early 1970s (Green, 2002; Wolf, 2004). Although characterized by
political and cultural dimensions, it is economic globalization which is
generally considered to be at the core of the process (Wolf, 2004).
There are three dominant perspectives on globalization: hyper-
globalists, sceptics and transformationalists (Mok & Lee, 2003). Hyper-
127
globalists anticipate the most far reaching consequences of globalization,

predicting the end of national economies, the demise of the nation state as a
primary political unit and the erosion of distinctive national cultures.
Oriented to the 'post-national', they tend to believe that globalization
brings rapid convergence across the world in economic and political
organization and in culture. At the extreme, they advocate for a 'borderless
world' with a single global market, new forms of global governance and an
increasingly homogenized global consumer culture (Ohmae, 1996).
Globalization is seen as chiefly governed by technological advances which
point in a linear direction towards a largely pre-determined future (Beck,
2000).
On the other hand, sceptics have been reacting against the inflated
claims and over-blown conclusions of the hyper-globalist school. They see
the nation state remaining the primary unit of political organization across
the world (Hirst & Thompson, 1996).
Lastly, transformationalists acknowledge that economic
globalization has fundamentally changed both the nature of the world
economy and the role of the national economy, over which governments
now have much less control due to the power of international finance
(Gray, 1998). Those adhering to this position may be either relatively
optimistic about the prospects for international governance or they may be
out-and-out catastrophists who see the weakening of nation states and the
power of financial capital as leading to burgeoning political chaos
(Touraine, 2000) or global financial meltdown (Soros, 1998).
Globalization, as an economic, political and cultural phenomenon,
has fundamental implications for the process of development and the role
128
of education in that process (Beck, 2000). Globalization changes the terms

under which states and their economic actors engage in the global
economy and thus the possible paths of development. These changes
invariably imply different demands in terms of skills and knowledge and
different possibilities for producing them. However, how we understand
these changes, and their implications for the role of education in
development, is likely to depend crucially on how we understand the
process of globalization and its impact on development (Beck, 2000).
Education and development in a globalised era
From the observations above, development appears to mean much more
than just an improvement in the economic well-being of communities. By
fulfilling each person's material, spiritual and societal needs, it enlarges
people's choices, primarily reflecting the desire by those people to lead a
long and healthy life, acquire basic knowledge, and access resources
essential for a decent standard of living (Salhi, 2002). This makes
development a dynamic process that empowers people by promoting
important changes in their lives. However, it cannot occur automatically
by itself. It requires educated, skilled and competent people, thereby
qualifying education as the most important factor for development (World
Bank, 2006).
However, the impact of education on development basically
depends on what we teach and how much the learners learn (Sen, 2004). It
is the education contents and the teaching methods that make the
difference (Zhou, 2006). Equally important is the interaction of education
with other social and economic factors (Murphy, 2004). That is, education
can only be useful and meaningful when it brings about positive changes in
129
one's life and empowers a person to face day-to-day challenges.

Sustainable development in a globalised era
The Brundtland Commission defines sustainable development as the
'ability to make development sustainable—to ensure that it meets the needs
of the present without compromising the ability of future generations to
meet their own needs' (Kates et al, 2005). According to the Brundtland
report, human needs are basic and essential, and for sustainable economic
growth, equity is encouraged by effective citizen participation (Kates et al,
ibid.).
In 2002, at the World Summit on SD in Johannesburg, South
Africa, the commitment to SD was reaffirmed. As a concept, a goal, and a
movement, it is spreading rapidly and is now central to the missions of
many international organizations and national institutions (Kates et al,
ibid). At the same summit, it was acknowledged that the environment does
not exist as a sphere separate from human actions, ambitions, and needs.
The environment is where we live; and development is what we all do,
attempting to improve our lot within that abode (UNESCO, 1997); the two
are inseparable. This assertion suggests SD being rooted within three
major concepts: society, environment and the economy and it appears as
though one cannot discuss SD without putting these concepts into
perspective. For example, according to Hopkins and Mckeown, (2002),
there are specific pertinent issues that need to be unpacked within these
concepts in relation to SD. Firstly, under society, issues relating to
conservation, housing, medical care, poverty, culture and politics are
particularly important. Secondly, the environment has to do with issues
relating to water, air, land/soil, waste, pollution and habitat. Lastly but not
130
least, the economy (local and/or global) relates to issues involving food,
industry, livelihoods, trade and markets. Understanding of these issues and
factors was important in two ways; to determine the extent to which the
constitution provided for SD and then to assess the extent to which teacher
education reflected the aspirations of the country regarding SD as provided
for in the constitution. In practice, all these factors are interrelated by the
concept of education and associated activities call for collective decision
making. For example, good community-based decisions affecting social,
economic, and environmental well-being are likely to depend on educated
citizens. Therefore, changing from the old constitution to the current one
calls for a revisit of both the curriculum and teacher education.
Teacher education within the context of curriculum change
This is an issue that has to do with the question of 'relevance'. 'Curriculum
change and innovation' is usually necessitated by the need to make the
curriculum relevant to a particular context (Barrow, 1984). Since different
politico-socio-economic situations exist in different contexts, educational
problems tend to be relative in nature, depending on the particular needs of
specific contexts. This in turn brings the issue of 'curriculum relevance'
into focus.
According to Barrow (1984), to argue that curriculum should be
relevant or useful does not mean much in itself because we need to know
whom it should be useful to, what purpose it should be useful for and in
whose judgement it should be useful. This implies that activities do not
possess or lack relevance in the abstract; they possess or lack relevance to
particular people, for particular purposes, and in particular circumstances.
According to Gilbert (2011), teacher education is one of the nerve
131
centres of an educational system. More can be done to raise standards of

education at less cost through teacher-education than any other activity.
Apart from facilitating implementation of educational programmes,
teacher education also plays a fundamental role in the social and economic
development of any society (Yeung et al, 2012). Unfortunately, in
Zimbabwe, like in most other developing countries, relatively little
attention has been paid to the urgent need of improving teacher education
(Kwaira, 1989). In one way or another, the change from the old
constitution to the new one has had an impact on the curriculum in terms of
change. And, logically as changes occur in the curriculum, it is also
necessary to institute appropriate changes in teacher education in order for
content and methods (teaching/learning) to remain relevant and
applicable.
Research Design and Methodology

This study set out to address the following questions:
- To what extent does the new Zimbabwean constitution provide for
SD in Zimbabwe?
- To what extent do the teacher education programmes in the
Department of Technical Education (DoTE) at the University of
Zimbabwe (UZ) reflect what obtains in the new constitution
regarding SD?
Since SD is about the well-being of individuals and communities
in relation to issues involving the society, environment and the economy,
analysis of the constitution was based on these factors. The checklist that
132
was used in the process of analysis was also structurally founded upon the
same factors. This being an exploratory study conducted through a desk
based analysis of the constitution and the course outlines in the DoTE at
UZ, the checklist was used to identify the points at which the constitution
provided for SD before cross-checking and locating the points at which the
course outlines reflected SD in line with the constitution.
Discussion andAnalysis of Findings

Providing for sustainable development in Zimbabwe's new constitution
Analysis of the eighteen chapters in the constitution showed several places
where it specifically provided for SD. Typical examples of such places
were located within chapters 1, 2, 4, 15 and 16. These were found pertinent
for the purpose of this study since they contained sections directly in line
with SD as defined in this study, regarding issues relating to the well-being
of society, the environment and the economy.
Focusing on society, the constitution highlights the founding
principles where it clearly states that Zimbabwe is a unitary, democratic
and sovereign republic. This is where the document (constitution) acts as
the supreme law of the land, to which all the other laws and policies
conform, thereby promoting respect for specific values and principles
relating to fundamental human rights and freedoms, diverse cultural and
religious values, recognition of the inherent dignity of all people,
recognition of equality among people, rule of law, good governance and
equitable sharing of national resources. This is where the state is
specifically required to respect, protect, promote and fulfil the rights and
freedoms relating to the provision of education, health care, food and
133
water. Going by the national objectives, the state is expected to formulate

and implement laws and policy decisions that lead to the establishment,
enhancement and promotion of a sustainable, just, free and democratic
society in which all citizens enjoy prosperous, happy and fulfilling lives.
This is reinforced by a call for national unity, peace and stability.
On the environment, the constitution directs and binds the state to
respect, protect, promote and fulfil environmental rights by ensuring that
every person has the right to a safe environment that is also protected for
the benefit of the present and future generations. This sees the state taking
legislative and other measures to prevent pollution and ecological
degradation, promote conservation and secure ecologically sustainable
use of natural resources while promoting economic and social
development. This is where the state assists traditional leaders (chiefs) in
their duties and functions as they are expected to promote and uphold the
cultural values of their communities, take measures to preserve cultural
traditions and the natural heritage of their communities, resolve disputes
amongst people in their communities, facilitate development, administer
communal lands and protect the environment.
Lastly but not least, on the economy, the constitution focuses on
'national development', where the state has to facilitate equitable
development by promoting private initiative and self-reliance; foster
agricultural, commercial, industrial, technological and scientific
development; foster the development of industrial/commercial enterprises
in order to empower Zimbabwean citizens; and bring about balanced
development of different areas countrywide. In particular, there is a drive
to strike a proper balance between rural and urban areas by ensuring that
134
local communities benefit from the resources in their respective areas. In

addition, the state is expected to promote fair representation of all regions
in all institutions and agencies of government at every level, ensuring
equitable access to resources by all communities, thereby promoting
development.
Amismatch between aspirations and reality
The Department of Technical Education at the University of Zimbabwe
has been involved in the professional development of technical subject
teachers since 1987 at the Bachelor of Education degree (B.Ed.) and the
Master of Education (M.Ed.) degree levels. Programs at both levels
include: Building Technology and Design, Metal Technology and Design,
Wood Technology and Design, Agriculture, Home Economics and
Technical Graphics.
A detailed analysis of the course outlines for all the programmes in
the Department showed serious discrepancies between what the
constitution provides for in terms of SD and what the course content
reflects. Since these programmes were designed and developed through
guidelines provided for in the old constitution, this mismatch confirmed
the fundamental problem being rooted in the differences between the old
and the new constitution. The aspirations of the people contained in the
new constitution are different from those in the old constitution. For
example, the new document provides more ground for SD than the old one.
At the moment, the content and teaching methods reflected in the
course outlines seem to be promoting conventional and traditional
approaches to teaching. Even the facilities and resources currently
available for teaching and learning appear to belong to the era of traditional
135
approaches. For example, while on paper there is mention of design and

