Topic 8 Constitutionalism

TOPIC 8: CONSTITUTIONALISM
Constitution and constitutionalism

 A constitution is a legal document that sets out the basic principles about the way a national
state is ruled and governed. Any broadly accepted working definition of a constitution would
likely describe it as a set of fundamental legal-political rules that:
1. are binding on everyone in the state, including ordinary law-making
institutions;
2. concern the structure and operation of the institutions of government,
political principles and the rights of citizens;
3. are based on widespread public legitimacy;
4. are harder to change than ordinary laws (e.g. a two-thirds majority vote or
a referendum is needed); and
5. As a minimum, meet the internationally recognized criteria for a
democratic system in terms of representation and human rights.
 Constitutionalism can be defined as the doctrine that governs the legitimacy of government
action, and it implies something far more important than the idea of legality that requires
official conduct to be in accordance with pre-fixed legal rules. In other words,
constitutionalism checks whether the act of a government is legitimate and whether officials
conduct their public duties in accordance with laws pre-fixed/ pre-determined in advance.
 This shows that having a constitution alone does not secure or bring about constitutionalism
The functions of a constitution
 Constitutions can declare and define the boundaries of the political community. These
boundaries can be territorial (the geographical borders of a state, as well as its claims to
any other territory or extra-territorial rights) and personal (the definition of citizenship).
Thus, a constitution often distinguishes between those inside and outside the polity.e.g
chapter 3 of the Zimbabwe constitution addresses citizenship issues.
 Constitutions can declare and define the nature and authority of the political
community. They often declare the state’s fundamental principles and assumptions, as
well as where its sovereignty lies. For example, the Zimbabwean constitution in chapter 1
declares that ‘Zimbabwe is a unitary, democratic and sovereign republic’.
 Constitutions can express the identity and values of a national community. As nation-
building instruments, constitutions may define the national flag, anthem and other
symbols, and may make proclamations about the values, history and identity of the
nation. e.g. section 35 states that Zimbabwean citizens have the following duties, in
addition to any others imposed upon them by law:
 to respect the national flag and the national anthem; and
 to the best of their ability, to defend Zimbabwe and its sovereignty.
1 bchikunguru@gmail.com
 Constitutions can declare and define the rights and duties of citizens. Most
constitutions include a declaration of fundamental rights applicable to citizens. At a
minimum, these will include the basic civil liberties that are necessary for an open and
democratic society (e.g. the freedoms of thought, speech, association and assembly; due
process of law and freedom from arbitrary arrest or unlawful punishment). The
Zimbabwean constitution goes beyond this minimum to include social, economic and
cultural rights or the specific collective rights of minority communities. E.g. section 80
has the rights of women, section 81 rights of children and section 83 has rights of persons
with disabilities
 Constitutions can establish and regulate the political institutions of the community.
Constitutions define the various institutions of government; prescribe their composition,
powers and functions; and regulate relations between them. Almost all constitutions
establish legislative, executive and judicial branches of government. In addition, there
may be a symbolic head of state, institutions to ensure the integrity of the political
process (e.g. an electoral commission), and institutions to ensure the accountability and
transparency of those in power (e.g. an ombudsman). The institutional provisions
typically provide mechanisms for the democratic allocation and peaceful transfer of
power (e.g. elections) and for the restraint and removal of those who abuse power or who
have lost the confidence of the people (e.g. impeachment procedures).
 Sachikonye (2010) argues that just as the mere existence of a constitution does not
guarantee constitutionalism. According to Barnett, constitutionalism embraces limitation
of power (limited government), separation of powers (checks and balances) and
responsible and accountable government. Henkin identifies popular sovereignty, rule of
law, limited government, separation of powers (checks and balances), civilian control of
the military, police governed by law and judicial control, an independent judiciary,
respect for individual rights and the right to self-determination as essential features
(characteristics) of constitutionalism.
Principles of constitutionalism
 Rule of law-denotes a government of laws and not of men. Individuals working within
the state machinery are expected to exercise their official duties and responsibilities in
accordance with the law. In other words, rule of law represents the supremacy of law.
 According to Dicey, rule of law envisages the following:-
1. No one is punishable except for a distinct breach of law established in
the ordinary legal manner before the ordinary courts of the land-If a certain
behavior is not categorized as a criminal act by the constitutionally mandated
lawmaking organ, it is not treated as a criminal act and is not punishable. It is
treated as an innocent act.
2. No person is above the law-Every person from a president down to a shoe shiner
should equally become subject to the law. Even though avoidance of discretionary
power is totally impossible, the manner in which such power is to be exercised is
strictly monitored.
3. Courts play a vital role in protecting the rights of individuals-The rights
recognized by a constitution and other laws are to be protected or defended
through the medium of courts whenever these rights are infringed. Section 114 of
the Zimbabwean constitution states that among the functions of the Attorney-
General, he/she should promote, protect and uphold the rule of law and to defend
the public interest
 Separation of powers-Under constitutionalism, power is not concentrated in any one
organ of the state. It is diffused (divided) among the three organs of the state i.e., the
legislature, the executive and the judiciary. If power is monopolized by any one organ of
the state there could be abuse of power, tyranny and dictatorship. Nor can there be
liberty. For example, the legislature, in addition to its law-making power is not allowed to
exercise the roles of the executive; and the judiciary is not allowed to execute the laws
which it interprets. These two powers are reserved to the respective organs i.e. the
executive and the judiciary, respectively. For example section 3 of the Zimbabwean
constitution recognizes observance of the principle of separation of powers
 FURTHER READING: Montesquieu (1748.) De l’Esprit des Lois (The Spirit of the
Laws).
Montesquieu (original name Charles Louis de Secondat) argued that the best government
would be one in which power was balanced among three groups of officials. He thought
England - which divided power between the king (who enforced laws), Parliament
(which made laws), and the judges of the English courts (who interpreted laws) - was a
good model of this. Montesquieu called the idea of dividing government power into three
branches the "separation of powers." He thought it most important to create separate
branches of government with equal but different powers. That way, the government
would avoid placing too much power with one individual or group of individuals. He
wrote, "When the law making and law enforcement powers are united in the same
person... there can be no liberty." According to Montesquieu, each branch of government
could limit the power of the other two branches. Therefore, no branch of the government
could threaten the freedom of the people.
“Montesquieu advocated constitutionalism, the preservation of civil liberties, the
abolition of slavery, gradualism, moderation, peace, internationalism, social and
economic justice with due respect to national and local tradition. He believed in justice
and the rule of law; detested all forms of extremism and fanaticism; put his faith in the
balance of power and the division of authority as a weapon against despotic rule by
individuals or groups or majorities; and approved of social equality, but not to the point
which it threatened individual liberty; and out of liberty, not to the point where it
threatened to disrupt orderly government”. Sir Isaiah Berlin.
 Sovereignty-Popular sovereignty envisages the fact that the public is the source or
fountain of all governmental authority. The legitimacy of any governmental power is
derived from the consent of the public. In other words, the government acquires its
mandate from the people.
1. Justice- section 68(1) states that every person has a right to administrative conduct
that is lawful, prompt, efficient, reasonable, proportionate, impartial and both
substantively and procedurally fair.
2. Equality- section 56(3) states that Every person has the right not to be treated in an
unfairly discriminatory manner on such grounds as their nationality, race, colour,
tribe, place of birth, ethnic or social origin, language, class, religious belief, political
affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy,
disability or economic or social status, or whether they were born in or out of
wedlock.
3. Freedom- refer to chapter 4 (declaration of rights)
 FURTHER READING: Rousseau (1762) Du Contrat Social ( The social contract)
Jean Jacques Rousseau sketches his ideas of the basis of government—he seeks a
justification for the fact that man, though ‘born free, is everywhere in chains’ (i.e. is
everywhere subject to government). This justification he can find only if the ideas and
desires of the people are really carried out by the government—or, as he puts it, if the
General Will is sovereign. Only thus is liberty (freedom) retained, and equality realized.
He was the first philosopher to promote the concept of “popular sovereignty”.
 Responsible and Accountable Government-In the democratic nations (countries) people

