By Alex Magaisa
This week, I participated in a Zoom Policy Dialogue Forum organised by SAPES, the Harare-based think-tank led by Dr Ibbo Mandaza. The dialogue was moderated by journalist Violet Gonda. My brief was to lead a discussion on constitutionalism and the military. It was a fascinating conversation in which former Minister, Professor Jonathan Moyo and human rights defender Jestina Mukoko also participated.
In my opinion, the starting point must be an acknowledgement that Zimbabwe is currently in a state of militarism, which is very different from constitutionalism. By militarism, I refer to a condition in which the military has overwhelming power and control over the rest of the state, where the traditonal distribution of power within the state is upset by a dominant and invasive security apparatus. To talk of constitutionalism in such a context is fanciful because the traditional arms of the state are reduced to cosmetic and ornamental status. Without effective checks and balances, there is no constitutionalism.
I would like to address this issue in more detail, explaining why I believe militarism is the dominant paradigm; why it is necessary to migrate to constitutionalism and what it takes to achieve and maintain constitutionalism.
The traditional conception of the state
The traditional conception of the state is that it comprises three arms: the executive, the legislature and the judiciary. The theory of separation of powers, which is enshrined as a founding value and principle in our Constitution means each arm of the state has defined and separate functions – the legislature makes laws; the executive implements the laws, and the judiciary interprets the laws.
In theory, these arms of the state are supposed to act as checks and balances on each other’s power. The reality, however, is often very different. While the principle of separation of powers has the legislature as the arm that makes laws, the truth is that the legislature is often reduced to a rubber-stamping institution, with all laws initiated by the executive arm of the state. This is worse where the executive routinely resorts to statutory instruments, which render the legislature redundant. There has been increasing use of SIs under the current regime, which reinforces the image of rule by decree.
When the legislature does everything that the executive wants to be done without any scrutiny, it fails in its role to check and balance governmental power. This failure happens for several reasons. The main factor is that the ruling party controls the legislature. With two-thirds majority control of the parliament, ZANU PF can pretty much do what it wants, when it wants. This is why Constitutional Amendment No. 2 is going through despite concerns and protests across the country. Even if individual members of the ruling party have different views, they are simply whipped into line by the Parliamentary Whip system which ensures compliance by everyone along party lines.
So does the legislature make law? In theory, it does, but in reality, laws come from the executive, and they are simply rubber-stamped by a controlled parliament.
The judiciary is supposed to be the most potent check on governmental power. The system of judicial review allows courts to scrutinise the exercise of public power. Judges can set aside decisions made by the government if, for example, the principles of natural justice are not followed. Judges can also set aside legislation or any conduct because it is unconstitutional.
Nevertheless, the effectiveness of judicial review depends on the independence of the judiciary. If the executive captures the bench, it will not be able to provide a sufficient check on the government. Instead, it becomes worse as a tool for legitimating the conduct of the executive. The regime can say, even the courts agree with us; therefore, we have done nothing wrong. This provides a veneer of legality to otherwise uncouth conduct.
What emerges from this is the traditional conception of the state must be understood in light of the nuances of a specific political context. Separation of powers in the US is very different from the separation of powers in the UK, Germany or South Africa. In Zimbabwe, we have seen that there is no pure separation of powers. We inherited a Westminster model of government at independence, which by design does not augur well with the principle of separation of power.
This has been made worse over the past forty years, during which a formerly independent judiciary was turned into a more pliable one. This change happened over the last 20 years when the Mugabe regime drastically changed the composition of the bench to facilitate the Fast Track Land Reform Programme. The government believed the judiciary it inherited at independence impeded land reform. The purge of judges resulted in a fundamental shift in the judicial approach, from one that was a critical check upon governmental power to one that was more facilitative of it.
November 2017 and the rupture of the state
Nevertheless, something else happened over the years, culminating in a more visible form in November 2017 when the military toppled former President Robert Mugabe in a coup. The coup did not just see the removal of Mugabe from the presidency. It also had a fundamental impact on the configuration of state power. In addition to the three traditional arms of the state, a new division emerged, namely the security structure or simply, the military.
The military justified the coup on the basis that it was defending the Constitution. There was no legal basis for this. The conduct of the military was unconstitutional as the only person who had the power to deploy the military was President Mugabe, as the Commander-in-Chief of the Defence Forces. However, although the Constitution outlines provisions for military deployment, the Judge President of the High Court, Justice Chiweshe ruled that the deployment in November 2017 was constitutional. The implication was that the military had the power to hold the executive accountable, even without presidential command. This was contrary to the commands structure, which places the military under the control and direction command of the executive.