technology which is a more progressive approach to the teaching and
learning of technical subjects than the traditional approach, the situation on
the ground appears to prove the contrary, as reflected in the nature of
activities and skills. Learners still spend time making products in the
traditional fashion.
Since environmental issues are part of SD, there is also need to
green curricula (particularly, course outline and syllabi) by including
components and/or content items reflecting environmental issues at
various levels. Since technical subjects involve the application and
consumption of various materials from the environment, this would help to
create awareness in learners where they would learn to exploit the
resources in their environment in a sustainable manner. This is what is
lacking in the programs currently being used in teacher education.
While this mismatch has so far been noticed between the
constitution and the programs currently being used in teacher education,
one can only imagine the ripple effects that this is likely to have in the
general educational curricula and technical education in particular. Given
the global village of today, the teacher needs to be flexible and adaptable in
his or her activities both in class and in the community. This implies a high
level of resourcefulness where the teacher might be expected to assist in
community development. At least for the Zimbabwean context, this is
what most communities expect of the teacher, especially in rural areas
where the school sometimes acts as a resource centre.
Conclusion and Recommendations
136
In its current state, teacher education in Zimbabwe has been designed to

meet specific requirements as determined by the previous constitution.
Now that there is a new constitution, there is a need for a paradigm shift in
both the curriculum and teacher education in order to meet the needs and
demands of the new constitution in as far as SD is concerned. This suggests
reforms within both systems - the curriculum in general and teacher
education in particular. As it stands teacher education appears limited in
terms of meeting and delivering the aspirations of the people regarding SD
as reflected in the constitution.
There is really a need to take design and technology seriously by
engaging learners in problem-solving activities where they solve real
problems in their communities. Such an approach would help to promote
the people's aspirations, both socially and economically by solving real
community problems.
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newzimbabwe.com
Religious Pluralism in a 'Christian Nation': Examining
139
Religion in Zimbabwe's Constitution
Ezra Chitando,Agness Chiwara & Tabona Shoko
Abstract
Zimbabwe has struggled with the reality of religious pluralism over many
years. The country is home to numerous religions such as Christianity, Islam,
African Traditional Religions and others. However, Christianity has tended to
enjoy a higher profile. On a number of occasions, some Christian activists
have sought to have Zimbabwe declared, “a Christian country.” This article
explores the dynamics surrounding the theme, “religion and freedom of
worship” in the latest episode of constitution-making in Zimbabwe. It
examines patterns of continuity and change in relation to arguments
promoting freedom of worship. The article analyses the final product and
critiques it in the light of the reality of religious pluralism in Zimbabwe.
Key words: religion, religious pluralism, Christianity, Zimbabwe, new

constitution.
Ezra Chitando is Professor of History and Phenomenology of Religion in the Department

of Religious Studies, Classics and Philosophy at the University of Zimbabwe (UZ).
Agness Chiwara is a lecturer in the Department of Religious Studies, Classics and
Philosophy at the UZ.
Tabona Shoko is Professor in African Traditional Religion and Phenomenology of Religion
in the Department of Religious Studies, Classics and Philosophy at the UZ.
140
Introduction
Due to historical, political and economic reasons, Christianity dominates
Zimbabwe's religious landscape. Christianity tends to dominate
discussions on religion in the country and the phrase, 'we are a Christian
country' is used casually in discussions. Missionaries were actively
involved in setting up schools, hospitals and other social services in the
country (Zvobgo, 1996). As a result, most Zimbabweans identify with
particular denominations, even if they are no longer actively involved in
regular acts of worship. Belonging to a denomination is deemed important
as churches serve important social functions, especially in relation to rites
of passage (Bourdillon, 1990). Church members are helpful during
ceremonies associated with birth, marriage and death. Due to these and
other factors, many Zimbabweans would happily classify themselves as
Christians. Although statistics relating to religious identity are notoriously
difficult to ascertain, approximately 70 per cent of the population is
Christian (Verstraelen, 1998:4).
The dominance of Christianity in Zimbabwe has created the
impression that it is the only religion in the country. However, the country
is home to a multiplicity of religions. These include African Traditional
Religions, Islam, Judaism, Rastafarianism, the Baha'i Faith, Buddhism,
Hinduism and others. This creates a challenge regarding how these diverse
religions must interface in the public sphere. The dominance by
Christianity compounds the situation as, in most cases, Christian values
are regarded as binding on the rest of the citizenry. How Christianity
conducts itself in an environment characterised by religious pluralism
(Chitando, 2003) forms the basis of this study. Recognising Christianity's
141
dominance of the religious market in Zimbabwe, the study provides an

overview of the ensuing contestations. It pays particular attention to
contentious issues relating to religion in the new constitution. Due to
considerations of space, we do not engage in a comparative analysis of the
old and new constitutions, but concentrate on the provisions on religion in
the new constitution.
Background
One of the major challenges facing post-colonial societies such as
Zimbabwe is addressing the challenges brought about by divisive
pluralism. There is pluralism on the cultural, legal, and religious fronts.
This is the product of the tension brought about by the interaction between
the traditional and new systems. On the religious front, religious pluralism
has emerged as a highly contentious issue. Although the constitution
emphasizes freedom of worship, Christianity tends to dominate. Can
African traditional beliefs and systems (Bennett, 2011), as well as those of
other religions, be accommodated in the Zimbabwean constitution and
contemporary societies? Whose religious values must receive prominence
in the affairs of the State? Can the contestation be resolved by pleading
secularism and hence, trying to remove religion from the public space?
Should the State provide financial or other assistance to religious
institutions? These are some of the key questions that have characterised
discourses on religious pluralism in post-colonialAfrican contexts.
The religious market place
Scholars operating within the field of religion and economics (for example
Iannaccone, 1998) have suggested that religions should be viewed as
142
products competing on the market. Religions that have attractive highest

selling points are likely to recruit more followers than those that do not
market themselves aggressively. However, such a model poses a number
of problems, hence underlining the need for religions to be controlled by
the State. First, in making themselves 'sexier,' religions might make grand
claims that are based on falsehoods. This may include claims to increase
their followers' financial fortunes or claims relating to miraculous healing.
Members of the public, therefore, need to be protected from religious
entrepreneurs.
Second, as religions compete amongst themselves, they may seek
to 'protect their own turf' and prevent other religions from recruiting 'their'
members. Simultaneously, they may act in ways that frustrate other
religions from operating openly and unhindered. The State is expected to
regulate and control the market place in which different religions are
competing. In the case of Zimbabwe, the State is supposed to treat all
religions equally and to uphold the rights of all players on the religious
market. However, in practice, certain religions (particularly mainline
Christianity such as Catholic, Anglican, Methodist, Lutheran among
others) tend to enjoy privileges.
Third, should religions be allowed to proselytize, that is, to seek
converts actively? This is one of the most pressing questions in pluralist
societies such as Zimbabwe. If every religion is to be actively involved in
its expansion, this runs the risk of generating tension and unhealthy
competition. Furthermore, non-expansionist religions such as African
Traditional Religions are likely to be prejudiced as aggressive religions
such as Christianity and Islam engage in fierce competition for members.
143
These religions often draw their members from African Traditional

Religion. Representatives of African Traditional Religions (ATR in the
citation below) are often infuriated by these missionary religions,
particularly Christianity. Thus, Mndende (2013: 82) protests:
… the laws regarding religion in South Africa [are] still biased, in
fact what has happened now is the replacement of the white
oppressor by an African dictatorship and religious coercion. The
content of the missionaries is now heavier and is channelled
through fundamental (sic) capitalist churches which have
mushroomed in thousands in the country. The main sermon of
these churches is the demonization of ancestors and ATR. But this
does not tally with dictates of the constitution.
Are all religions in Zimbabwe equal?

The basic assumption in constitutional democracies is that religion is
intrinsically good. Thus, emphasis has been placed on the right to freedom
of conscience, freedom of worship and association. These have been
upheld in successive Zimbabwean constitutions and drafts, although the
earlier Marxist-Leninist philosophy in ZANU PF had led to apprehension
by Christian leaders prior to independence in 1980. With the Smith regime
presenting itself as defending a 'Christian civilization,' it used propaganda
to project the guerrillas as 'ungodly communists.' However, the black
government has been keen to promote religious pluralism. In practice, the
Christian background of most of the nationalists and opposition leaders
has enabled Christianity to enjoy the position of 'the first amongst equals'
in Zimbabwe.
Briefly, Christianity has enjoyed an upper hand due to its long
presence in the country and its association with modernity. Churches
144
constitute such a strategic constituency that politicians have been careful

to court their members. In addition, churches own institutions such as
schools, universities, hospitals, alongside providing numerous social
services. As a result, Christian holidays are observed as public holidays in
Zimbabwe, while those associated with African Traditional Religions,
Islam, Hinduism and other religions are not. Furthermore, Christian values
tend to dominate the public sphere. The practice has been there since
colonial rule and the new government has just inherited it. For example,
most Christians actively opposed the inclusion of the rights of
homosexuals in the new constitution. This was a continuation of earlier
engagements where most Christians charged that homosexuality is
unacceptable in Zimbabwe (Gunda, 2010).
Zimbabwe as a 'Christian Nation'

Wary of the dangers of religious pluralism and keen to promote Christian
dominance in Zimbabwe, the Evangelical Fellowship of Zimbabwe (EFZ)
and its associates have been actively involved in the constitution-making
processes. In 2000, the EFZ was involved in a very bold campaign that
sought to have the constitution's preamble declaring that Zimbabwe was 'a
Christian nation'. There was no law that prevented other religions from
campaigning for their rights to be included in the constitution. Principally,
this was informed by the belief that such a declaration would secure
blessings for the country. There was a conviction that the country's socio-
economic and political challenges emerged from a failure to rely on God
(Chitando, 2012).
The quest to have the constitution declaring a particular country
'Christian' is not without precedent. Zambia under Chiluba, who was keen
145
to identify himself as a Pentecostal, adopted such a stance when he

assumed office (Phiri, 2003). Zimbabwean Pentecostals sought to follow
this example by having a constitution that would uphold the primacy of
Christianity. Christian values and precepts would, therefore, be used in
shaping the national ethos. The EFZ argued that failure to adopt such a
stance would result in continued misery for the majority of citizens. The
argument has been that countries that recognise the primacy of God, the
Father of Jesus Christ, are prosperous. Conversely, countries that ignore or
understate this theological position continue to wallow in poverty. The
EFZ did not succeed in its quest in 2000, but it generated a lot of interest
and controversy.
Although the EFZ did not exhibit the same vigour and zeal in the
constitution-making process associated with the inclusive
government/government of national unity (GNU) of 2009-2013, for many
the idea of securing a special place for Christianity remained.
Consequently, the thematic area of religion attracted a lot of interest and
there was intense lobbying for 'Christian values' to be preserved in the new
constitution.As we have alluded to above, issues relating to homosexuality
were linked to the need to uphold Christian tenets. In addition, values
associated with monogamy, challenging Satanism and other 'negative'
religions were emphasised. In turn, the media has reinforced the notion that
other religions are mere appendages. Thus, Chari (2010:170) writes:
The number of Christian broadcasts on Zimbabwe Broadcasting
Corporation Television (ZBC-TV) increases daily without a
corresponding increase in broadcasts from other faiths. Therefore,
the impression created by this situation is that the country is a
Christian nation; however, this is not the case. All of the other
146
faiths appear to have been symbolically annihilated from the