perceive their government as their own servant. The government is there to serve their
interest or act as the steward of their interest. The governments assume office in the name
and on behalf of the public for the benefit of the public. In its preamble, the constitution
of Zimbabwe recognize the need to entrench democracy, good, transparent and
accountable governance and the rule of law.
 Ensure and Respect Individual Rights-The incorporation of the rights of individuals in a
constitution and other laws is essential, but not an end by itself. It is a means to an end. It
must be seen that these rights are duly respected and protected.
Article 1 of the UN Charter included the promotion and encouragement of respect for
human rights and fundamental freedoms for all without distinction as to race, sex,
language or religion. Similarly Article 55 of the UN Charter states that the United nations
shall promote universal respect for and observance of human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion. In addition
Article 56 of the Charter imposes obligation on member states to ensure the observance
of Article 55 of the Charter.
Role of the constitution in nation-building
 Nation-building is the process whereby a society of people with diverse origins,

histories, languages, cultures and religions come together within the boundaries of a
sovereign state with a unified constitutional and legal dispensation to create a national
community.
 Nation-building may also be defined as the process through which the boundaries of the
modern state and those of the national community become congruent. The desired
outcome is to achieve national integration. The constitution can achieve this through a
number of ways:
 Peace-building- in its national objectives (chapter 2), the constitution of Zimbabwe states
that the State and every person, including juristic persons, and every institution and
agency of government at every level, must promote national unity, peace and
stability. On foreign policy, among other objectives, the same chapter states that the
foreign policy of Zimbabwe must be based on peaceful co-existence with other nations
and the settlement of international disputes by peaceful means.
 Section 59 guide people on peaceful demonstrations.
 The authority of the legislature include among many other factors: to make laws for
the peace, order and good governance of Zimbabwe ( chapter 6)
 The national security is tasked to reflect the resolve of Zimbabweans to live as equals
in liberty, peace and harmony, free from fear, and in prosperity. (chapter 11)
 On independent commissions supporting democracy chapter 12 gives room for the
creation of National Peace and Reconciliation Commission.
Functions of National Peace and Reconciliation Commission

1. to ensure post-conflict justice, healing and reconciliation;
2. to develop and implement programmes to promote national healing, unity
and cohesion in Zimbabwe and the peaceful resolution of disputes;
3. to bring about national reconciliation by encouraging people to tell the truth
about the past and facilitating the making of amends and the provision of
justice;
4. to develop procedures and institutions at a national level to facilitate
dialogue among political parties, communities, organisations and other
groups, in order to prevent conflicts and disputes arising in the future;
5. to develop programmes to ensure that persons subjected to persecution,
torture and other forms of abuse receive rehabilitative treatment and
support;
6. to receive and consider complaints from the public and to take such action
in regard to the complaints as it considers appropriate;
7. to develop mechanisms for early detection of areas of potential conflicts
and disputes, and to take appropriate preventive measures;
8. to do anything incidental to the prevention of conflict and the promotion of
peace;
9. to conciliate and mediate disputes among communities, organisations,
groups and individuals; and
10. To recommend legislation to ensure that assistance, including documentation,
is rendered to persons affected by conflicts, pandemics or other circumstances.
 upholding heritage and cultural values (for more refer to study pack volume 1 page 141-
143: legal frameworks on cultural heritage, Constitution of Zimbabwe amendment
(No.20) Act 2013)
 On promoting responsible citizenship (chapter 3), Zimbabwean citizens are urged to be
loyal to Zimbabwe, respect the national flag and the national anthem and to the best of
their ability, to defend Zimbabwe and its sovereignty.
 Protection and preservation of heritage- (refer to study pack volume 1 as cited above)
 National integration- on founding values and principles (section 3) the constitution of
Zimbabwe states that the principles of good governance, which bind the State and all
institutions and agencies of government at every level, include fostering of national unity,
peace and stability, with due regard to diversity of languages, customary practices and
traditions.
 Integration of ethnic communities- the section (ibid.) also recognizes the rights of:
 ethnic, racial, cultural, linguistic and religious groups;
 persons with disabilities
 women, the elderly, youths and children
 veterans of the liberation struggle
 Citizen participation- section 20 call for affirmative action towards youth to have
opportunities to associate and to be represented and participate in political, social,
economic and other spheres of life. on basic values and principles governing public
administration ( section 194) people's needs must be responded to within a reasonable
time, and the public must be encouraged to participate in policy-making
 Equality and fairness – section 17 promotes gender balance by stating that there should
be promotion of the full participation of women in all spheres of Zimbabwean society on
the basis of equality with men.
 However, though the Zimbabwean constitution in terms of section 63, states every
person has the right to use the language of their choice, and to participate in the cultural
life of their choice, the limitation of this right is that the exercise of such rights must not
be inconsistent with other rights in the Declaration of Rights. Quite clearly therefore the
right to culture and language has to be exercised subject to other rights in the
Declaration of Rights. To an extent, this is a massive internal limitation that undermines
the right to culture which further affects nation building through undermining heritage
and cultural values ( opposing upholding heritage and cultural values as a pillar of nation
building)
 International human rights standards enshrined in the constitution sometimes undermine
peace building, fairness and citizen participation as pillars pillar of nation building.
TASK. Analyse the following extracts of some constitutional rights and how they may
impact on peace building, fairness and citizen participation. Look at how the rights may
be manipulated
 59. Freedom to demonstrate and petition

 Every person has the right to demonstrate and to present petitions, but these rights
must be exercised peacefully.
 Section 70 Any person accused of an offence has the following rights:
 To be presumed innocent until proved guilty.
 To be given adequate time and facilities to prepare a defence.
 To choose a legal practitioner and, at their own expense, to be represented by that
legal practitioner.
Pre-colonial African constitutionalism

 Traditional African societies had their own system of governance prior to the advent
colonialism. Political leadership in Africa was not a recent creation. Long before contact
with European merchants, African societies developed sophisticated communities and
kingdoms. Edward Bovill and Hallett Robin draw attention to the fact that many West
African kingdoms had rulers with enormous wealth, organized judicial systems, and large
armies before the fifteenth century. Some of these kingdoms were Ancient Ghana,
Mandinka, Songhai, and Kanem-Bornu. The kingdoms of Kongo, Zimbabwe, and other
advanced societies of the southern parts of Africa were all well organized and Indigenous
leaders played a great role and used a number of mechanisms to enforce unwritten
constitutions. The following are systems of governance from various African kingdoms
 Mapungubwe state system of governance

 According to Thomas Huffman at Mapungubwe they recognized a system of divine
kingship.
 At the Mapungubwe hill there was the state’s national space; a national court or dare – an
open space. The king acted as a judge on court matters.
 Rulers of Mapungubwe were able to maintain religious and secular control over the state.
Kings presided over religious ceremonies
 The system of cattle-loaning created patron-client relationship and was used as a political
weapon.
 Tribute payment ensured the citizen loyalty to the king.
 Zulu state system of governance