The net effect of the coup is that it generated a de facto reconfiguration of the state, placing the military at par and as separate from the other traditional arms of the state. What has gone on to happen is that the military is now the most dominant and pervasive force within the Zimbabwean state, it’s influence felt in virtually every part of the nation-state. This means, therefore, that to see Zimbabwe through the traditional lens of the state, comprising the executive, legislature and the judiciary would be a gross mistake. Zimbabwe is a military state with a civilian facade.
The notion of Imagined Realities
In my view, the best way for laypersons to understand the idea of constitutionalism is to view it as a belief system. In this regard, I borrow the concept of imagined realities as presented by historian Yuval Noah Harari, in his magisterial book, Sapiens – A Brief History of Humankind. In explaining why constitutionalism should be treated as a belief system, let me start with Harari’s exposition of imagined realities.
According to Harari, the genius of humankind, which sets us apart from other animals is our ability to imagine. The power of imagination enables us to create things that do not exist in physical form. These things that we create in our imagination are called imagined realities. In due course, they become even more influential than physical realities.
One example of an imagined reality is the “nation”, which can exist in the minds of those who believe in it, even without a physical territory. All you need is a significant number of people who in their collective imagination believe they are part of a single nation. Struggles for secession are based on this collective belief in nationhood. Twenty years ago, there was no country called South Sudan. It took a long and bloody war to align the imagined reality with the physical territory.
Another example of an imagined reality is religion. You have to have faith in things that you have not seen and cannot even see. You have to believe in the stories that you are told. While the world has a few dominant religions, there have not always been so dominant. Indeed, there are many religions in the history of humankind which suffered extinction because people stopped believing in the imagined realities upon which they were based. People stopped believing their stories. Likewise, there is no guarantee that current religions will still be dominant two centuries from today. Much will depend on whether significant numbers of people still believe in them.
Money, as we understand it today, is another imagined reality. This is becoming even more evident in the modern era of digital money. The majority of the money that circulates in the world does not exist in physical form. It never has. The bulk of funds exists in electronic form. When someone buys a million-dollar house, he does not pay a million dollars in physical cash. It is simply transferred between the banks, in electronic form. Everyone accepts this because they believe that electronic money is just as good as real dollars.
When the Zimbabwe Dollar died in 2009, it was because no one believed in that imagined reality anymore. By contrast, the majority believed in the imagined reality represented by the US Dollar. When the government re-introduced the Zimbabwe Dollar in 2019, it was trying to sell a new imagined reality. The ability of that Zimbabwe Dollar to survive depends on whether Zimbabweans’ collective imagination shared the same belief in it. It has lost significant value because very few people believe in it. This is why it is destined to collapse and die again.
Electoral contests, in their purest form, might be seen as contests over imagined realities. This is because political parties are also imagined realities. Individuals come together to form a political party. Its success depends on the extent to which it is believed in by the people. If a significant number of people believe in it, it will do well while the opposite is also true. This is why, in the contestation taking place between factions of the MDC, the ultimate winner is not which imagined reality the courts of law validate but the one that has a significant following in numbers. An imagined reality that has few people will ultimately collapse.
I have provided enough examples to explain the meaning of an imagined reality. But there are many more illustrations which the reader can think of: things that do not exist in physical form but are formed in our collective imagination, are sustained by stories, rules and norms, and survive because significant numbers of people believe in them. I want now to move on to the notion of constitutionalism and explain why it is also an imagined reality. Its survival is highly dependent, like other imagined realities, on collective belief.
Constitutionalism as an Imagined Reality
It is essential to understand the notion of constitutionalism as an imagined reality, in the same mould of other imagined realities, which are fundamental in building modern societies. The central elements of constitutionalism are that the Constitution is supreme and governmental power must be limited. This arises from a realisation that public power in the hands of a few is prone to abuse. Those who hold power must be guided by a set of rules to which they must have an obligation to adhere. But it is not enough just to have rules. Those rules must limit the use of power. Constitutionalism is an idea that exists in our collective imagination.
The set of rules that comprise the imagined reality of constitutionalism can exist in written or unwritten form. Often they exist in both forms. Thus there is often a written text called a Constitution and unwritten rules, which can be referred to as conventions, norms or taboos. Most countries have single written documents, their constitutions but the United Kingdom famously has an unwritten constitution, its constitutional rules existing in multiple sources, both written and unwritten.