media. This annihilation has caused non-Christians to feel like
religious orphans.
Although the public broadcaster has been open to all religions, the latter
have been slow to embrace media.
Methodology
The study utilised phenomenological principles to gather and analyse data.
The phenomenological method places emphasis on scholarly description
and accuracy, as well as acknowledging the point of view of the believers
(Shoko, 2007). In addition, the study undertook documentary analysis,
concentrating on sections relating to religion and culture in the new
constitution. The overall goal was to establish the extent to which the new
constitution recognises the reality of radical religious pluralism in
Zimbabwe and challenges the hegemony of Christianity.
Results andAnalysis
Acknowledging religious pluralism
The new constitution of Zimbabwe, Amendment (No. 20) of 2013, is quite
progressive in its endeavour to recognise the existence of multiple and
contesting religions in Zimbabwe. In many instances, it acknowledges the
reality of diverse religious groups and identities. This is noteworthy as the
temptation to succumb to the Christian lobby groups was quite high. These
sought to secure a special place for Christianity. The new constitution
desists from naming any particular religious group and granting it special
147
privileges. It maintains that all religions shall be treated equally. This is a

realistic stance which is based on the principles of justice and equality.
Desmond Tutu (2011:14) challenges Christians to uphold the reality of
religious pluralism:
To claim God exclusively for Christians is to make God too small
and in a real sense is blasphemous. God is bigger than Christianity
and cares for more than Christians only. He has to, if only for the
simple reason that Christians are quite late arrivals on the world
scene. God has been around since even before creation, and that is
a very long time.
Instead of declaring Zimbabwe a 'Christian nation,' the preamble
twice refers to 'Almighty God.' In many ways, this is an inclusive label
which accommodates the Supreme Being of various religions found in the
country. For example, African Traditional Religions, Christianity, Islam
and Judaism can assent to this designation. 'Almighty God' is a neutral and
elastic label which can be embraced by different religions. However, some
Pentecostals would contend that such an inclusive concept will not
facilitate Zimbabwe's finding favour with God, as there is no unambiguous
declaration that 'Jehovah Father God' reigns supreme in Zimbabwe.
The preamble makes a striking reference to 'honouring our
forebears and compatriots who toiled for our country.' This comes before
the references to 'Almighty God.' It is instructive to note that the drafters
were alive to sensibilities around the term 'ancestors.' The term 'ancestors'
would have stirred further controversy as it would have suggested that
Zimbabwe promotes the veneration (critics say, 'worship') of the ancestors.
To avoid it, they settled for 'forebears.' Despite this clever linguistic trick, it
is clear that the new constitution acknowledges the role of the ancestors in
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the lives of Zimbabweans. This is consistent with the national anthem's

stance of recognising the ancestors and description of Zimbabwe as the
'land of our ancestors.' In addition, this is in keeping with ZANU PF's
emphasis on indigenous spirituality during the liberation struggle (Lan,
1985) and in the post-colonial period (Matereke and Mungwini, 2012).
Preservation of cultural values

One of the recurrent themes in the new constitution is the need to, 'promote
and preserve cultural values and practices which enhance the dignity, well-
being and equality of Zimbabweans' (as expressed in Chapter 2, 16 (1)). As
we have argued above, this must be understood within the quest for post-
colonial African identities. Many Zimbabwean intellectuals are painfully
aware of the extent to which colonialism lampooned African beliefs and
practices. Television programmes such as 'Zvavanhu' (Pertaining to the
[African] People) are an expression of this cultural nationalism.As a result,
in Chapter 2, the new constitution calls for the preservation and protection
of Zimbabwe's heritage as well as due 'respect for the dignity of traditional
institutions.'
We interpret the call for the preservation of cultural values as a
determined call for recognising that indigenous traditions and knowledge
systems should not be jettisoned in favour of foreign systems. However,
we realise the contestation around determining whether a specific value or
practice enhances 'the dignity, well-being and equality of Zimbabweans.'
In the first instance, women might contend that some cultural values and
practices favour men and demean women. Second, who has the last word
on the status of indigenous beliefs and practices? Third, what happens if
traditional institutions appear incapable of responding to change? Such
149
questions highlight the challenges posed by the rhetoric of 'preserving our

cultural heritage.' Society is not homogenous; while some groups might
deem specific beliefs and practices important, others might consider the
very same beliefs and practices oppressive. Despite the above questions,
the call for preservation of cultures remains.
Recognition of religious values and religious groups

Whereas secularism contends that religion has no business encroaching
onto public space, the constitution of Zimbabwe maintains that individuals
and communities must be allowed to practice their religions. In Chapter 1
Section (3) on Founding Provisions, under sub-section 2(i) the constitution
acknowledges 'the nation's diverse cultural, religious and traditional
values.' Under Chapter Four, Part 2, Fundamental Human Rights and
Freedoms, it seeks to promote equality and non-discrimination relating to
religious belief (Section 3). It also seeks to promote freedom of conscience
(Section 60), stating that 'no person may be compelled to take an oath that
is contrary to their religion or belief or to take an oath in a manner that is
contrary to their religion or belief.'
The rights outlined above are central to discourses on freedom of
religion, worship and conscience globally. To this end, therefore, the
constitution must be applauded for upholding fundamental rights. We
would like to draw particular attention to the theme of oath-taking that is
addressed in the foregoing paragraph. In contemporary Zimbabwe, this
practice has been taken casually, with some people using the Bible to swear
in court, but without the requisite seriousness. This is contrary to the
seriousness that is associated with oath-taking in African Traditional
Religions. Furthermore, some people have felt abused by having to take
150
oaths the Christian way. By indicating the liberty that citizens must enjoy
when taking oaths, the constitution has addressed a very pertinent issue.
Upholding the right to provide religious instruction

In an earlier section, we drew attention to the contestation around whether
religions should be allowed to seek converts in an active way. Historically,
the provision of religious instruction has served two related purposes,
namely, to protect current members, as well as to gain new converts.
Zimbabwe's new constitution takes sides with those who contend that
religions must be allowed to provide religious instruction. Under freedom
of conscience, it says (Section 60, subsection 4), 'any religious community
may establish institutions where religious instruction may be given, even if
the institution receives a subsidy or other financial assistance from the
State.'
The constitution does well to recognise that providing religious
instruction may be intrinsic to particular religions. In the case of
Zimbabwe, Christianity and Islam, and to a less extent, Hinduism, benefit
from this provision. It is quite generous, as it proceeds to accept the idea
that the State might even provide financial assistance to religious
institutions that offer religious instruction. In states that are guided by a
strict separation between religion and the State, this is inconceivable. They
would be adamant that religious institutions must not be in close
partnership with the State.
The new constitution is consistent with Zimbabwe's own historical
experiences of interactions between religious institutions and the State. It
would be suicidal for the State to insist on marginalising religious
institutions as these play a critical complementary role. This confirms the
151
point that the constitution must never be a 'cut and paste' issue: it must
always reflect local issues and realities. To this end, therefore, we applaud
the emphasis on the lived realities of Zimbabweans clearly informing the
constitution-making process.
Despite the impressive efforts, there are a number of inherent
challenges associated with the sections on religion in the new constitution,
some of which we have already drawn attention to in the preceding section.
In this section, we seek to highlight contentious issues that emerge from the
new constitution.
Asalient Christian ethos

Verstraelen (1998) has drawn attention to the extent to which a Christian
ethos is dominant in Zimbabwe. This is detectable in the new constitution.
For example, the insistence (Section 78, sub-section 3) that, 'persons of the
same sex are prohibited from marrying each other' is informed by Christian
concerns. Although some traditionalists and Muslims have been opposed
to homosexuality, it is Christians who have led the resistance to
homosexuality (Shoko, 2010).
The influence of Christianity can also be detected in the sections
on marriage, family life and the establishment of religious institutions that
we discussed above, although ATR and Islam uphold these values as well.
One might argue that to a large extent, the new constitution continues to
exude a Zimbabwean Christian identity, even as it does not say so
explicitly in the preamble. While proponents of African theology might
celebrate this as it highlights the successful combination of Christian and
traditional values, it tends to marginalise followers of other religions. To
this end, the new constitution might have managed to express the will of
152
the majority of Zimbabwe. However, it does not reserve special rights for
religious minorities, as we highlight below.
No special focus on religious minorities

Given the historical dominance of Christianity in Zimbabwe, we would
expect the new constitution to be mindful of the vulnerability of religious
minorities and to name them as such. However, in Chapter 4, Declaration
of Rights, Part 3, Elaboration of Certain Rights, the new constitution
isolates the rights of women, children, the elderly, people with disabilities
and veterans of the liberation struggle. While this is commendable,
religious minorities too require special protection in a context dominated
by one well resourced and historically advantaged religion. It is striking to
note that while the rights of 'ethnic, racial, cultural, linguistic and religious
groups' are discussed alongside the 'certain rights' earlier in the
constitution, they are left out when the rights of women, children, the
elderly, people with disabilities and veterans of the liberation struggle are
elaborated.
The need to protect religious minorities in Zimbabwe can be seen
from the challenges faced by Rastafarians, for example. Due to
Christianity's negative attitude towards Rastafarians, young members of
this particular religious community find it difficult to access public, private
and mission schools in Zimbabwe. The resistance to dreadlocks, inspired
by Christianity, makes it difficult for Rastafarians to gain acceptance in
society. There is need, therefore, to make specific reference to the rights of
religious minorities in order to protect them. While the new constitution
does uphold the idea that there should be no discrimination on the basis of
religion, a more direct identification of religious minorities would increase
153
sensitivity around this theme.
Tension between fundamental rights and religious rights

The new constitution attempts to straddle a fine line between fundamental
rights and the rights of religious groups to maintain their identity. A good
example is the tension inherent in the acknowledgement that parents and
guardians of minor children have the right to bring up their children in
accordance with their religious values, as long as the children's rights are
not violated. Thus in Chapter Four, Part 2, Fundamental Human Rights and
Freedoms, (Section 60, sub-section 3) reads:
Parents and guardians of minor children have the right to
determine, in accordance with their beliefs, the moral and religious
upbringing of their children, provided they do not prejudice the
rights to which their children are entitled under this Constitution,
including their right to education, health, safety and welfare.
Since constitution-making does not take place in a vacuum, it is
important to indicate that this provision is likely to have been influenced by
the challenges associated with members of African Initiated Churches
(AICs) of the Vapostori (Apostolic) type. Some members of Vapostori
groups have insisted on their 'freedom of conscience' and have refused to
allow their children to attend schools or to access Western medicine.
Seeking to express a distinct African Christian identity, they regard formal
education and Western medicine as expressions of Western supremacy,
which they seek to resist.
The tension between the right to one's religious identity and the
rights of one's children is palpable. Although we appreciate the emphasis
on the primacy of the rights of children, we are aware of the challenges that
emerge. The Vapostori are likely to feel that their religious identity is being
154
compromised by the constitution. They would argue that their children's

right to education and health should not override their resistance to
Western influence. At any rate, who determines what is proper education
and health? Should the Western paradigm always have an upper hand, even
in post-colonial contexts such as Zimbabwe? However, we contend that
the constitution must be applauded for protecting children's rights ahead of
their parents' and guardians' religious beliefs and practices.
From theory to practice?