 The king (Tshaka)’s decision was final on any issue though he consulted councilors. The
councilors of the king were mostly headmen.
 All councilors or izinduna were obliged to reside in turn at the capital for a certain period,
during which time they formed the council of the king- Not only was this an effective
means of state surveillance, but was in this manner that the king became acquainted with
the condition of the remote parts of the land.
 There were also royal spies in all parts of the country, who kept the king informed of all
happenings
 He was the commander-in-chief of the army. To achieve this he set up military
settlements all over Zululand. He had a standing army which was well trained and
disciplined.
 He presided over the First Fruits ceremony, with the whole army in attendance. These
ceremonies held at national level helped instil unity and destroy division.
 All people were encouraged to speak Zulu and adopt Zulu traditions so as to promote
national unity.
 The king appointed territorial chiefs. These helped in administration at district level. The
smallest political tribe unit in the government of the Zulus was the kraal or village which
was under the control of the umnuinzane or kraal head. He dealt with any dispute or
quarrels that arose. He himself was under the head of the district (isiGodi) in which his
village was situated. The district head was part of a larger area, the isiFunda, in the
charge of an important induna.
 The king was the personification of the law, and as the representative of the tribal
ancestors, the centre of all rituals. He represented the nation.
 The king had legislative and judicial powers. The people were ruled by custom and very
little actual legislation took place. The ‘laws’ that were proclaimed every year after the
feast of the first-fruit were mainly orders to regiments to marry, and announcements
about campaigns that had been previously decided upon by the king in council.
 Another limitation to the king’s power was that no one would be killed except for some
offence. It was an easy matter, however, for the Zulu kings to find an offence if they
wished to get rid of a subject.
 Tshaka used national symbols such as the ‘inkatha’ (a woven grass coil worn in the hair)
to instil a sense of nationhood.
 Great Zimbabwe system of governance
 The rulers monitored and supervised economic and trading activities as well as the
payment of tribute by their subjects.
 An advisory council helped the ruler. The senior wife, religious leaders and army
commander were part of the advisory council.
 He was the head of the state whose duties were to control over the allocation of grazing
land and presiding over religious and political activities.
 The King was assisted by the Dare (a council of advisors) in carrying out his duties.
Members of the Dare were appointed on merit and could help the King in presiding over
court cases.
 There were village chiefs and provincial chiefs who were answerable to the Mambo.
 All the subjects and vassals paid tribute to the Mambo as a sign of loyalty and this tribute
was collected by the council of advisors.
 There was no clear system of succession after the death of the Mambo and this weighed
much to the downfall of the state.
 Mutapa state system of governance

 Scholars have claimed that the Mutapa ruler was not above law. At the court he ruled
with various royal officials which included chief officials and junior ones who had
special roles to play in the governing of the state. Each tributary state had a political
leader, mostly in the form of a chief who was a vassal to the king. It is important to note
that the Munhumutapa ruled with some form of a cabinet which illustrates that he was not
a dictator or an absolute king.
 The king was assisted by important officers who held some considerable power, though
they were answerable and accountable to the king. These officers were handpicked by the
Mutapa on his accession. These officials were members of the Dare and they stayed at
the court.
 There was a governor known as Nengomasha. This title was first used in the sixteenth
century and the seventeenth century. He was the Deputy to the Munhumutapa (king),
hence the second most powerful person in the nation; a similar post to the Vice-President
in modern day Zimbabwe. He was usually a close relative of the Mutapa and of royal
blood. Gatsi Rusere, for example chose his own uncle as the Chief Minister. His roles
included the following:
 Leading the army in a campaign where the Mutapa was not involved.
 Being a contact point at the palace for vassals rulers or their representatives when
they visited the court.
 Assisting the Mutapa in the appointment of provincial chiefs when a provincial chief
died, resigned or was dismissed.
 Announcing to the visiting provincial leaders the orders of the king.
 Discussing important matters and developments within the state with the
Munhumutapa.
 Acting as regent after the death of each Munhumutapa before a new one was
appointed.
 Ensuring that orders by the Mutapa were carried not only at the court but throughout
the state.
 Keeping the king informed of what happened at the court and in the outlaying
 There was a captain-general of the armies. He was similar to the modern day Commander
of the Armed Forces. He was known as Mukomohasha. He was also the general and
Captain of Gates of the kingdom. He headed the army of the king. He was also the chief
strategist for war and in charge of military matters such as weapons, intelligence and
enemy status.
 There was a treasurer also referred to as a steward. Other duties of the treasurer were to
receive all the presents brought to the Mutapa court and was in charge of the trade goods,
that is cloth and beads used as salaries for the Portuguese garrison at the Mutapa,
especially in the eighteenth century. The steward also kept Mutapa’s ivory and
supervised royal finances. He was also responsible for the expenditure of the hinds at the
instruction of the king.
 The royal wives were a third group which was distinctive in the political system of the
state. In each provincial town there was a royal wife who checked on the loyalty of the
provincial rulers. Some of the royal wives especially the senior known as the Mazvarira’
stayed at the palace and provided useful advice to the king.
 The Mutapa never had a standing army throughout its existence (Mavuru and
Nyanhanda-Ratsauka 2008). The army was mobilised largely from the peasant farmers
anytime there was an emergency.
 This is unlike the Zulu states further south of the Limpopo. This war council was
commonly referred to in Shona as Dare ReHondo.In typical cases the war council would
convene to discuss on what action to take. This council was usually chaired by the
serving Munhumutapa himself.
 Ndebele state system of governance

 The king had political, judicial, religious and economic powers.
 He appointed all the indunas or headman of villages and received detailed reports from
them.
 Mzilikazi travelled frequently among the various regimental towns and made surprise
visits in order to inspect the progress in these towns.
 The king had immense power. He controlled the provinces partly by placing his many
wives in regimental towns from which they reported significant developments.
 He was also the Supreme Commander of the army and the Supreme Judge. He was also
the religious head and presided over all major rituals and ceremonies.
 However, whilst Mzilikazi had absolute powers he was not above the law and his powers
were checked by the two advisory councils, the Mphakhathi made up of some members
of the royal family and elders chosen for their great knowledge of traditional customs and
the Izikhulu a larger assembly of all the izinduna zamabutho. Intact, the king made
important decisions after listening to advice from members of these two decision-making
bodies.
 The Ndebele society was divided into four provinces, each under a ‘great chief’ or senior
induna. These provinces initially were not made up of villages but of a number of
regimental towns each known only by the name of the regiment which occupied it. Each
regiment was commanded by its induna and the provincial senior induna also
commanded his own regiment and a regimental town.
 Mandinka state system of governance

 Samori aimed at destroying ethnicism. In its place, he put national loyalty among the
Mandinka. At each level of government he saw to it that men of different families and
ethnic groups worked together. He also tried to abolish distinctions between groups
which worked together. He also tried to abolish distinctions between privileged and non-
privileged classes by giving every chance to rise through the army to highest positions in
the state.
 Samori Toure organized a highly centralized state divided into various provinces under
the jurisdiction of district chiefs. However it must be noted that district chiefs were
responsible to Samori Toure.
 The empire was divided into 162 districts of twenty or more villages each. The districts
were grouped together to form ten large provinces.
 Functions of Samori were purely religious and he held all religious authority.
 There was Quidi.His main function was to work as a judge and law enforcer. All forms of
justice were controlled through him.
 There was Sofa. This official was responsible for military recruitment. Furthermore, he
ensured each region was in a position to supply the forces. The Sofa was appointed by
Samori himself. The official raised supplies for the army, harvested and sold the produce
from Almaami’s field which was farmed communicably in each village.
 There were District Chiefs. Samori’s district chiefs were assisted by a war chief who had
200 to 300 sofas under his command and a scholar.
 There was also Almami. The Almami was the supreme political, judicial and religious
head of the empire as well as its military commander. He was assisted by a special state
council which meant his powers were always curtailed. (They were checks and balances).
The Almami (Samori’s) state council was composed of provincial heads of three lines of
authority: political, religious and military.
 Functions of the state council were to assist the supreme leader in state affairs
administration and to further ensure he did not to rule arbitrarily. There was a deliberate
policy which was to discourage enthusiasm within the state. The basic aim of Samori was
to encourage integration of all defeated people.
 The empire had no elaborate Bureaucracy i.e job specialization and hierarchy of
authority.
 Judiciary matters were usually settled in the alkali’s courts at the village, district and
provincial levels but very serious matters could be brought before Samori and his state
council.
Colonial African constitutionalism (system of governance)