Despite lacking a single written document like others, the system has served the United Kingdom well for centuries. However, some argue that it’s now essential to reduce it to a single written document. It is imperfect, but it is fair to say that by comparison, the UK has better a better culture of constitutionalism than many other countries that have written constitutions. This is because the political system has developed invaluable conventions and norms that assist it in promoting a culture of constitutionalism. This is not the place to do a critical examination of the British system. Still, it’s a useful example of the role of conventions and other unwritten norms that support constitutionalism.
The idea that the Constitution is supreme, indeed, that it is a sacred document is a vital myth which sustains constitutionalism. People must believe that it is supreme; that everything else falls under it. The Constitution of every country makes this critical claim that it is the supreme law which reigns above al others. Interestingly, by analogy, if you scrutinise the prevalent religions, you will find that they also claim superiority and exclusiveness.
For example, they command belief and prohibit allegiance to any other gods. The Constitution makes the same claim, that it and only it is the supreme law of the land. The god of constitutionalism is the law of the Constitution. No other law competes with it. Those of the Christian faith may recall that the fundamental character and binding nature of earthly laws find recognition in the scriptures – hence, render unto Ceasar what belongs to Caesar, and God what belongs to God. But it is not enough for the Constitution to make this claim. Citizens must believe in it.
The Unwritten Rules
Furthermore, while written rules are important because they dictate who has power and when and how it might be used, they are not enough. More significant, in my opinion, are the unwritten rules. These are the norms, conventions and taboos that form part of a belief system. They guide society as to what should or should not be done. One of the most important unwritten rules is sacredness. Belief systems hold a select group of things as sacred. This creates essential boundaries that should not be breached. The penalty for violating these sacred rules are often dire. In some societies, a person who breached sacred rules would be banished for a while as a sanction for bad behaviour. This is what Okonkwo, the tragic hero in Chinua Achebe’s Things Fall Apart discovered when he was banished from Umofia for committing an abomination.
This is why it is crucial to raise the Constitution to the status of sacredness. If it is sacred, it commands greater respect and protection. Humans are wont to respect and protect something that has sacred status. They are reluctant to desecrate it. They do so collectively in the belief that it is good for society. Most people would regard it as an abomination to burn the Bible or any item that is considered to be sacred by a community. The moment significant numbers of the community start treating sacred texts with contempt, the imagined reality it supports falls into serious jeopardy. This is why societies jealously guard the things they consider to be sacred.
Apart from both written and unwritten rules that sustain constitutionalism, it also requires champions who teach and promote its word. Just like religions, constitutionalism needs its bishops, priests and pastors who preach the gospel of constitutionalism. It’s not everybody who becomes a bishop or priest or pastor. They are trained for many years. They understand the religion whose word they preach. It’s the same rules for constitutionalism. It needs champions who understand its meaning and who can teach it to others. That is how it draws in believers who are prepared to not only practice its word but also to defend it. It has to be taught to those in the service of the state, because they are the ones who need to live by the limitations on state power.
Our Constitution contains various rules that regulate the conduct of members of the military. One of the key provisions in our constitutional set-up is the principle that guides the relationship between military and civilian authorities. This relationship is guided by both written and unwritten rules. The Constitution and legislation like the Defence Act and the Police Act contain provisions that specifically prohibit interference of the military into the political terrain. There is both a written and unwritten pact that the military will respect the boundary of civilian politics. It is taboo for the military to interfere in political affairs. Some norms ensure that while the military has the greatest and most lethal power with a state, it nevertheless exercises forbearance and respects these political boundaries. They avoid interfering not because they lack the power but because they respect the rules, norms and taboos that govern the relationship.
What makes them do this?
Across the world, the military generally submits itself to civilian authority because they respect the rules, norms and taboos that govern that relationship. They recognise that in the long run the costs of breaking these rules, norms and taboos is greater than the benefits. However, occasionally, there are breaches and we call these coups. Coups represent a violent break in the rules, norms and taboos that guide the relationship between the military and civilian authorities in a constitutional democracy.
When a coup happens, it means that the military has broken the norm of forbearance, probably the most critical norm in that relationship between civilian politicians and military generals. The military would have used the power it would normally be reluctant to use. This presents a dangerous situation because when it happens the first time, the chances of it happening again in the near future increase. This is why in countries that have had coups, they have often been followed by more coups giving rise to the cliche, “a coup begets a coup”. It is because the rules, norms and taboos which usually cause restraint among soldiers would have been broken and cheapened. Sacredness would have been discarded.