Brilliant constitutions do not (immediately) translate to better lives for
citizens. There must be political will to uphold and implement
constitutional provisions by different actors. In the specific case of
religion, it is unlikely that the new constitution will give rise to dramatic,
new ways of religious interaction in Zimbabwe. There are a number of
reasons why we contend that Christianity will continue to be 'the first
among equals,' although the constitution creates the notion that the playing
field is level.
First, although the provisions of the new constitution reflect the
reality of religious pluralism, most citizens continue to operate with the
assumption that Zimbabwe is a 'Christian nation.' Since they are
themselves Christian, such an interpretation is in their interest. The
massive interest in young Pentecostal prophets such as Emmanuel
Makandiwa, Uebert Angel and others suggests for many that Christianity
is the only religion available on the spiritual market place. This reinforces
the idea that other religions are mere footnotes in the history of religions in
Zimbabwe. Yet most Zimbabweans straddle between Christianity and
ATR; when they get to a critical stage in life like sickness they cannot
155
comprehend they normally exhaust all channels especially ATR (N'angas

and African Traditional medicine). Even though they confess to be
Christians they still however practice ATR; the Africans see no wrong in
belonging to both - they clandestinely practice ATR, even the so-called
pastors of Pentecostal churches.
Second, most of the politicians, media practitioners, members of
the judiciary, police and security services, scholars of religion and others
are active Christians. Consequently, they regard Christianity's dominance
as 'normal.' For example, in the debate over homosexuality, many
Christians sought to uphold traditional and conservative Christian
interpretations towards homosexuality. It is doubtful that the same
individuals would have upheld the rights of homosexuals should these
have found their way into the new constitution. It is, therefore, not
surprising that most lesbians, gay, bisexual and transgender people
experience Christianity and the institutional church as 'being complicit
with the very oppression that needs to be turned and eradicated' (Cheng,
2013:207).
Third, constitutions (including the one under review) do not
address the fundamental issue of power. It will always be difficult to effect
change when power imbalances remain in place. Christianity continues to
wield tremendous power and influence in Zimbabwe. Its power derives
from history, numbers, financial capacity, possession of tangible and
intangible assets and other factors. Consequently, it is likely that
Christianity will continue to be the foremost player on Zimbabwe's
spiritual market. It simply dwarfs its competitors. It will require
Christianity's generosity for other religions in the country to thrive.
156
Fourth, although there are some internal weaknesses in

Christianity, it has used 'soft power' to retain its influence in Zimbabwe. It
has not prohibited other religions from entering the market. It has given the
semblance of religious pluralism, such as is expressed by the new
constitution, whilst continuing to call the shots. Where needed, it has made
strategic concessions, such as allowing the nationalists to refer to 'our
forebears' in the preamble, as we discussed above. Christianity is,
therefore, likely to continue dominating the religious scene in Zimbabwe,
way into the foreseeable future. Constitutional provisions, such as the right
to proselytise, facilitate this process further.
Conclusion
Religious pluralism presents peculiar challenges to the body politic. In this
article, we have examined Christianity's response to religious pluralism in
Zimbabwe. We examined the background to discourses on religious
pluralism and analysed the provisions on religion in the new constitution.
We acknowledged the creativity that went into formulating these key
provisions, but also drew attention to some of the key challenges. Overall,
we contend that the new constitution goes some way in addressing the
knotty issue of religious pluralism in post-colonial Zimbabwe. The article
recommends that minority religions be accorded equal rights in the
constitution at par with other dominant religions, and that pluralism should
not remain theoretical but should be put into practice.
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159
Masculinism, Gender and the Homosexuality Debate in the

Pedzisayi Leslie Mangezvo
Abstract
Chapter 4 (Declaration of Rights) of Zimbabwe's new constitution is
predicated on the duty of the state and every person to respect fundamental
human rights and freedoms. Yet some have claimed that unfreedoms have
emerged due to the constitution's position on homosexuality. Deploying
critical feminist and masculinity approaches, this paper evaluates popular
constructions of homosexuality in Zimbabwe and how they shaped debates on
sexual orientation during the constitution-making process. Based on data
from individual interviews and observations during the constitutional public
outreach meetings in Manicaland Province, the paper contends that any
substantial debate on sexualities and the constitution was made impossible by
a masculine gender structure that essentialises Zimbabweans as
heterosexual. The paper critically analyses sections 49, 56, 60 and 78 of
Chapter 4 to illustrate areas of the constitution that appear to contradict the
principle of rights and freedoms yet reinforce and valorise notions of
heteronormativity. The paper shows how anthropological theory can be used
to examine the contestation over the human body, gender and sexuality in the
Zimbabwean context and concludes that while the constitution explicitly
outlaws same sex marriages, it remains ambivalent on the subject of
sexualities in general.
Key words: constitution, gender, masculinism, heterosexuality,

homosexuality
Pedzisayi Leslie Mangezvo is a lecturer in the Faculty of Humanities and Social Sciences
at Africa University, Zimbabwe.
160
Introduction
The year 2013 will go down as a momentous period in Zimbabwe's
political history.Afour-year government of national unity ended following
st
general elections held on the 31 of July 2013. The year saw the country
adopting a new constitution that was as long in its making as it was
problematic in its drafting. Passed in a referendum of 16 March 2013,
th
parliament approved the draft of the constitution on the 9 of May 2013,
after which it officially became the country's supreme law following
nd
presidential assent on the 22 of May 2013.
There will be as many opinions as there are individuals about the
merits, or lack thereof, of the constitution-making process and its outcome.
This paper's primary objective is an anthropological assessment of how
essentialist assumptions of sexuality were systematically employed during
the constitution-making process to undermine open, substantive debate(s)
on sexualities and the constitution. The paper contends that the reason for
the lack of an open, nuanced debate on sexualities can be found in the
prevailing gender structure in Zimbabwe. Fronted by the state and the
church, the relations of gender obtaining in Zimbabwe have not embraced
any debates - scholarly or otherwise - on sexualities outside the contours of
heterosexuality.
It is worth mentioning in passing that there is history, albeit small,
to sexualities and constitution making in Zimbabwe. The Gays and
Lesbians Association of Zimbabwe (GALZ), through submissions and
presentations, argued for the inclusion of sexual orientation as a specific
ground for non-discrimination during the 1999 constitution making
process. It came as little surprise then that GALZ sought to put the issue of
161
sexual rights or sexual orientation on the agenda once the 2009-2013

constitution making process started.
It remains a curious paradox that even though it was largely
circumvented in the formal public hearings, homosexuality still emerged
as one of the key talking points in the constitution-making process. This
was because outside the formal bodies tasked with drawing up the new
constitution, homosexuality remained an important topic of conversation.
Dialogues on homosexualities produced controversy and emotions that
demonstrated how the issue of sexualities is a contested terrain in
Zimbabwe, pitting groups for and against the recognition of individuals'
rights to sexual orientation.
In the final analysis, the procedure and content of the new
constitution had to negotiate the democratic ideals of an 'enabling'
constitution that entrenched individual freedoms while remaining
sensitive to real or perceived threats such freedoms posed to cultural and
religious canons. The conversations and the diverse emotions and
opinions, both the process and outcome engendered, spoke to the
underlying gender - and by extension - power structures. The paper
deploys the concepts of masculinism, understood as the ideology that
justifies and naturalises male domination (Brittan, 1989) and gender, the
socially constructed roles, behaviours and attributes that society confers on
men and women (Connell, 2000) to interrogate the widespread anti-gay
sentiment that accompanied the constitution-making process in
Zimbabwe.
The paper has the wider concept of sexuality as its analytical
framework. A key category of research and theorisation in contemporary
162
thoughts on identity, 'sexuality' is related to but separate from 'sex' and

'gender'. It is used in this paper to refer to sensual or erotic desires, practices
and identities or aspects of personal and social life which have erotic
significance (Jackson & Scott, 1996).
Methodology
The methodology used for this paper was qualitative. The methodology
was mixed as it combined participant observation, interviews and the
review of secondary data. As a researcher, I participated in more than 20
public meetings in selected rural and urban areas of Manicaland organised
by the Zimbabwe Constitution Parliamentary Select Committee
(COPAC). Convenience sampling was used to select the meetings that I
participated in.As a participant observer, my objective was to get a sense of
the manner in which the public meetings were organised and if they created
a congenial environment for the free expression of opinions. The
methodology was developed in a way that captured both the
procedure/method and content of the constitution-making process.
Individual semi-structured interviews with participants to the meetings
were organised soon after the public meetings to solicit people's views on
homosexuality generally and homosexuality and the constitution
particularly. Interview participants were selected on the basis of systematic
random sampling with a view to capturing the views of the old, the young,
youths, urban residents, rural residents, men and women.
Secondary data analysis involved the review of
secondary/documentary sources such as the draft and new constitutions,
GALZ documentation and related anthropological literature on gender and
163
sexualities. Chapter 4 (Declaration of rights) of the new constitution was

identified as central to the primary questions of the paper. For that reason,
most of the analysis in the paper drew from sections 49 (right to personal
liberty), 56 (equality and non-discrimination) and 60 (freedom of
conscience). GALZ and its civic society partners have argued that the
country's Criminal Code is at variance with Sections 49 and 56 of the
constitution because it discriminates against homosexuals on the basis of
their sexual orientation. It therefore made sense to carry out a review of the
constitutional provisions on personal liberty, non-discrimination and
freedom of conscience.
The views expressed in the public meetings and interviews were
many but that does not change the fact that the research was done in a single
province in a country with 10 provinces. Even then, the research did not
cover all the wards in Manicaland. The data are therefore not generalisable
across the board. However, the study's particular focus was on the
procedures followed in producing the constitution and how these methods
were shaped by the broader relations of gender. This was an important
methodological question as focusing on the procedures allowed me to gain
insights into the socio-structural issues that shaped the processes of
making the new constitution which, combined with anthropological
theory, could explain why and how certain outcomes emerged.
Narratives of Homosexuality in Zimbabwe: The State,