 With the arrival of colonialism, the above discussed structures were done away with and
a colonial system of government was imposed on the Africans.
 Whereas European theories of society tend to emphasize the role of the individual,
African societies stress the role of close-knit social formations (Ajayi, 1991), and
the supremacy of consensus not law as the measure for ordering public affairs.
 In general, pre-colonial Sub-Saharan Africa did not develop what Kiralfy (1958) has
called a “heritage of legality”, not for want of ingenuity, but because the African
perception of society was fundamentally different from the European one.
 The advent of colonialism in Africa and the subsequent taken over of African states
brought about the introduction of modern forms of governance that necessitate modern
form of constitution which is written and documented. The introduction of this
constitution into the colony is regarded as an imposed constitutionalism. Schepple, K. L
(2003) made a distinction between constitutionalism and imposed constitutionalism.
According to him; constitutionalism is legitimate, but the imposed constitutionalism is
not. Imposed constitutionalism is illegitimate because it is being drafted “in the shadow
of the gun”. None of the African countries under the colonial rules has the opportunity of
substantial local participation in the constitutional process. Rather, they have seen
substantial intervention and pressure imposed from outside to produce a constitutional
outcome preferred by the colonizer. A noticeable negativity of this imposition is the crisis
of legitimacy of the constitutional outcome.
 Colonial boundaries were drawn up without regard to ethnic, linguistic, religious,
cultural, economic and demographic or other social bonds in the different regions of
Africa. African kingdom, states and communities were arbitrarily divided into unrelated
regions and people were brought together whilst peoples who were hit her to united were
torn apart.
 The rule of law on which constitutionalism is founded was also not a flourishing legacy
during the colonial period (Ajayi, 1991). The posture of the colonial judiciary was
generally one of self-restraint, reflecting a desire to safeguard the interests of the
executive, and this persisted after independence.
 Constitution making process was controlled exclusively by European settlers, with
Africans denied full and effective participation.
 Law in colonial Africa was never a means to protect the majority of its people, but
rather to subjugate the people. Laws were formulated to enforce the clear division
between the colonizer and the colonized, empowering the former and disempowering the
latter. The democratic principles articulated and practiced in the metropolis were never
practiced in the colonies (Claire, 2007).
 Indigenous legal systems were under compulsion to transform in one way or another.
Transformation meant the creation of a puppet traditional political system that was at the
beck and call of the colonial political administrators. Whether this was necessary for the
survival of the African system remains in doubt, but a clear outcome of this is that this
puppet system inevitably diminished the amount of respect and dignity that resided in the
African traditional political system, and thus eroded its legitimacy.
Post-colonial African constitutionalism (system of governance)

 The end of colonialism saw an African society unable to identify with the cultural and
institutional system that had for millennia presided over it, whilst at the same time unable
to relate to and accept the colonial administration system as the legitimate governance
mechanism.
 In Zimbabwe, indigenous customary value system continue to play second fiddle to the
modern state and government system. Their conduct is regulated by the Act of
parliament.
 The Constitution of Zimbabwe is largely a human rights-centred not only indigenous
(customary) human rights but human rights recognized by other international bodies.
What this means is that custom, customary practices or rules of conduct or customary
behaviour have to be consistent with the Constitution for their validity to stand. Cultural
values (traditional leadership included) are recognized in as far as they positively relate to
human rights, and conversely those cultural behavioural practices that undermine dignity,
equality and well-being are not recognized.
 The system of governance is based on the three tiers of government being the executive,
the legislature and the judiciary (separation of powers). Clearly, this three-tier framework
reserves little room if any for the direct participation of traditional institutions in spaces
meant for its manifestation.
 There is constitutional supremacy and rule of law. Appointments to public offices are
made primarily on the basis of merit.
 Constitution implicitly regards traditional leaders as civil servants in the same manner as
the colonial administration system had done or sought to do. Traditional leaders are under
an obligation not to violate the fundamental human rights and freedoms of any person.
These principles are far reaching; they limit some of the rights that accrue to traditional
leaders as persons in terms of the Declaration of Rights such as political rights.
Curiously, these principles have a striking similarity to general principles that should be
observed by members of the civil service.
 However the co-opting of traditional leaders into legislative roles is important this way
 It sends a message that the traditional institutions are not excluded from mainstream
political and governmental activities.
 It also exposes them to modern constitutional processes of the day which constantly
denounce and condemn patterns of social, cultural and political life that violate
human rights, constitutional principles and the rule of law.
 The co-optation enables the chosen representatives of traditional leaders to appreciate
human rights abuses committed in the name of culture and custom in their
communities.
 Enhances their representative roles and consequently the level of interaction between
the modern state and local communities living in traditional settings and contexts.
Contribution of pre-colonial African constitutionalism to our current Zimbabwean home-

grown constitution
 Judicial procedures- the concept of Dare in Mapungubwe, Mutapa and Great Zimbabwe
states influenced the idea of court system (chapter 8) in Zimbabwe’s constitution. Though
the king acted as a judge as well, the concept of having judges is also considered in our
home grown constitution. The Quidi of Mandinka state also had a main function which
was to work as a judge and law enforcer.
 Authority over defence forces- in Zulu and Ndebele states Tshaka and Mzilikazi were
respectively the commanders-in-chief of the army. Section 89 states that the President is
the Head of State and Government and the Commander-in-Chief of the Defence Forces.
 Decentralization of power to provincial authorities- Mandinka state was divided into
various provinces under the jurisdiction of district chiefs who were responsible to Samori
Toure. The empire was divided into 162 districts of twenty or more villages each. The
districts were grouped together to form ten large provinces. The Ndebele society was
divided into four provinces, each under a ‘great chief’ or senior induna. Section 264
states that whenever appropriate, governmental powers and responsibilities must be
devolved to provincial and metropolitan councils and local authorities which are
competent to carry out those responsibilities efficiently and effectively. According to
section 267 there are 10 provinces in Zimbabwe.
 National symbols- Tshaka used national symbols such as the ‘inkatha’ (a woven grass
coil worn in the hair) to instil a sense of nationhood. Ashanti state had golden stool which
was a unifying symbol. Section 4 states that Zimbabwe has a National Flag, a National
Anthem, a Coat of Arms and a Public Seal.
 Deputy leadership- Mutapa state had Nengomasha the Deputy to the Munhumutapa
(king), the second most powerful person in the nation. He acted as regent after the death
of each Munhumutapa before a new one was appointed. Section 100 states that whenever
the President is absent from Zimbabwe or is unable to exercise his or her official
functions through illness or any other cause, those functions must be assumed and
exercised firstly, by the first Vice-President.
 Management of finances- The steward kept Mutapa’s ivory and supervised royal
finances. He was also responsible for the expenditure of the hinds at the instruction of the
king. Section 300 states that The Minister responsible for finance must at least twice a
year, report to Parliament on the performance of loans raised by the State and loans
guaranteed by the State. At the same time as the estimates of revenue and expenditure are
laid before the National Assembly in terms of section 305, table in Parliament a
comprehensive statement of the public debt of Zimbabwe.
 However some aspects of pre-colonial constitutionalism ceased to exist or were altered in our
current Zimbabwean home grown constitution. Some conflicting values exist between the
two systems of governance.
 Pre-colonial system of governance followed a communalism approach whereas the
current post-colonial system of governance have upheld some capitalistic western
style tendencies. Having a relative bias towards the colonial constitutionalism, the
current Zimbabwean constitution recognizes private ownership of land a
phenomenon which rarely existed in pre-colonial administrations. Section 297 states
that one of the functions of the Zimbabwe Land Commission is to make
recommendations to the Government regarding the acquisition of private land for
public purposes. There are procedures to be taken when acquiring land from private
owners a scenario which traditional governance did not have. Under section 71
(property rights), every person has the right, in any part of Zimbabwe, to acquire,
hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property,
either individually or in association with others. No person may be compulsorily
deprived of their property except, among other conditions: in order to develop or use
that or any other property for a purpose beneficial to the community. Nevertheless,
the law requires the acquiring authority to pay fair and adequate compensation for
the acquisition before acquiring the property or within a reasonable time after the
acquisition. Contrarily, pre-colonial system of administration centered land and
property ownership issues chiefly in the hands of the chief who then made sure
everyone gets an equal share of land. Ownership of land was more of ‘spiritual
ownership’, the ancestors being the owners, chiefs remained custodians. Therefore
land issue remained a communalistic rather than a capitalistic issue.
 System of divine kingship remained a pre-colonial administration practice whilst is
our current constitution leaders are chosen through elections. Leadership was
monarchical in pre-colonial system of governance, death was the major reason for
leadership changes. In the current constitution, together with the vice presidents their
terms of office are five years. In addition, a president can be removed before the
term expires if he fail to obey, uphold or defend this Constitution or if unable to
perform the functions of the office because of physical or mental incapacity
 Monopoly of power like in Zulu state where the king had legislative and judicial
powers also was overshadowed by concept separation of powers in the modern
constitution.
Rights and responsibilities of citizens in Zimbabwe in pre-colonial period
 Right to life-one of the limitation to the king’s power was that no one would be killed except
for some offence. It was the responsibility of every citizen as well to respect other people’s
right to life.
 Right to personal security (protection)- most Zimbabwean pre-colonial states had standing
armies which ensured security of the citizenry. Ndebele state was known to have one of
strong army which made the early settlers restless.
 Right to administrative justice- the concept of Dare (king’s court) ensured justice delivery
for citizens in the precolonial societies. Right for every citizen’s fair hearing was also
achieved through this. The responsibility
 Right to agricultural land-the king distributed land to citizens.it was the responsibility of
every citizen to keep the given piece of land in good state since it was communally owned.
 Environmental rights- pre-colonial unwritten constitutions included taboos which ensured
citizens had an environment that is not harmful to their health or well-being. e.g the law of
chisi. It was a responsibility of every citizen to abide by this law for environmental
preservation.
 Right to food and water-social practices like Nhimbe (work party)ensured better food
production which promoted right to food. Social safety nets like Zunde Ramambo (king’s
granary) also promoted the right to food. It was every citizen’s responsibility to work in the
king’s field during the Zunde Ramambo activity. Taboos on preservation of water bodies
ensured provision of clean and safe water (e.g. not using metal tins which are also used to
boil water), hence the right to water. All citizens were obliged to keep water sources clean for
the fear of ancestral reprimand.
 Marriage rights-it was every citizen’s right to marry. Same sex were prohibited from
marrying each other, it was a taboo. It was every citizen’s responsibility to marry someone
exogenously to avoid incest.
 Rights of women- Bourdillon argue that, ‘‘It is a common misconception [misinterpretation]
that women had little or no status in traditional African societies’ Bourdillon aver that in a
number of Kore Kore chiefdoms, the chiefly dynasties are said to have been founded by a
brother and a sister together, in which the two became lion spirits and complement each
other. The daughters of a Manyika chief were sometimes appointed as headwomen over
subject territories. Women also acted in a system of royal espionage. Some women exercised
considerable influence over the government of the day by becoming a medium to a senior
spirit.
 However, some rights were not fully upheld for citizens during the precolonial period.
 Freedom of conscience- freedom of religion or belief was not a common phenomenon.
Indigenous religion was the most considered. When missionaries came they faced stiff
resistance including those whom they converted were treated with tolerance especially in
Ndebele State under Mzilikazi and Lobengula. In Mutapa state the death of Father
Gonzalo was shrouded with intolerance to Christianity by Africans.
 Political rights- the monarchical nature of leadership closed all avenues for elections.
 Freedom from arbitrary eviction- chiefs often used this as punishment mechanism by
sending citizens into exile for some grave offences.
 Rights of women- women occupied a low status in a traditional patriarchal society. Some
were used in appeasing avenging spirits or others in inheritance marriage.
Rights and responsibilities of citizens in Zimbabwe in the colonial period

