Zim constitution not the primary problem
Dr Alex Magaisa
This idea of the campaign is correct and commendable. My concern however, is that it targets a change of the set of rules under which the country is governed without placing similar emphasis on the culture and norms that define the attitude and conduct of individuals between themselves, organisations and the state. It is a note of caution suggesting that the success of a new constitutional order depends not necessarily on the beauty of the new legal rules that are established but on the behaviour, norms and socio-political culture in the society.
In short therefore, the article urges the deployment of attention and resources towards cultivating a local constitutional culture as a pre-requisite for the success of the constitution. Without the constitutional culture the spirit of constitutionalism cannot be sustained.
The growth of this culture starts at the very basic unit of society to the highest organs of the state. To that end, the family, the village, neighbourhood, local community, civil society organisations, political and non-political organisations, commercial and non-commercial organisations all have a role in cultivating this constitutional culture, which supports constitutionalism. It is not mere adherence to rules that matter but whether those rules encapsulate the values of a given society and lived and experienced by the citizens. This bundle of factors determining whether or not there is a suitable constitutional culture is what leading scholars have called “social capital”. Instead of expecting the constitution to save the people from misery, it is the people who have an obligation to save the constitution from failure.
I have previously used a similar argument in relation to corporate governance in the economic marketplace – arguing that in most cases issuing voluminous codes on corporate governance does not automatically mean that there will be an improvement in corporate governance. Instead there must be focus on other ways, usually non-legal ways of changing the long established norms, culture and conduct in the marketplace, which often differ from one country to another. Laws on their own do not change that – and other approaches must be sought.
The current approach assumes in part that the constitution can work as a tool of social engineering, that is, as an instrument of changing the political culture and conduct of the leadership towards the citizens and democracy. It is argued that a key fault in the current constitution is that it centralises power in the executive arm of government. However, it also assumes that if a new constitution is promulgated the political leadership will have the right attitude and inclination to conduct themselves in ways that further the goals of the constitution. The assumption that the political leadership will submit to the constitutional limitations simply because a new constitution has been promulgated is inaccurate. It also assumes that the citizens will have the desire, capacity and resources to serve and defend the constitution. A new constitution does not equate to a new constitutional culture.
Indeed a constitutional culture is not automatically and instantly triggered by the emergence of a beautifully crafted constitution. Developing social capital to grow the constitutional culture is a long-term issue and unsurprisingly it is often unattractive to politicians seeking immediate political power. It is also a remote incentive for people who are struggling to get by under admittedly very difficult socio-economic conditions. Politicians tend to focus on the tangible document – the constitution. But we must also talk about these unpopular, less-eye catching issues and place them in the marketplace of ideas for people define their agenda for change.
But how then can the requisite constitutional culture be developed? The key thing is that it is an organic process, which simply needs to nurtured and encouraged. The Constitution is a testament of the values cherished and protected by a society over a period of time. It is therefore important to have a good appreciation of the constitutional history of the nation. This history is vital because it shows us the values that have been cherished and advanced at each stage of development and therefore shapes the future direction. Constitutional culture is at the same time local and international – local in that it grows out of the needs and experiences of the Zimbabwean people and global in that there are common threads that can be identified in all societies across the world based on the idea that at the centre of all political struggles is the desire for human dignity and respect.
In essence, therefore the creation of a constitution is part of the political struggle. If it is correct that constitutions are products of political struggle there three key points that follow from this characterisation:
First, every constitution ought to reflect the values, ideals and goals of the society engaged in political struggle. A constitution is therefore likely to be unique depending on the experiences of that particular society. They key here is for society to identify and entrench its values in the constitution – in other words, the values that the constitution protects cannot be prescribed from outside and cannot be divorced from the values of the living communities. The values to which a society aspires define the conduct and attitudes of individuals that is essential for cultivating the constitutional culture. Close observation shows that Americans always refer to their values, as do the British, the French or other societies that have had long recorded constitutional histories. Our values do not have to equate to those of any other country, but they must be defined nonetheless.
Second, because it is part of the political struggle constitution making is necessarily an on-going process. My concern is that the current approach seems to have given the impression that the creation of a new constitution is an achievement that will guarantee good governance and everyone will live happily ever after. The reality is that constitution making will not stop on the day a new document replaces the current one. It is worth remembering in the history of modern Zimbabwe there have been several episodes when the constitution has been changed. It is easy to forget that the pre-colonial societies had their own constitutional arrangements as did the colonial society afterwards. Constitutional historians therefore have a key role to play in the constitution-making process. In essence, citizens must be prepared that constitutional struggles will continue, albeit in different forms over the course of time.