Church and Civil Society
Judging from the statements that were regularly issued by the state in the
build-up to the constitution-making process, there was never an intention
164
to seriously engage the citizenry on matters pertaining to sexualities and

the constitution. The default position, at least from the state's perspective,
seems to have been to naturalise everyone as heterosexual, making a
debate on the matter pointless. However, partly because of the 1999
experience and partly because of international trends, the subject of
homosexuality simmered throughout the constitution-making process.
Interestingly, even in the absence of a general debate on the constitution
and sexualities, political parties came under pressure to declare their
positions on homosexuality. A lot of political capital rode on parties'
positions on the matter. Endorsing homosexuality ran the risk of inviting
ridicule and stereotyping as harbingers of 'Western' values or agenda. As a
result, many of the political parties, save for ZANU (PF), flip-flopped on
the issue.
This paper is neither a referendum on whether Zimbabweans
embrace or shun homosexuality, nor does it seek to prove or disprove the
hypothesis that homosexuality is 'alien' to Zimbabwe. Limitations of space
preclude such an assessment. The paper draws on anthropological theory
to assess the wider socio-structural issues that informed the conversations
and discussions on homosexuality as the constitution-making process
unfolded. It is the very same structural variables, the paper argues, that
textured the constitutional outcomes specific to homosexuality.
The Zimbabwe Constitution Parliamentary Select Committee
(COPAC) was the parliamentary body charged with the drawing up of a
new constitution for Zimbabwe by the Government of National Unity
(GNU). As part of its mandate, COPAC carried out a country-wide
outreach process to solicit people's views on the content of the constitution.
165
According to COPAC's National Statistical Report (2013) a total of 4 821

public meetings were held in 1 950 wards countrywide. In the more than 20
such meetings that I sat through in selected rural and urban areas of
Manicaland Province, there were hardly any deliberations on sexuality, let
alone homosexuality.
In meetings where the subject was broached, the issue generated
very sharp responses from fellow participants. In one of the meetings in
Mutare Central constituency, the person who wanted to make submissions
on the issue was heckled and told to 'keep his sickness to himself'. The fact
that this particular person had not even declared his sexuality illustrates
how hostile the crowd was to the issue. In one meeting in Mutasa District,
some level of debate on homosexuality was allowed but the reflections
were no more than curt submissions denouncing homosexuality as a
'Western' pathology. Individual interviews with participants to the public
meetings were fascinating in that most participants were erudite and
eloquent when discussing the constitution and land, executive authority
and citizenship, but became coy and even hostile when it came to
discussing homosexuality. Was it fear? Was the subject taboo? Was the
subject considered to be unimportant?
There are no simple answers to these questions but the responses
from the interviews showed two things: the responses varied depending on
the individual but there was no discernible variation or pattern in the
responses along age, level of education and place of residence (urban or
rural). A minority of respondents expressed the view that sexualities are
private, personal choices that need not be governed by law. The majority of
respondents were diffident, reticent and unquestionably vocal in their
166
condemnation of same-sex relationships.Asked to comment on the general

absence of homosexuality debate in the public hearings, the convenors of
the meetings were categorical in asserting that the remit of COPAC was to
facilitate an expression of what people wanted to see in the new
constitution and not to set the agenda of the meetings. As such, COPAC
could and would not compel people to talk about homosexuality, or any
other issue for that matter.
As has already been stated in the introduction, homosexuality may
not have dominated discussions in the COPAC-led public meetings, but it
remained the elephant in the room, as it were, in informal discussions
relating to the constitution. Amidst the informal contestation over the
claims that homosexuals had in Zimbabwe's constitutional space, a neat
binary emerged with the state and the church standing in opposition to
GALZ and its allies in civil society. The state and the church were
unambiguous in their condemnation of homosexuality. The state framed
homosexuality as a foreign, white practice that came with European settler
colonialism and is perpetuated in modern times by white people who use
money to lure locals into same-sex sexual acts.
Where the state constructed homosexuality as 'foreign' and 'alien'
to Zimbabwe, the church argued that homosexuality was, very simply, a
sin. The church demarcated same-sex relationships as nefarious practices
that are inconsistent with Christian dogma. While different churches
worded their responses differently, most of them were united in their
conviction that homosexuality was 'unnatural' and those involved in the
practice had to seek forgiveness before God and change their ways. GALZ
and its allies were evidently in the minority but robustly opposed
167
essentialist and heterosexual notions of sexuality and insisted that the right
to sexual orientation was a fundamental human right that merited
constitutional protection.
Section 78 (3) of the new constitution outlaws same-sex
marriages. The constitution does not explicitly pronounce as illegal same-
sex partnerships but the country's Criminal Code does. If there is to be any
criticism, then it could be that the constitution remains largely ambivalent
on the subject of sexualities. The following passages use sections 49 (Right
to Personal Liberty), 56 (Equality and non-discrimination), 60 (Freedom
of Conscience) and 78 (Marriage Rights) - the 'Declaration of Rights' – to
highlight the interface between the new constitution and the dominant
patriarchal notions of sexualities in Zimbabwe. In doing so, the paper
asserts that heterosexual constructions of homosexuality which find
expression in the state and church narratives on the one hand, and GALZ's
narrowly-focused, elitist agenda on the other, militated against a general,
broad-based debate on sexualities during the constitution-making process.
Discourses of Homosexuality in Zimbabwe and the

Constitution
Not much research has been done on Zimbabwean sexualities. The few
available studies show that many Zimbabweans delineate homosexuality
as a Western and/or white phenomenon (Epprecht, 1998). However,
archival and empirical evidence seems to contradict this widely-held view.
According to Epprecht (1998:631), if we go by bushmen paintings and oral
traditions about customary 'cures' and 'punishments', expressions of male-
to-male sexuality can be validated as far back as pre-colonial Zimbabwe.
168
The behaviour remained deeply in the closet – secret, compartmentalised

and unmentionable - given the extent to which it was disapproved by
society (Epprecht, 1998:632). The behaviour was particularly frowned
upon beyond the age of adolescence.
The colonial period saw homosexual behaviours among black
Zimbabwean men thriving in particular contexts. Even though they were
never socially sanctioned, pederastic unions flourished in the newly
emerging cities and labour camps (Bullock, 1912). Other forms of male-to-
male sexuality included affectionate, mutual love affairs, rape and sexual
assaults while the victim slept (Epprecht, 1998:632). More importantly to
the representation of Zimbabwean sexualities, no one at the time blamed
whites for the homosexual behaviours (Epprecht, ibid). Nor did the
behaviours generate the kind of attention that they did in comparable
circumstances in South Africa (see Moodie, 1990; Harries, 1990; Achmat,
1993).
Today, most Zimbabweans unquestionably disapprove of open
homosexual behaviour. Findings from the research show how most
Zimbabweans are very hostile towards not only open homosexual
behaviour but even mere discussion on the issue. Both men and women
seemed very uncomfortable sanctioning same-sex unions. President
Mugabe has consistently spoken out against homosexuality, variously
describing it as 'unacceptable' and 'foreign'. Speaking at a graduation
ceremony at the Roman Catholic Church-run Bondolfi Teachers' College
in June 2013, he said about homosexuality:
We do not have a culture of men marrying men or women
marrying women. We cannot accept it, no, no, no. These things
are taboo in our society (Newsday of 15 June, 2013).
169
It would be very easy to conclude that Zimbabwe's new

constitution is silent on homosexuality or sexualities in general because
'these things are taboo'. Does the general population take a lead from the
President or the President embodies a generally anti-gay society? To
reduce the debate to President Mugabe misses the crucial point that his
views resonate with a broad section of the Zimbabwean populace
(Epprecht, 1998; Pattman, 2001). Is Zimbabwe therefore homophobic or
sexually conservative? The issue of sexualities in the Zimbabwean
context, as is everywhere around the world, is a complex one.
Anthropological and historical work among the Shona of
Zimbabwe show how adulthood, masculinities and femininity have
traditionally been fashioned in relation to fertility. Masculinities refer to
aspects of men's behaviour that change over time but are 'expressions of the
current image that men have of themselves in relation to women' (Brittan,
1989:3). Fertility or the appearance of fertility is a central feature of
marriage and represents an essential social marker of adulthood,
masculinity and femininity (Bullock, 1912; Shire, 1994; Epprecht, 1998;
Pattman, 2001). Giving birth not only proves one's fertility but signifies
one's transition into adulthood (Shire, 1994). From this perspective, a
married person who continues for considerable periods of time without
producing an offspring runs the risk of being ridiculed, infantilised or even
divorced.
Some of the objection to homosexuality must be understood within
this context. Sex among the Shona is typically understood in physiological
and functionalist terms. From this perspective, the sexual act acquires
recreational and reproductive values. A functionalist understanding of
170
sexuality belies the world homosexuals inhabit. What this translates to in

practical terms is that homosexuals are not necessarily absent from the
discourse, but their sexuality is pathologised since they cannot satisfy the
two critical signifiers of adulthood: a 'proper' (heterosexual) marriage and
an (preferably biological) offspring. Because heterosexual men typically
adopt a functionalist posture in relation to sexualities, they cannot fathom
the point of homosexuality since it does not result in procreation
(Epprecht, 1998; Ratele, 2011). Nothing illustrates this point better than a
quote from the late parliamentarian, Border Gezi, who had this to say in
parliament:
We have asked these men whether they have been able to get
pregnant. They have not been able to answer such questions.
Even the women who are engaging in lesbian activities, we
have asked them what they have got from such practices and no
one has been able to answer.
Social definitions of sexuality are inextricably linked to notions of
gender and power (Tamale, 2011). This explains why the homosexual
debate in Zimbabwe is dominated by men. It has largely become a men-on-
men verbal war. In the two cases of Mutare Central constituency and
Mutasa District mentioned earlier, all the conversations on
homosexualities involved men. In the interviews, women respondents
mostly had no comments on the issue or were very evasive. The targets of
some of the most vicious verbal attacks have been gay men being attacked
by heterosexual men, with most men evoking the phrase ndingaitwe
mukadzi neumwe murume? (How can I become another man's
woman/wife?). The very idea of 'becoming another man's woman' seems to
grate on most of the men. Ratele (2008b, 2011), a critical masculinities
171
scholar, claims that heterosexual men feel threatened by homosexuality

because of the perception that the practice undermines the
patriarchal/masculine gender structure that resources male hegemony over
the female gender. The normalisation of heterosexuality or heterosexual
masculinities is central to the perpetuation of male dominance. The
dominance derives from masculinism, which Brittan (1989) described as
the ideology that justifies and naturalises male domination. This ideology
assumes heterosexuality as normal.
It is argued that the foregoing explains why under Zimbabwe's
criminal laws, gay marriages are outlawed and homosexuality is a crime.
The law reflects the patriarchal, heteronormative gender structure. It is this
structure that muted alternative narratives to the ones presented by the state
and the church. It is this very structure that feeds the caustic and acerbic
official rhetoric against homosexuality. It is the same structure that led to
the participant in Mutare Central to be heckled and labelled as 'sick' when
all he had done was to exercise his civic right to express a view on
something he considered to be important to him. In the interviews,
arguments that foreground culture/taboo/custom were consistently put
forward to justify the unacceptability of homosexual practices.
Epprecht (1998:633) presents a compelling argument that many
Zimbabweans only have the vaguest notion of what homosexuality is. For
this reason, they are more likely to be ambivalent than homophobic. There
is a long tradition of keeping a distance from homosexuality through
exhibiting 'proper outward appearances' (Epprecht, 1998:633). This is
done by hiding or denying realities that are socially unpleasant or diverge
from the popular narrative/ideal. This coping mechanism applies not only
172
to homosexuality but any undesirable behaviour, like rape and incest, that
invites shame and ridicule.
Interestingly, all the main political parties campaigned for a 'yes'
vote in the March 2013 referendum. It passed with a landslide (94.5%) but
about 200 000 people voted 'no'. What informed their decision to vote no
will never be known. There is a whole spectrum of issues upon which their
dissatisfaction could have been based. Could sexualities have been a
source of dissatisfaction for some? It is possible. It is all just speculation at
this stage but assuming that some voted no because they were
uncomfortable with the constitution's position on homosexuality, it means
that not all Zimbabweans are homophobic. At the very least, the debate on
sexualities in Zimbabwe is yet to be nuanced in ways that are
understandable to many.
GALZ's Response to the New Constitution