 Right to personal liberty- resistance to colonial rule often resulted in one being detained
without trial. Travelling without passes was limited. Africans were obliged to carry them
everywhere with receipts of payment of various taxes. The pass system was so burdensome
that in the late 1950s an African man would have to carry with him as many as fourteen
documents including “chitupa”, the registration certificate. In addition he also carried tax
receipts for whatever he would have bought. This also infringed the right to freedom of
movement and residence. The passes were a source of harassment and humiliation by the
police. At any time a policeman could demand to see the documents. The largest
prosecutions in the colony involved breach of pass laws. Fines paid by Africans for all sorts
of offences regarding passes was another source of revenue for the government. Since the
income for the African workers was low, the jails were full of African men who would have
failed to pay such fines.
 Right to human dignity- Africans were often humiliated in compounds, chiefs were flogged
for not supplying labour. Chiefs had the responsibility of labour supply. As early as 1892, the
Urban Location Ordinance was passed. It required all African residents to stay in segregated
areas outside the white parts of the town. There was serious overcrowding in the locations
with as many as eight people per room. One African writer describes the location as follows:
The location was an eyesore. The few communal toilets all overflowed with human excreta. A
strong smell hung over the place. One waste bucket catered for about 40 residents. Green
flies hovered over buckets and in the soiled open spaces close to the latrines. Thus health
standards were very poor. Venereal diseases like gonorrhea and syphilis were very common.
Bilharzia, tuberculosis and hookworms were also taking theft toll. This also violated the
Africans’ right to have access to basic health-care services
 Right to personal security- police boys often raped women. Africans lost confidence in
colonial security forces.
 Labour rights-The right to strike was constrained by such legislation as the Law and Order
Maintenance Act (1960) and the Emergency Powers Act which replaced the Public Order
Act. Under the Law and Order Maintenance Act, strike action in “essential services” became
a criminal offence punishable by life imprisonment or death. Wages were appallingly low for
Africans and the wage gap between the two racial groups became a source of greater anger.
For example, in 1974 the average earnings for Africans were $266 a year compared to $3 580
for Europeans, Asian and Coloured employees, a wage gap of eleven to one.
 Freedom from slavery or servitude- Africans worked for no payment under inhuman
conditions. There was no freedom from forced or compulsory labour
 Equality and non-discrimination- racial segregation was the order of the day. Sign posts
written ‘beware of natives’ were often erected in African suburbs to warn the incoming
whites against the threat posed by black people. Buffer zones were created to separate black
and whites people’s residential areas. Produce from agriculture often carried different prices
with whites getting the lion’s share. Facilities in the towns like race courses, clubs, and hotels
were for the exclusive use of the white settlers. So in the early years, laws were passed
making it illegal for Africans to walk on the pavement or sidewalks in any town. This law
was not repealed until 1934. Africans were supposed to take off their hats in the presence of a
government official, and take off their shoes whenever they entered a government building.
This blind racism was however, relaxed with time.
 Right to privacy- in urban areas, the locations created for African men were often searched to
check cleanliness and other unwelcome visitors. visitors were not allowed to stay in the
location for more than 12 hours. a friend or relative who wanted to stay with a resident had to
buy a permit to do so
 Political rights-Africans had no political voice. Very few Africans qualified to be on the
voters’ roll since qualifications were based on property and educational level. Franchise
legislation was changed only five times since 1893, in 1912, 1951, 1957, 1961 and 1969 all
these amendments were necessitated by the growth in income of the African population.
Once Africans appeared to have enough wealth to quality for the franchise, the qualifications
were raised, hence, as the African, became politically conscious the cry was for universal
suffrage; ‘One man one vote’ or ‘majority rule.’
 Rights to agricultural land-(refer to the Land apportionment Act)
 Right to education-secondary school education for Africans was not introduced until after
1940 with the first African government secondary school, Goromonzi being built in 1946.
There was ‘bottle neck’ policy which limited more Africans reaching university. In the field
of education, colonial policies were equally discriminative. African education was generally
inferior and inadequate throughout the colonial period. Most of the advancement in African
education in Southern Rhodesia was due to the tireless efforts of missionaries and the
Africans themselves who provided funding and erected the necessary infrastructure from
their own resources. There was great discrepancy between the amount of money spent on
African and European education. For example, in 1969 government spent £9 per African
child compared to £103 it spent on each European Child. Infact, as late as 1966 the Minister
of Education in Southern Rhodesia still believed that, “for the great majority of Africans,
there was no purpose in education other than literacy”. With this situation it is, therefore,
not surprising that many of the guerillas that in the sixties and early seventies went for
training did so after being denied further education.
Rights and responsibilities of citizens in Zimbabwe in the post-colonial period