Third, by virtue of it being a political struggle, there will inevitably be victors and losers at every stage. The losers at every stage will continue to seek change. But winners at one stage may become losers at another point depending on the changes in societal values influencing interpretation of the constitution. Values and goals also change over time and with that rights are either gained or lost. Historically disadvantaged people such as gays, women, black people, ethnic minorities have at different times in the course of history gained rights as societal values in different places changed. But it is not the Constitution that changed the values – the changes in those values most likely helped to transform society’s views and therefore political and legal interpretations of already existing rights.
Civil society organisations, political parties and all organisational units need to engender the constitutional culture at local and national levels. Indeed, at the very basic unit of society – the family – that is where values emerge and we have to start from there in developing the culture that supports constitutionalism. One cannot emerge from a family unit in which he or she tramples the values that he or she wishes to preach at the national level. The children’s behaviour, attitude and conduct are defined at the family and local level. They grow up to become leaders in society and their conduct is shaped by the values they learn from an early age. If he grew up knowing that nothing can be obtained without paying a bribe or taking unfair advantage of another person, how can he be expected to act differently when he assumes a position of power? Individuals and organisations and that govern in traditional and modern institutions need to cultivate the culture of tolerance, free-speech, fairness, competition among other values. Civil society leaders have to start the process internally in order to make an impact when they preach the word of the constitution and democracy.
Similarly, the leadership of political parties fighting for democracy has to realise that its conduct and attitude toward rules, political institutions and other people is as important as the document that it continually talks about. How they respond to dissent, competition and diversity and how we deal with minorities or those that disagree is part of the process of building that culture.
I hazard to add that for all its weaknesses the current constitution is not exactly the primary problem. Rather, it is the conduct and behaviour of the incumbent leadership, indeed any leadership that behaves similarly that is at fault. And this deplorable conduct occurs with or without the presence of rules. As I have argued before when closely analysed, the constitution has simply been a tool to legitimise actions but has not necessarily been the main driver of the actions of the leadership. Experience shows that conduct that is patently unconstitutional has been permitted over the years – even in the face of clear constitutional safeguards. So rules in themselves are not the problem. A good example of the irrelevance of rules in this context is in relation to the judiciary:
The leadership could violate the constitution and yet the judiciary fails to do anything about it regardless of the presence of constitutional powers and obligations to safeguard the constitution. We must recall that even the much-criticised judiciary has always acted under the current constitution and at one point was one of the best in the Commonwealth. The constitutional rules have not changed in any fundamental way – but the conduct and attitude of political actors towards the judiciary has changed most probably causing the judiciary to change as well by retreating to the margins. The rules have not changed but the values, character, ideals and conduct of the principal actors have changed. We can have a constitution with all the best safeguards, a constitution with the most beautiful clauses but if the men and women who exercise power and make decisions have no will to change their conduct because they subscribe to different values, then that constitution will remain ineffective.
I must end by acknowledging the efforts of the various groups, both political and non-political, that have played roles in raising awareness about the day constitution. Certainly, more people know about the constitution in 2006 than they did in 1996. However, a lot more needs to be done to promote constitutional literacy as part of cultivating the constitutional culture. From primary school, children have to know about the constitution and its importance in the governance of the country. When we talk about a new Zimbabwe we often restrict our vision to an escape from the current malaise. In reality, a new Zimbabwe will emerge over a long period of time. It may never be realised in our lifetime but let us look ahead 20 or more years – and hope that generations to come will look back and acknowledge that a firm foundation was laid for them.
The idea of constitutional culture as argued in this article demonstrates that the struggle for constitutional change is not and must never be the exclusive preserve of lawyers endowed with drafting and advocacy skills. It requires us to tap from other disciplines, which best capture the values and the softer aspects that define the conduct and behaviour of people in relation to each other and institutions. It also involves calling upon ideas and wisdom from both traditional and modern institutions at local and national levels. It requires every individual to participate at the most basic level because the people themselves are the constitution for the constitution is no less than living practice – not just a set of carefully crafted words on a document stored somewhere in the official cabinets. The law alone will not change the situation – we have to look beyond the law in building and nurturing the requisite constitutional culture. The fight for the constitution must continue but with a necessary eye toward the issues discussed briefly in this paper.
Dr Magaisa is
a lawyer and can be contacted at email@example.com
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