Interestingly, GALZ welcomed the passing of the country's constitution. In
a statement released to local and international media and prominently
given coverage on 76crimes.com, a website dedicated to the reporting of
stories and issues affecting lesbian, gay, bisexual and transgendered people
across the world, GALZ director, Mr. Chesterfield Samba, said that the
new constitution 'provides a useful foundation on which Zimbabwe can
rebuild respect for human rights by its institutions and citizens'. In their
statement, GALZ, made it clear that they hoped that whichever
government came into power under the new constitution would amend the
Criminal Code which criminalised consensual adult same-sex sexual
conduct.
173
This was a very surprising response from GALZ, to say the least.
One could argue that it was quiet confidence on their part, but nothing on
the ground should have given them any reason to be quietly confident.
There was not a single political party that came out in the open to say it
supported the right to sexual orientation. The COPAC outreach process
hardly addressed the issue of the constitution and sexual orientation. In any
case, Zimbabweans are generally hostile to open homosexual relations, so
it is surprising that GALZ felt that there was scope within the constitution
to entrench the rights of non-heterosexuals. One could argue that this was
outright naiveté on the part of GALZ.
GALZ has certainly fought for the 'rights' of gays and lesbians but
the manner in which they have framed the discourse leaves them open to
criticism that they have done little to alter popular perceptions and
everything to entrench them. The church and the state have not framed the
discourse on sexualities as a 'rights' issue, but as a moral and cultural issue
respectively. GALZ has consistently framed it as a 'rights' issue and when
one considers the link between rights discourse and neo-liberalism, this
has fed into the state narrative that GALZ's agenda is set in European
capitals by white males. By framing it as a rights issue, GALZ has missed
an opportunity to engage the general populace in sexuality issues without
the suspicion that their agenda threatens the moral fabric of the country.
With that, it has also missed an opportunity to expand people's circle of
understanding of sexualities beyond just homosexuality.

There is no question that Zimbabwe's new constitution won wide approval
174
from the citizens. There is also no denying the fact that, the difficulties the
constitution-making process faced notwithstanding, the constitution is a
substantial improvement from the Lancaster House Constitution of 1979.
However, the constitution has left more questions than answers in terms of
people's rights to sexual orientation. This is because there was no
substantive debate on sexualities beyond the bashing of homosexuality. To
that end, the constitution is ambivalent when it comes to sexualities. It
specifically outlaws same sex marriages but is not explicit in terms of
outlawing same sex relationships. The Criminal Code does though, which
seems to suggest incongruence between criminal law and the constitution.
The paper accepts the anthropological truism that values can never
be legislated. However, if Zimbabwe is serious about entrenching
fundamental human rights and freedoms, the state should seriously
consider revisiting the issue of the right to sexual orientation. The paper is
not recommending that the law be changed to accommodate same-sex
marital unions but at least there should be a robust debate around the issue.
Once it is established that the law disenfranchises a significant section of
the citizenry, it should be changed accordingly.
The paper recommends that there be a substantial debate on
sexualities and that such debate should not be confined to homosexuality
only. There is need to build awareness among citizens on the issue of
sexuality so that their judgements or assessments are not based on
assumptions but factual information that they actually know. This would
lessen incidents where homosexuals are classified as 'sick'. It should also
not be assumed that just because same-sex sexual practices do not lead to
procreation then they are 'meaningless' to those who practise them.
175
Conversations on the issue of sexualities will also expand people's circle of

understanding of the claims homosexuals make about sexual orientation
being more than what people do but an identity. This is only possible if
there is an open debate on the subject of sexualities without fear or
prejudice.
Finally, the paper recommends that there be masculinity activism
around sexuality. The idea is not to turn heterosexual people into
homosexuals and vice versa but to empower men that manhood and
masculinity transcend heterosexuality. Compared to other parts of the
world, Zimbabwe has no record of open, violent attacks against gays and
lesbians. This may suggest tolerance levels that are however not reflected
in common law. Men in particular need to be educated that non-
heterosexual behaviour poses no threat to their masculinities.
References
Bullock, C. (1912). Mashona Laws and Customs. Cape Town: Juta

Brittan, A. (1989). Masculinity and Power. Basil Blackwell
Chitagu, Tatenda (2013). Hell for gays if ZANU PF wins. Newsday, 15
June 2013. Harare:
Connell, R. W. (1987). Gender and Power. Stanford: Stanford University
Press
Connell, R. W. (1995). Masculinities. Cambridge: Polity
Connell, R. W. (2000). The Men and the Boys. Cambridge: Polity
Epprecht, M. (1998). 'The 'unsaying' of indigenous homosexualities in
Zimbabwe: Mapping a blindspot in an African masculinity',
Journal of Southern African Studies 24 (4): 631-652
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Mangezvo, P. L. (2009). 'Sovereignty, the Ballot and Democracy:

Interrogating Zimbabwe's political and electoral processes in the
first years of the 21st century' CODESRIA Bulletin (1 and 2): 29-37
Mangezvo, P. L. (2013). 'Debating the Global Political Agreement and
Gender Equality in Zimbabwe: A Critical Analysis of Women's
Access to Land Ownership and Political Decision- Making' in
Southern Peace Review Journal (Special Issue with OSSREA
Zimbabwe Chapter), 2(1): 75-96
Pattman, R. (2001). “Beer Drinkers Say I had a Nice Prostitute, but the
Church Goers Talk about Things Spiritual” Learning to be Men at a
Teachers' College in Zimbabwe. In Morrell, R. (ed.) Changing Men
in Southern Africa. Durban: University of Natal Press/Zed Books
Ratele, K. (2008a). Masculinity and male mortality in South Africa. African
safety promotion. A Journal of Inquiry and Violence Prevention 7
(2): 19-41
Ratele, K. (2008b). Analysing males in Africa: certain useful elements in
considering ruling masculinities. African and Asian Studies 7: 515-
536
Ratele, K. (2011). Male sexualities and masculinities. in Tamale, S. (ed.)
African Sexualities. Oxford: Pambazuka Press
Shire, C. (1994) Men Don't Go to the Moon: Language, Space and
Masculinity in Zimbabwe. In Cornwall & Lindisfarne (eds)
Dislocating Masculinity: Comparative Ethnographies. London:
Routledge
Tamale, S. (ed.) (nd) African Sexualities. Oxford: Pambazuka Press
Zimbabwean Parliamentary Debates Vol. 22/38 1995
Zimbabwean Government: Constitution of Zimbabwe (Final Draft)
Zimbabwean Government: COPAC: The National and Provincial Statistical
Report
http://76crimes.com/2013/03/24/lgbt-rights-group-cheers-new-zimbabwe-
constitution/Retrieved 15/08/2013.
177
Disability in Zimbabwe under the New Constitution:

Demands and Gains of People with Disabilities
Jacob Mugumbate & Chamunogwa Nyoni
Abstract
People with disabilities looked at the constitution making process as their
biggest opportunity to have their dreams realised. They had numerous
expectations including increased opportunities in health, education, social
protection, habitation, participation and employment. Although they were
excluded from the first stages of the process, they were later actively involved.
The outcome of their involvement has been several provisions in the
constitution addressing disability concerns. The extent to which these
provisions are adequate or inadequate has been a subject of contention. This
article looks at the provisions in the final version of the constitution that
received presidential assent on 22 May 2013vis-a-vis the expectations and
demands of people with disabilities and concludes that the new constitution,
unlike the previous one, takes a more inclusive approach which is the one
preferred by the people living with disabilities, their organisations as well as
other people, organisations and interest groups interested in the cause of
people with disabilities.
Key words: constitution making, disability, Zimbabwe, participation,
exclusion, inclusion
Jacob Mugumbate is a lecturer in the Department of Social Work at Bindura University of