 Right to health care- Every citizen and permanent resident of Zimbabwe has the right to
have access to basic health-care services, including reproductive health-care services. e.g. the
free maternal health, free health for the elderly
 Right to food- command farming, pfumvudza scheme and agricultural extension services are
meant to help citizens produce more food. Citizens are supposed to responsible in utilizing
the inputs and skills availed.
 Marriage rights- Every person who has attained the age of eighteen years has the right to
found a family. Citizens have the responsibility of shunning early marriages
 Right to education-BEAM, affirmative action policy in education, presidential scholarships
have been implemented to promote this right. The citizens have a responsibility of availing
equal educational opportunities for boys and girls.
 Rights to agricultural land (refer to land reform in Zimbabwe)
 Political rights- free, fair and regular elections are a right for every citizen. They are
responsible to form, join and participate in the activities of a political party or organization of
their choice in a peaceful manner.
 Rights to Language and culture- to use the language of their choice; and to participate in the
cultural life of their choice. Citizens should be responsible in that when exercising these
rights they may do so in a way that is inconsistent with violation of other rights.
 Rights of women- Every woman has full and equal dignity of the person with men and this
includes equal opportunities in political, economic and social activities.
Roles played by society and government in upholding rights of men, women, children and
vulnerable groups
Rights of men
 Right to work- the government is mandated by section 24 of the constitution to adopt
reasonable policies and measures, within the limits of the resources available to them, to
provide everyone with an opportunity to work in a freely chosen activity, in order to secure a
decent living for themselves and their families. A number of measures have been put in place
by government to ensure that man work and perform their role of being breadwinners
 Land reform- this has given many people including men, access to land as a means of
production thus reducing food shortages and housing construction challenges. Men being
family heads, have been issued with offer letters of their newly resettled land
 Increased investment in agriculture- there has been provision of inputs and collection of
the harvests of the small scale farmers mostly men,who are the majority in the rural areas.
For instance the recent Command Farming program.
 Right to dignity-the society also ensure men are accorded their right to worthiness and honor.
There are symbols associated with men which the society recognizes. These objects have a
patriarchal and symbolic energy that is synonymous with manhood. These symbolize
manhood in Shona culture. They are symbols of the tribe’s fertility which is passed on to
every individual by the ancestors.
 Axe -traditionally used in close combat symbolises the man’s role in close protection of
his family. There is an axe for daily use and the one for ceremonial occasions. Gano or
humbwa is a cutting tool that was used for hunting & war. The axes used during cultural
festivals or religious ceremonies are known as tsomho or dancing axes amongst the
Korekore people of north-eastern Zimbabwe.
 Pfumo-a hunting instrument also used for warfare symbolic of the man’s role as a
breadwinner and a hunter for the family.
 Tsvimbo-A sceptre of authority symbol of patriarchy and honour associated with the
institution of manhood. These combination objects carry on them a patriarchal and
imparted energy closely associated with manhood.
 Spiritual rods. According to H. Ellert walking sticks & staffs (Tsvimbo/intonga) are
considered as symbols of power and authority. In both Ndebele and Shona cultures Tsvimbo
has long been representative of both secular and spiritual authority. If it belongs to a dead
ancestor, the spirit medium uses it in calling forth the spirit to speak & guide the living.
 Symbolic swords (bakatwa) Bakatwa or knife is a general Shona term for a type of
sword found in Mashonaland and Manicaland provinces. Swords are a symbol of
authority, manhood and a defensive weapon.
 Symbolic Plates- The head of the family has his own set of plates, the so-called
‘gunere’, he is the most important upholder of the family’s fertility. It means real
fertility comes from the man, he gives the seeds to his wife hence begets children for the
tribe. ‘gunere’ means authority hence its only for man. If a woman offered food to a
stranger in a ‘gunere’ she would be taken to court and accused of adultery. A man’s
gunere is buried with him so that he can maintain his children’s fertility even after death.
Rights of vulnerable groups
a) Rights of women
 Right to work- the government is tasked by section 24 of the constitution to secure the
implementation of measures such as family care that enable women to enjoy a real
opportunity to work. To implement this the government has introduced the Early Childhood
Development (ECD) policy which act as a ‘babysitter’ hence giving more room for women to
work. Other measures taken include:
 Affirmative Action Policy- A basic tenet of affirmative action is giving preferential
treatment to previously disadvantaged groups in society, such as women. Example of
affirmative action policy include Quota System. This provide for equal representation of
women in parliament through the appointment of 60 additional non constituency female
legislators (section 124 (b) of the constitution).
 However according to the National Gender Policy (2013-2017) there are issues still
affecting women’s achievements:
 Poverty: Zimbabwe is no exception to the global increase in poverty levels where
women are poorer than men. 68% of female headed households in Zimbabwe live
under the Total Consumption Poverty Line according to a 2010 UNDP Report.
 Trade and industry: Although there is generally lack of statistics, reports indicate
limited participation of women in the formal trade sector.
 Employment: Statistics show the limited access to decent jobs by women: According
to the 2011 Labour Force Survey (LFS), the total employment to population ratio is
lower for females (72.3%) compared to males (83.9%). 70% of agriculture labor,
characterized by lowest wages, is provided by women. The share of women in wage
or paid employment in the non-agricultural sector in relation to total wage
employment in the non-agricultural sector was 24%.
 Labour rights- the government through the constitution is mandated to ensure that women
employees have a right to fully paid maternity leave for a period of at least three months. It
introduced the Labor Act (Chapter 28.01) which states that no employer or person shall
discriminate against any employee on grounds of race, tribe, place of origin, political
opinion, color, creed or sex in relation to:
 The advertisement of employment
 Recruitment for employment
 Determination or allocation of wages, salaries, accommodation, leave
 Marriage rights- the government implemented criminal law (codification and reform) Act
[chapter 9:23] which states that no female shall be pledged into marriage (section 94). It
states that no one by force or intimidation compels or attempts to compel a female person to
enter into a marriage against her will, whether in pursuance of an arrangement This is in line
with section 74 of the constitution which states that no person may be compelled to enter into
marriage against their will.
 Sexual rights- the government implemented the domestic violence Act [chapter 5:16] which
prohibits sexual intercourse between fathers-in-law and newly married daughters-in-law,
forced virginity testing and female genital mutilation. criminal law (codification and reform)
Act [chapter 9:23] defines rape as when a male person knowingly has sexual intercourse or
anal sexual intercourse with a female person and, at the time of the intercourse the female
person has not consented to it.
 Right to dignity-the society also ensure women are accorded their right to worthiness and
honor. During bride price payment the woman is entitled to a number portions of the overall
payment e.g. mafukidza dumbu, mombe yeumai etc.
 At home, the kitchen is her responsibility.
b) Rights of children
 Right to parental care- the government introduced the Children’s Act (chapter 5:06) which
states that children have a legal right to food, shelter, clothing, medical care and supervision.
If a child is not taken care of by parents, the government’s department of social welfare
services can arrange for a child to be taken away from those parents and be given to someone
who can look after him/her.
 Right to education- Government introduced the education Act whereby parents are required
by this law to make sure that their children attain basic primary education. Article 28 of the
United Nations Convention on the Rights of the Child (UNCRC) states that primary
education should be compulsory and free and in Zimbabwe soon after independence primary
education was provided free of charge. Also the government introduced the Basic Education
Assistance Module-BEAM which pay tuition fees to disadvantaged children in secondary
schools.
 Right to protection- the government adopted the guardianship of the minors Act which states
that if one of the child’s parents is still alive no one else can take away the child from the
parents, unless the court decides that it is in the child’s best interest. There is also the
National orphan care policy which provides for the care and protection of orphans to ensure
they are accorded all their rights. The domestic violence Act [chapter 5:16] criminalizes child
marriage
 Right to life- the constitution states that every person has the right to life. Article 5 of African
Charter On The Rights And Welfare Of The Child states that death sentence shall not be
pronounced for crimes committed by children. Those school going children have the
responsibility of avoiding life threatening situations like walking on the right side of the road
to avoid being hit by vehicles, walk in groups to avoid being kidnapped and report at home or
school any suspicious situation.
 Right to protection- the constitution states that children have the right to be protected from
economic and sexual exploitation, from child labour, and from maltreatment, neglect or any
form of abuse. Children who are able to speak have the responsibility of reporting any cases
of sexual abuse and parents have to encourage them to speak out. Children are entitled to
adequate protection by the courts, in particular by the High Court as their upper guardian.
 Right to survival and development- the constitution states that children have the right to
education, health care services, nutrition and shelter. They are not supposed to be recruited
into a militia force or take part in armed conflict or hostilities. If detained as a measure of last
resort, they are to be detained for the shortest appropriate period to be kept separately from
detained persons over the age of eighteen years; and to be treated in a manner, and kept in
conditions, that take account of the child's age.
 Right to Health and Health Services- article 14 of the African Charter on the Rights and
Welfare of the Child states that every child shall have the right to enjoy the best attainable
state of physical, mental and spiritual health. The government introduced the immunization
policy.
Children’s responsibilities
 According to article 31 of The African Charter On the Rights and Welfare of the Child,
every child shall have responsibilities towards his family and society, the State and other
legally recognized communities and the international community. The child, subject to
his age and ability, and such limitations as may be contained in the present Charter, shall
have the duty:
 to work for the cohesion of the family, to respect his parents, superiors and elders at all
times and to assist them in case of need;
 to serve his national community by placing his physical and intellectual abilities at its
service;
 to preserve and strengthen social and national solidarity;
 to preserve and strengthen African cultural values in his relations with other members of
the society, in the spirit of tolerance, dialogue and consultation and to contribute to the
moral well-being of society;
 to preserve and strengthen the independence and the integrity of his country;
 to contribute to the best of his abilities at all times, and at all levels, to the promotion and
achievement of African Unity.
c) Rights of the elderly- the constitution states that people over the age of seventy years
have the right to receive health care and medical assistance from the State. The
government introduced free medical facilities for the elderly in public hospitals except for
drugs and at times they receive free cancer screening and eye surgeries. The society also
supports this by giving them preferential treatment in queues and other gatherings e.g. ZB
Bank management created the Elderly Express Service where they are served without
waiting in a queue.
 The constitution also tasks the government to offer financial support by way of social
security and welfare. The government responded to this by introducing the National
Social Security Authority (NSSA) Act of 1989 (Chapter 17: 04) which operates as a
contributory and compulsory Pensions and Other Benefits Scheme, providing for
retirement pension in old age among other services. This scheme was introduced as a
sequel to Older Persons Act (Chapter 17:11) of 2012.
 Government exempts those over the age of seventy from the death penalty
 On food and other social safety nets, the government provides food handouts to the
elderly especially grain. They are also given free farming inputs during the rainy
season
 The society especially churches and well-wishers also compliment the government
efforts in upholding the rights of the elderly by building old people’s homes which
include Zororai Old People's Home, Mucheke old people’s home, Makoni Old
People’s Home in Rusape and Idawekwako Old Aged Home.
 However, severe limitations hinder the fulfillment of rights of the elderly. Social
solidarity and the family, expected to cater for the elderly face threats of
individualism, family breakdowns, deaths and a poor economy. Existing government
measures to assist the elderly are compromised by selective distribution,
inaccessibility, limited awareness among potential beneficiaries and the insignificance
of the benefits. The under-funded, non-contributory public assistance scheme, with
erratic disbursements, offers between $10 and $25 a month. It is unavailable to
individuals assumed to have extended families capable of assisting them. The Pension
and Other Benefits Scheme, offering paltry monthly payments of $40 - $60 monthly
way below the poverty datum line is based on membership and contributions. It
exempts the unemployed, informal sector workers, domestic workers and rural
peasant farmers.
d) Rights of persons with disabilities- section 83 of the constitution tasks the government
to take appropriate measures, within the limits of the resources available to it, to ensure
that persons with disabilities realize their full mental and physical potential, including to
protect them from all forms of exploitation and abuse to provide special facilities for their
education and to provide State-funded education and training where they need it.
 The government adopted the Disabled Persons Act, of 1992 which states that no
disabled person shall on the ground of his disability alone, be denied admission into
any premises to which members of the public are ordinarily admitted or the provision
of any service or amenity ordinarily provided to members of the public.
unless such denial is motivated by a genuine concern for the safety of the disabled
person concerned. The society and well-wishers have also chipped in by providing
wheel chairs, food, clothing and other amenities required by this group. The Angel of
Hope foundation offers wheelchairs.
 Right to employment- the Act further points out that no employer shall discriminate
against any disabled person in relation to the advertisement of employment, or the
recruitment for employment or the creation, classification or abolition of jobs or posts
or the determination or allocation of wages, salaries, pensions, accommodation. leave
or other such benefits, or the choice of persons for jobs or posts, training,
advancement. apprenticeships, transfer, promotion or, retrenchment; or the provision
of facilities related to or connected with employment or any other matter related to
employment.
 Right to education- the government adopted Education Act of (1997) which is a non-
discriminatory policy which requires that ‘all students, regardless of race, religion,
gender, creed and disability have access to basic or primary education (up to grade 7).
Section 6 of the constitution tasks the government to promote and advance the use of
all languages used in Zimbabwe, including sign language, and must create conditions
for the development of those languages. The government created three national
centers to cater for vocational needs of people living with disabilities:
 Beatrice National Rehabilitation centre
 Ruwa Rehabilitation Centre which caters for vocational needs like welding,
garment making, carpentry etc
 Lowden Lodge in Mutare which caters for female student at primary school level’
In addition, the government also assist special needs schools like Emerald Hill School
of Deaf and Dumb, Copota school and Danhiko.
 However, most schools in Zimbabwe still have shortage of sign language teachers,
facilities to accommodate children using wheelchairs, braille materials for those
blind. The inhibitive economic environment has hindered equal participation as others
may lack the necessary resources like sun creams for those with albinism.
 The government also registered 30 Disabled Person Organizations (DPOs) in Zimbabwe
which include Danhiko project, Jairos Jiri and Zimcare Trust. Others like Zimbabwe
Parents of Handicapped Children assist the physically challenged by teaching them
sewing and weaving.
 He government has implemented a Disability Rebate on specified motor vehicle
imported by physically handicapped people. This means suspension of customs duty on
such vehicles.
 The government adopted a National Disability policy which push for inclusivity.
 The society through Disability advocacy groups has been pushing for a focal person in
every government department to cater for disability concerns. Some are calling for the
creation of a Ministry specifically for people with disabilities
 However, the society itself has been at the end of criticism in as far as the issue of
people with disability is concerned. The Ministry of Tourism and that of public
service and social welfare in September 2016 visited most hotels in Zimbabwe to
check how they catered for people with disabilities in their tourism facilities. The sad
thing was that hotels are still far from inclusivity, for example they discovered that
there were no speakers to notify visually impaired people on which floors they are in
while using elevators, also bathrooms had no soaps and oils for those with albinism.
e) Rights of the veterans of the liberation struggle
 The constitution tasks the government to accord due respect, honor and recognition to
veterans of the liberation struggle, that is to say those who fought in the War of
Liberation, those who assisted the fighters in the War of Liberation; and those who were
imprisoned, detained or restricted for political reasons during the liberation struggle.
 The government created the Ministry which looks the welfare of the war veterans, war
collaborators, political detainees and restrictees to provide economic and social support.
 The War Veterans Act, Chapter 11:15(22/2000) provides for a War Veterans Fund
which can be accessed by any veteran for:
 Physical, mental or social rehabilitation of war veterans
 Manpower development
 Funeral expenses in respect of war veterans
 Loans for income generating projects
Social safety nets on vulnerable groups from pre-colonial, colonial and post-colonial period
 Social safety nets are programmes designed to protect the poor and vulnerable from shocks
and contribute to reducing poverty and they are important elements of a country’s poverty
reduction and growth strategy.
 Also known as social protection and social security these refer to the protection that society
provides for its members through a series of public measures so as to cushion members
against contingencies such as sickness, maternity, employment injury, invalidity, old age and
death of a breadwinner (ILO, 2000).
 Pre-colonial period
 Social security has always existed in pre-colonial Africa. Traditionally communities had
ways of protecting members against resource and social challenges caused by death,
sickness, old age, disability or hunger. These were organized around the family, kinship, clan
and community. Viewed in the context of Western social security, these are referred as
traditional social security systems.
 Zunde raMambo (Chiefs’ Granary)- Dhemba et al (2002) state that the Zunde raMambo
was designed to feed vulnerable groups particularly older persons, orphans and widows in
times of drought or famine or food insecurity. All members of the community contributed
grain to the Zunde raMambo under the supervision of the chief. This is one of the oldest
traditional social safety nets based on the spirit of collectivism. The orphaned, elderly and
disabled were the groups of people who received food rations from such reserves in times
of distress. Food rations comprise grain in stock commonly maize, rapoko, millet and
beans. Through the chief’s granary the poor were afforded minimum basics to help them
against falling into absolute poverty. Thus the concept helps promote, protect and
transform communities.
 Nhimbe (work party)-members of community could come together to help one in the field
in exchange for food and beer. No payments were demanded but it was a gesture of
helping one to achieve better results in the filed or shelling grain.
 Cattle lending(kuronzera)- the concept involved lending of cattle by community members
to a disadvantaged member for use as draught power so as to aid improved agricultural
productivity within the recipient’s household. Practice was very beneficial to the
individual who would have been rendered the cattle. The cattle provided alternative
draught power during farming season. This was also a similar situation to Mchomvu et al
(2002)’s research findings where in their study in Tanzania found that the Maasai people
had the practice of lending cattle to other heads - of households when they lost their cattle
due to drought or other causes.
 Deceased family’s guardianship (“Sarapavana”)- another common practice where by in
the event of a parent’s death the relatives will appoint some other member of family to
take up guardianship of the deceased’s family as measure to ensure continued material and
social support to the orphaned. A concept of social protection mechanism known as
“Sarapavana” which literally means one left to exercise guardianship to the deceased’s
children. For example, if a father dies, the father’s brother will be appointed to become a
“Sarapavana”.
 Changing household composition- in response to a crisis as family members move
between households. Such type of traditional social security mechanisms were based on
the principles of solidarity and reciprocity. Traditional and religious belief systems played
a critical role in instilling sense of obligation among family members and community
members to provide assistance to fellow members so as to cushion them during periods of
distress such as invalidity, sickness, death and old age. The Ubuntu philosophy (spirit of
togetherness) and fear of punishment from ancestral spirits were mentioned as some of the
traditional beliefs that helped instill sense of obligation among community members.
 Children-they were also viewed as a form of social security (Kaseke, 2003). The more
children had the more the labor force had. In the event of the death of parents, older ones
could look after the younger ones.
 The extended family- provided support to its members in the event of exposure to risks
(Bayra, 2011; Kaseke and Olivier, 2010). The extended family institution and community
were obliged to look after the sick, the vulnerable and orphaned children, older persons,
those with disabilities and the bereaved (Ouma, 1995; Devereux and Sabates-Wheeler,
2000). The arrangements were based on mutual aid assistance given on the mutual
understanding that it will be reciprocated in future (Kaseke, 2013). This type of support
was also rooted in cultural norms and values and based on the principle of solidarity.
 However a number of factors related to urbanization posed an opportunity or threat to the
survival of traditional forms of social security. Industrialization, westernization which came
with colonialism were some of the factors prompting or threatening the survival of pre-
colonial forms of social security.
 Colonial period
 Welfare associations-they were organized by African political protests whose main purpose
was to assist each other during time of need. One example is the Gwelo Native Welfare
Association led by C Gwebu and Alfred Maliwa Zigode which concentrated its activities
within Gwelo and the Midlands towns.
 African indigenous churches- most of these church organizations had schemes in which
they would make members contribute towards disadvantaged members of the community
who include the orphaned, widowed, disabled and the aged. The Zionists and the Apostolic
Faith or Vapostori interpreted the Bible the African way and preached messages of hope.
 Burial societies- they were a critical social security mechanism for Africans who could not
afford private funeral policies due to colonial policies which paid them low wages. These
societies usually provided coffins, food, transport and cash if a member die. People would
collect food stuff such mealie-meal to be used during the funeral.
 Savings groups- The scheme rides on the Ubuntu philosophy and acts as way of helping
African communities save their little earnings while at the same time offering small loans to
start small income generating projects or cover another pressing household need.
 Remittances- a common practice that was confined to members of close relation particularly
from children to parents, niece and cousins to uncles and aunts and grandchildren to
grandparents. Key public holidays were most common periods for receipt of such services
from those worked in town such as Salisbury, Gwelo, Umtali, Que Que etc. These holidays
included Easter, Heroes and Christmas holidays.
 Post-colonial period (for more refer to the roles played by society and government in
upholding the rights of men, women, children and vulnerable groups)
 FURTHER READING: Challenges around social safety nets (SSNs) in Zimbabwe