Science Education, Zimbabwe.
Dr. Chamunogwa Nyoni is a lecturer in the Department of Social Work at Bindura
University of Science Education, Zimbabwe.
178
Introduction
Persons with disabilities are often concerned with their welfare and how
they can fairly compete with the so-called able bodied people in society.
This is a genuine concern, given that the playing field is not level. It is not
level because of limitations placed by impairments, attitudes, practices and
beliefs. Because of these limitations, measures are required to level the
playing field. One way to achieve the levelling is to make constitutional
provisions. In 2008, Zimbabwe created a Government of National Unity
(GNU) following disputed elections. Part of the mandate of the GNU was
to lead Zimbabweans in crafting a home-grown constitution to replace the
1979 one that was crafted in Lancaster, United Kingdom at the end of
colonial rule in Zimbabwe (Government of Zimbabwe, 2008). Indeed this
assignment was accomplished with the final draft constitution receiving
presidential assent on 22 May 2013. The document has been received with
mixed reactions from several groups, including people with disabilities.
This article, based on documentary analysis, looks at the provisions
relating to the needs of people with disabilities in the new constitution vis-
a-vis their expectations and demands with a view to showing that the
situation of the people living with disabilities in Zimbabwe is likely to
improve judging by the levelling of the playing field as reflected in the new
constitution.
Background
The International Convention on the Rights of People with Disabilities
(ICRPD) uses a social model of disability, and sees disability as long-term
physical, mental, intellectual or sensory impairments which in interaction
179
with various barriers may hinder the full and effective participation of the
affected persons in society on an equal basis with others. The view by
ICRPD places emphasis on the role society plays in making impaired
individuals disabled. This focus has also influenced the way Zimbabwe
conceptualises disability. One of Zimbabwe's pieces of legislation, the
Disabled PersonsAct Chapter 17:01 of 1992, defines a disabled person as:
...a person with a physical, mental or sensory disability, including
a visual, hearing or speech functional disability, which gives rise to
physical, cultural or social barriers inhibiting him from
participating at an equal level with other members of society in
activities, undertakings or fields of employment that are open to
other members of society.
The views by ICRPD and the Government of Zimbabwe indicate
that disabilities appear in various forms. They may be physical, cognitive,
mental, neurological, sensory, emotional or developmental; at times a
person may have multiple disabilities. There is often a misunderstanding
of three words relating to disability, namely disability, impairment and
handicap. The confusion surrounding these words is often seen in their use,
verbally or in written form. At times they are used interchangeably, to
mean the same thing. To clarify what these three words mean, it is crucial to
describe the disability process. The process starts with impairment,
followed by handicap and then disability.
At impairment level, a person looses a body part. Thus, loss of a
physical body part becomes impairment. For example, in an accident, a
limb may be lost. This results in an impaired person. Alternatively, a brain
cell responsible for memory may be damaged. The loss of that cell
becomes impairment. Further in the process, a person whose limb is lost
180
may be unable to work or walk. In the other case, a person whose brain cell
responsible for memory is injured may also lose the memory function.
Thus, loss of the function of walking, working or memorizing becomes a
handicap. If a handicapped person fails to get a wheel chair that can
compensate loss of body part and loss of function, then the person becomes
disabled. Or if a person with a wheelchair is unable to access a building
because it has stairs then that person becomes disabled.
Disability statistics are a source of contention. The contention
often emanates from what constitutes disability. Globally, it is estimated
that over one billion people live with some form of disability (WHO,
2011). According to WHO, 15% of any given population has various forms
of disability translating to over 1 billion people with disabilities in the
world, of whom 2-4% experience significant difficulties in functioning.
Over 75% of people with disabilities are in developing countries. In
Zimbabwe, the statistics are equally contentious (Choruma, 2007 and
Mtetwa, 2012). On the one hand, WHO estimates show that there are
about 1,8 million people with disabilities in Zimbabwe, which is about
15% of the total population (WHO, 2011) while the National Association
of Societies for the Care of the Handicapped (NASCOH) argues that
disability prevalence in Zimbabwe is over 10% of the population
(NASCOH, 2013). Yet on the other hand the Government of Zimbabwe
estimates that only about 130 000 or 1% of the people live with disabilities
in Zimbabwe (Mtetwa, 2011).
In 2008 Zimbabwe's unity government started a process of re-
writing Zimbabwe's constitution. The process started with the formation of
a ministry responsible for constitutional affairs, the Ministry of
181
Constitutional and Parliamentary Affairs that was headed by then

Honourable Advocate Erick Matinenga. A committee of parliament, the
Constitutional Parliamentary Select Committee (COPAC), was
established to spearhead the constitution making process. According to
Manyeruke and Hamauswa (2013), COPAC then called for a first all
stakeholders conference where stakeholder consultations started. Further
consultations were carried out in many communities and with special
interest groups. A draft was produced which was further scrutinised
through consultations. It was improved and wider consultations were
carried culminating in a second all stakeholders' conference. It was
improved again and a draft was presented to the public in a referendum.
The referendum approved the draft which then became law on Wednesday
22 May 2013 after President Mugabe's signed it into law. Some of the new
constitutional provisions became operational immediately. Such
provisions include Chapter 4 on Declaration of Rights, Chapter 7 on
Elections, Chapter 8 on jurisdiction and powers of the Constitutional Court
and Chapter 9 on principles relating to public administration and
leaderships. The rest of the new constitution became law on 22 August
2013 after President Mugabe was declared duly elected, sworn in and
assumed office.
Theoretical framework
Exclusion can be seen as a process by which individuals or entire
communities of people are systematically blocked from rights,
opportunities and resources available to others. This results in multiple
deprivations and inequities, forms of marginalisation which, as
182
conceptualised by interactionists like Erving Goffman (quoted in

Burchadt, Grand and Piachaud, 2002), can result from an undesired
differentness or an association with a particular characteristic, race,
religion or belief. Such undesired differentness may include a disability.
Further to this, Burchadt et al (ibid) argued that exclusion only manifests if
an individual is not participating in production, social interaction,
consumption and political engagement for reasons beyond their control yet
they are able and willing to participate. These views are supported by
Room (1995) who equates social exclusion with inadequate social
participation, lack of social integration, lack of social rights and lack of
power.
Various models have been formulated in an effort to put disability
issues in a framework. Four significant ones, the charity, social, economic
and political models, shall be briefly discussed. The charity model is
premised on the paradigm that people with disabilities deserve pity, help
and charity (Oliver, 1996). It emanates from the Bible, where people are
taught to take care of the disabled. This model has been used by churches,
government and non-governmental organisations in assisting people with
disabilities. Whilst it addresses immediate problems, it does not provide
long term solutions. The social model argues that disability is society's
responsibility. It asserts that disability is a product of society and not a
problem of an individual with a disability (Mtetwa, 2011). Therefore,
society has a responsibility to prevent, rehabilitate and accommodate its
members who are differently abled (Jairos Jiri Association, 2013). The
economic model supports mainstreaming people with disabilities into the
economy. It argues that lack of participation in the economy makes people
with disabilities dependent on the able bodied. The human rights or
183
political model stresses participation in decision making and respect for

human rights. It is premised on the fact that neither charity nor re-
socialisation is adequate to address issues affecting people with disabilities
(Mtetwa, 2012). It argues for political emancipation, contenting that
without power people with disabilities will remain an appendage of those
in power. As such, people with disabilities should find meaningful
participation in decision making organs of society. Thus the political
model seeks to empower and involve people with disabilities in the
formulation and implementation of social and economic development
policies.
Advocacy work by people with disabilities supported by their
vanguard organisations during the constitution making exercise can be
taken primarily as indicative of the political model of disability that sought
to ensure inclusion. The process of constitution making also relates to all
the economic and social models of disability since the constitution affects
every aspect of life.
Challenges of people with disabilities

The National Association of Societies for the Care of the Handicapped
(NASCOH, 2011) reported that people with disabilities are still being
viewed from a medical and welfare framework which views them as ill,
different from their non-disabled peers, and in need of care. This
observation is supported by WHO (2011) which states that this often leads
to neglect. Another study by NASCOH showed that only two percent of
people with disabilities were employed in the public sector, and less than
seven percent of people with disabilities in Zimbabwe were in formal
employment. The same study showed that eight percent were self-
184
employed, 29 percent were involved in farming activities for sustenance

whilst nine percent were studying in colleges and universities. The study
revealed that the high rate of unemployment among people with
disabilities in Zimbabwe is mainly due to lack of qualifications and to
discrimination from employers. Those who attend school often do not
receive informed career guidance, and are not aware of appropriate career
opportunities.
Save the Children (2004) reported that in Zimbabwe women with
disabilities experience severe discrimination, that sexual abuse of children
with disabilities was increasing, and that 87.4 percent of girls with
disabilities were sexually abused in their communities, usually by people
they knew. Approximately 48 percent of these girls are deaf and mentally
challenged, 15.7 percent had hearing impairments and 25.3 percent had
visible physical disabilities (Save the Children, 2004). Of those who had
been sexually abused, 52.4 percent tested positive for HIV. The report also
noted that access to counselling, testing and treatment is severely limited
for this group of people while health personnel often shunned them (as they
do all people with disabilities) and there is no information on HIV and
AIDS in Braille. These findings are corroborated by NCDPZ (2011) and
NASCOH (2013) who said disabled girls in the country are more
vulnerable to sexual abuse.
In relation to children, a report released by the United Nations
Children's Fund (UNICEF, 2013) paints a grim situation. According to the
report, as many as 600,000 children are living with some form of disability
in Zimbabwe and many of them fail to realise their full potential as they
struggle to access basic rights. The report notes that efforts by Zimbabwe
185
soon after independence to improve the lives of people with disabilities

were eroded by subsequent serious economic challenges. NASCOH
(2011) concurred, saying that 52 percent of disabled children in Zimbabwe
have no access to education, adding that ablution facilities in rural areas are
not accessible to the handicapped.
Zimbabwe's record of 93 per cent literacy among its school-going
children has ranked among the best on the continent, but a sizeable
proportion of children with disabilities do not attend school at all.
According to the Norwegian SINTEF (2001) in its Disability Living
Conditions Survey carried out in 2001, 28 per cent of children with
disabilities never attended school, compared with only 10 per cent of non-
disabled children. 34 per cent of girls with disability and 22 per cent of
boys never attend school compared with only 12 and 8 per cent of the non-
disabled respectively. Children with hearing, visual and intellectual
impairments are more likely never to attend school compared to children
with physical impairments. More recent figures show that 33 per cent of
disabled children have no access to any form of primary, secondary
or vocational education.
Demands of people with disabilities in the constitution

Given the grim picture above, different organisations representing people
with disabilities brought to the constitution making process their own
positions regarding what the constitution should include to make it
disability friendly. Some of these organisations are the NASCOH,
NCDPZ, UNICEF, SINTEF, SAFOD, Jairos Jiri Association and Save the
Children. A synthesis of these demands has been made and is summarised
in Table 1 below.
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Table 1: Demands of people with disabilities in the constitution
Demand Description
Assistive devices Wheelchairs, hearing aids, Braille etc
Medical rehabilitation Availability of specialists, medicines and payment of medical bills
Social Assistance A monthly allowance to cater for the needs of those without income
Income and social security Provision of jobs and safety nets in the event of loss of income
Basic needs Health, education, shelter, food etc
Participation Involvement in all key processes affecting their lives
Caregiver support Supporting caregivers who otherwise lose productive time providing
care to a disabled person
Acceptance and recognition To be treated with respect and dignity, without stigma and discrimination
Rights A specific section in the constitution that guarantees rights to people

with disabilities
Embracing definitions A definition of disability that covers all forms of disability and not only
mental and physical
Mainstreaming disability Every government department to respond to needs of people with

disabilities
Ending abuse and Addressing the abuse of people with disabilities

criminalising it
Women with disabilities Addressing the double burden of being disabled women
Government funding for Availability of financial support to organisations for disabled persons
disability issues and their programmes
Accessibility To buildings and facilities
Representation in parliament Quota system

and local authorities
Languages Sign language and other disability friendly communication to be

promoted
Table 1 indicates that representatives of people with disabilities had

various concerns which they expected to be addressed in the constitution.
Most of these concerns stress inclusion, independency and human rights.
Such an approach emanates from the fact that the Lancaster House
Constitution which was in operation before the new constitution used a
welfare approach to disability and people with disabilities felt a
187
developmental approach was necessary. In summary, although each

particular representative had a specific area of focus, all their concerns
were centred on addressing barriers that exclude people with disabilities
from mainstream society.
Methodology
The research used qualitative research methods for gathering and
analysing data. In order to gain an understanding of needs of people with
disabilities, a documentary search was done. The search covered
submissions made to COPAC by disability groups as well as published and
non-published documents like books, journal articles, newspaper articles
and reports. Content analysis was then used to analyse all the data
collected.
Results and Discussion

The requirement on mainstreaming disability issues was addressed by the
new constitution. This specific requirement was well pronounced in most
position papers by disability organisations. The demand of including
people with disabilities in every aspect of society was met in section 22
which says the state shall consider the specific requirements of persons
with all forms of disability as one of the priorities in development plans.
Because disability is an evolving, highly contentious, knotty and a cross-
cutting concept it cannot be adequately addressed by a single ministry
(Mandipa, 2013). The new Constitution thus mandates all governmental
ministries and departments to recognise the rights of persons with
188
disabilities and to ensure the implementation of such rights.