(The Zimbabwe Independent April 30, 2021)
Social safety nets continue to deteriorate, there is a lack of transparency and accountability
in choosing beneficiaries and distribution of benefits. During Zimbabwe Council of
Churches (ZCC)’s First Quarter Policy dialogue with the parliament held on 12th of April
2021, there were concerns, among others, that funds allocated to PWDs were insufficient,
Social Security and Service delivery remains poor and medical aid and insurance are
beyond the reach of many. Many people had lost their medical aid and insurance after failing
to pay their premiums during the lockdown. All these issues lead to an increase in vulnerable
people which need more social safety nets.
Whilst we appreciate the development partners such as the World Food Program, FACT,
Catholic Relief Services, Hunger for life, etc and even President and First lady’s assistance
programs, in helping the vulnerable, there is weak coordination of these humanitarian
responses. This promotes corruption in access to support and exclusion of marginalized
groups. There is also poor monitoring and accountability systems for resources allocated
towards social protection and lack of stakeholder coordination initiatives by these different
players resulting in double-dipping by some beneficiaries.
Zimbabwe has a good legal and policy framework which guarantees the protection of
vulnerable groups, however it lacks capacities to implement them. Another challenge is the
use of fragmented and silo-based approach to social protection with multiple programmes yet
limited reach with the opaque reporting system. In doing so there are weak underlying
delivery systems, including the lack of Management Information Systems (MIS) and Lack of
Specialised Protection Systems for children leading to increased child marriages, child
labour, school drop-outs, drug and substance abuse.
In terms of availability and accuracy of social data, there are claims that Zimbabwe does not
have a consolidated and comprehensive social data set of all vulnerable people. Our data
set is therefore very poor, even development partners who do programmes to assist the
vulnerable don’t have consolidated data set. They end up developing their own data sets and
there are challenges of double-dipping and politicisation when names are submitted.

Topic 8 Constitutionalism

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Topic 8 Constitutionalism

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TOPIC 8: CONSTITUTIONALISM

Constitution and constitutionalism

 FURTHER READING: Rousseau (1762) Du Contrat Social ( The social contract)

 Responsible and Accountable Government-In the democratic nations (countries) people

Role of the constitution in nation-building

 Nation-building is the process whereby a society of people with diverse origins,

Functions of National Peace and Reconciliation Commission

 59. Freedom to demonstrate and petition

Pre-colonial African constitutionalism

 Mapungubwe state system of governance

 Zulu state system of governance

 Mutapa state system of governance

 Ndebele state system of governance

 Mandinka state system of governance

Colonial African constitutionalism (system of governance)

Post-colonial African constitutionalism (system of governance)

Contribution of pre-colonial African constitutionalism to our current Zimbabwean home-

Rights and responsibilities of citizens in Zimbabwe in pre-colonial period

Rights and responsibilities of citizens in Zimbabwe in the colonial period

Rights and responsibilities of citizens in Zimbabwe in the post-colonial period

Rights of vulnerable groups

 FURTHER READING: Challenges around social safety nets (SSNs) in Zimbabwe

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