Mainstreaming disability also entails covering all forms of
disability. The old constitution, even in its amended forms, singled out
physical challenges and mental illness, leaving out other forms of
disability. Under the United Nations Convention on the Rights of Persons
with Disabilities (CRPD), which is the major law that addresses disability
at international level, mental, intellectual and sensory disabilities are the
other types of disability that are recognised and which the 2005
constitutional amendment apparently excluded. By talking about
'disability' in broad terms without singling out a few specific forms, it is
assumed that the new constitution acknowledges all forms of disability.
Persons with disabilities demanded support in terms of finance to
initiate income generating projects. They argued that such finance was
limited and where it was available, they were not prioritised. The new
constitution provides in section 22 that the state should develop
programmes for the welfare of persons with physical or mental disabilities,
especially work programmes consistent with their capabilities and
acceptable to them or their legal representatives. However, the new
constitution clearly states that these provisions will be available only when
the state is able to do so. It says the state and all institutions and agencies of
government at every level “...must, within the limits of the resources
available to them, assist persons with physical or mental disabilities to
achieve their full potential and to minimise the disadvantages suffered by
them” (Government of Zimbabwe, 2013). The conditionality of resource
availability gives the state an excuse in the event of failure. Further to this,
by providing for the development of work programmes for persons with
189
physical or mental disabilities, it can be submitted that the constitution

apparently excludes persons with intellectual and sensory disabilities and
disfigurement.
The new constitution says it shall foster social organisations
working to improve the quality of life of persons with all forms of
disability. This responds to the demand to have support for disability
organisations and programmes in Zimbabwe. However, the level of
support and the type of disability organisations to be supported has not
been specified. The new constitution, in most cases, simply states that
governmental institutions and agencies have to render assistance to
persons with physical and mental disabilities, without indicating the nature
of assistance to be provided.
Disability activists argued that most buildings are not accessible
by people with disabilities. To that end, they demanded that the
constitution guarantees that every building in Zimbabwe shall be made
disability-friendly. The constitution responded by stating that the state
must take appropriate measures to ensure that buildings and amenities to
which the public has access are accessible to persons with disabilities.
Accessibility is quite important because in its absence, people with
disabilities will not be able to work and visit offices located in such
buildings.
Government policy on official languages of the country has always
excluded a huge portion of the disabled population, those with speech and
hearing disabilities. This has now been rectified through the new
constitution which includes sign language as one of the official languages
of Zimbabwe. In addition, this constitution mandates the development of
190
communication suitable for persons with physical or mental disabilities.

By making provisions for the recognition of sign language as an official
language, the new constitution will go a long way in addressing the
communication barriers persons with speech and hearing disabilities have
been facing in Zimbabwe (Mandipa, 2013; NASCOH, 2013).
Discrimination against any person with any form of disability is
now unconstitutional; this will go a long way in ensuring that persons with
disabilities are fully and effectively included in all the sectors of
Zimbabwe, the critical ones being education, health, employment and
political participation. The new constitution now provides for founding
principles and values upon which Zimbabwe is built. These include
fundamental human rights and freedoms, the recognition of the inherent
dignity and worth of each human being, recognition of equality of all
human beings, gender equality and more importantly, the recognition of
the rights of persons with disabilities. Thus, the inclusion of the
recognition of the rights of persons with disabilities among the founding
values and principles is a highly commendable move.
People with disabilities demanded the recognition of their rights.
For example, SAFOD (2013) and UNICEF (2013) demanded respect for
the evolving capacities of children with disabilities and their right to
develop their skills and to preserve their identities. The new constitution
further contains a dedicated section on the rights of persons with
disabilities in section 83. Under the section, the state has an obligation to
take appropriate measures, within the limit of resources available, to
enable persons with disabilities to become self-reliant, to live with their
families and participate in social or recreational activities, to protect them
191
from all forms of exploitation and abuse, to give them access to medical,
psychological or functional treatment, to provide special facilities for their
education and to provide state-funded education and training.
Mangezvo (2013) argues that women form a marginalised group
that deserves attention in constitution making. To this end, women with
disabilities form a special sector within the feminist movement. They
therefore deserve extra attention to ensure that their needs are catered for.
Women with disabilities demanded recognition and equality in the
constitution (SouthernAfrica Federation of the Disabled (SAFOD, 2013).
Section 155 on elections states that the state is now under a
constitutional obligation to ensure that every citizen who is eligible to vote
in an election or referendum has an opportunity to do so and the state must
facilitate voting by persons with disabilities. SAFOD (SAFOD, 2013)
noted that unlike in the past elections in which a myriad of factors like lack
of accessible polling stations, lack of voting materials in accessible
formats, lack of accessible campaign literature and inaccessible
transportation to and from polling stations rendered the right to vote by
persons with disabilities hollow, now the constitution explicitly provides a
right to vote by persons with disabilities.
Other than voting, political representation of persons with
disabilities has been clarified and concretised by the constitution which
provides that the parliamentary senate shall consist of two representatives
for persons with disabilities. The constitution is silent on whether or not the
two senate representatives of people with disabilities have to be persons
with disabilities or not, which leaves room for non-disabled senators.
Representation at local government levels has not been specified.
192

Authors of this paper conclude that the demands of people with disabilities
were, by and large, met in the new constitution. The active participation of
people with disabilities in the process of constitution making, through
advocacy, submission of position papers and consultations significantly
contributed to this success. Shortcomings that remain could have been a
result of the negotiation process. A more inclusive approach has now been
adopted as opposed to charity models utilised by the previous constitution.
If the Government commits itself to implementing and honouring
provisions of the new constitution, inclusion can be realised. However, the
constitution does not provide guarantees that the government will meet
these demands practically. In view of these conclusions, the researchers
proffer the following recommendations:
· Monitoring and evaluation mechanism must be put in place by the
government to ensure that the constitutional provisions are
actually implemented
· All sections of the constitution dealing with disability must use the
all-embracing definition of disability
· Representatives of persons with disabilities in the senate or
councils must be people living with disabilities
· It must be mandatory for each government department to have a
disability policy
· Funding disability research and innovation by the Research
Council of Zimbabwe, universities and other research institutes.
193
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Special issue with OSSREA Zimbabwe Chapter
Editor’s Note
Constitution Making in Zimbabwe 2009 – 2013: Party Politics or the
People?
A Review of the COPAC led Constitution Making Process in Zimbabwe
(2008-2013)
The Impact and Implications of Zimbabwe's Second All
Stakeholders Conference on Constitution Making
Zimbabwe 2013 Constitution and its Implications on Local Self-
Government
A Review of the Doctrine of Separation of Powers in Zimbabwe
(1979-2013)
The Devolution Debate and the New Constitution of Zimbabwe:
An Exploratory Evaluation
Environmental Rights and the Zimbabwean Constitutional
Debate: Implications for Policy and Action
The New Constitution and Sustainable Development in
Zimbabwe: Implications for Technical Teacher Education
Religious Pluralism in a 'Christian Nation': Examining Religion in
Zimbabwe's Constitution
Masculinism, Gender and the Homosexuality Debate in the
Disability in Zimbabwe under the New Constitution: Demands
and Gains of the People with Disabilities

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The Southern Peace Review Journal (SPRJ) is a refereed online journal

The SPRJ is published by the Southern Institute of Peace-building and

Copyright © 2013 Southern Institute of Peace-building and Development

Publication of this Special Issue of the Southern Peace Review Journal

Constitution Making in Zimbabwe 2009 – 2013:

examining its process, the content of the COPAC draft constitution

Constitutional Debate: Implications for Policy and Action examines

disabilities and concludes that the new constitution, unlike the

A Review of the COPAC led Constitution Making Process

Lawrence Mhandara, Shakespear Hamauswa & Charity Manyeruke

Lawrence Mhandara is a lecturer in the Department of Political and Administrative

they undermine these principles (Mbaku, 2004). A 'people-driven' process

driven' implies a process in which elected officials take into cognisance

driven' constitution making as a process that yields a document that is

document that was designed to smoothen the transition from minority to

towards this national agenda. The NCA agenda constituted a central

parliamentarians, the Zimbabwe Constitution Parliamentary Select

The COPAC process

control are not engaged in the perpetration of violence”. Yet evidence

Political party leverage

forced to adopt party positions. To confirm that there was political

COPAC a self-serving institution.

were scheduled to be held in Guruve District of Mashonaland Central

making the constitution tentatively put at 18 months was inadequate (The

driven' process. Deducing from the foregoing, it is discernible that

Louise, O. (2007). Constitutional Review and Reform and the Adherence to

The Impact and Implications of Zimbabwe's Second All

Charity Manyeruke & Farai Sasa

dialogue and consultation. The conference and constitution making

Conference in this respect added a level of legitimacy to the country's

ideological grounds.” Though order was eventually restored, these

country's harmonised elections held on July 31, 2013. Both processes

Impact and implications for power of political parties

was in protest against the presence at the conference of his predecessor,

Impact and implications for democracy

the conference. According to the state-owned press, the Herald (14

(www.zesn.org.zw) further argues that “constitution-making may be a

Subsequent to the conference, a Special Cabinet Committee was

Gumbo, L. December 2012. Cabinet team hits deadlock. [Online: The

www.voazimbabwe.com [accessed: 22August 2013]

Zimbabwe 2013 Constitution and its Implications on

Norbert Musekiwa & David Mandiyanike

Key words: Constitution, local authority, local government, local self-

ministerial orders, and reports by the Ministry of Local Government.

Principles underpinning local self-government

sovereign governments assign responsibilities to local governments, and

infectious disease control hospitals, fire fighting services, housing,

expenditure decisions irrespective of the origins of revenue. Therefore

Constitutionalism and local government: From Rhodesia to

from the opposition Movement for Democratic Change (MDC) –

Architecture of Local Government under the new

The preamble is an assurance to the centralists that the proposed

governance will, to a large extent, ultimately be determined by the Act of

determine whether or not to expel an elected member. In terms of section

Curiously enough, the provincial councils do not have specific obligatory

appropriations (Ministry of Finance, 2012). According to the five percent

the country's basic standards of service.

independence in 1966. In that country, public debt, including both local

Government of Zimbabwe (GoZ). (2009). Constitution of Zimbabwe (as

Harare: Ministry of Local Government and National Housing