For such a society to recover its constitutional democracy, it has to reconstruct the architecture of belief in rules, norms and taboos of constitutionalism. This is difficult but not impossible. Several African countries suffered coups in the post-independence era, leading to a rupture in relations between the military and the civilian politicians. However, many recovered in due course and re-established constitutional democracies. Perhaps the most remarkable example is Nigeria. It re-established its constitutional democracy in 1999 after decades of numerous coups and violent military rule. The process of recovery is by no means complete in Africa’s most populous country, but it is now a long way from the days of blatant coups and clear military rule.
Legacy of November 2017
At this juncture, Zimbabwe is at a stage where the rules, norms and taboos that govern the relationship between civilian politics and the military are fundamentally broken. This is the most fundamental legacy of the November 2017 coup, although it has been said that this military intrusion had been happening progressively for two decades. Indeed, some would argue, as did Professor Moyo during the SAPES Policy Dialogue Forum, that the soldiers were never in the barracks from the beginning. Nevertheless, what is not in doubt is that the coup in November 2017 exposed the fundamental break in rules, norms and taboos. The traditional separation between the political and the military no longer holds.
Indeed, it might be said that the traditional notion of separation between three arms of the state is now outdated and does not reflect the current distribution of public power in Zimbabwe. The military is the de facto power, regardless of what is in the Constitution. None of the traditional arms of the state – the executive, legislature or judiciary has the power to hold the military accountable or to keep it in check. They cannot be effective checks and balances against military power because they are effectively captured. This is why the military is effectively calling the shots. The most recent show of power was the banning of mobile money payment systems and the closure of the Zimbabwe Stock Exchange.
This is why I argue that the current situation in Zimbabwe is a state of militarism rather than constitutionalism. A state of militarism is where the military is effectively in control; where traditional controls of constitutionalism are rendered weak and ineffective. The traditional controls, such as the legislature and parliament, are merely of ornamental value. They are misleading because their presence creates a facade of a constitutional system.
So what’s to be done?
The first thing is to acknowledge that there is no constitutionalism but a state of militarism. Both internal and external actors must appreciate this reality. It helps to shape policies towards Zimbabwe. The electoral process is a waste of time in a state of militarism, because elections are mere rituals performed for box-ticking purposes. If foreign actors concerned with Zimbabwe understand that they are dealing with militarised rather than a constitutional democracy, they might design more nuanced approaches towards the problem. In this state of militarism, electoral processes will not provide a solution to Zimbabwe’s challenges.
The people of Zimbabwe ought to realise that power lies in their hands. They are the owners of all authority to govern. They must believe in the imagined reality of the Zimbabwean nation. If they do, they can build sufficient motivation to defend their nation. They must believe in the idea of constitutionalism. If they do, they can build the motivation necessary to defend constitutionalism. Only they can restore their nation to a state of constitutional democracy. The executive itself, which is now captured, needs rescuing.
The military regime’s principal tool is coercion since its rule is not based on consent and since it cannot get consent. But it can only rely on its coercive power for so long. It is expensive to maintain power through coercion. Agents of coercion must be paid to perform their duties, but in due course, it becomes a costly relationship between principal and mercenary. It is unsustainable.
At some point in the near future, Zimbabweans will discover that they have more power than they imagine and that the seemingly powerful are actually just as vulnerable. But in due course, to rebuild Zimbabwe’s constitutional democracy it will call for a renewed faith in the idea of constitutionalism.
I began this article by explaining how the traditional view of the state no longer holds in Zimbabwe and how they could expose a fundamental rupture in relations between the military and civilian spheres of politics. I explained how Zimbabwe moved into a state of militarism, the opposite of constitutionalism. I explained the idea of constitutionalism and that it ought to be understood as a belief system and treated in similar ways to the treatment of religions and other imagined realities. I conclude with very brief points that encapsulate the BSR:
The military has become the de facto power in Zimbabwe, and the traditional notion of separation of powers is misleading.
Militarism reigns over constitutionalism, leading to egregious abuse of power.
The sacred text of constitutionalism is the Constitution, and a process of recovery needs to restore this belief in sacredness.
Chapter 4 of that Constitution, on fundamental rights and freedoms, which command the state what it cannot do are the equivalent of commandments in the gospel of constitutionalism.
There is a need for bishops, priests and pastors of constitutionalism. They are the men and women who spread the word.
There is a need for a restoration of norms and beliefs that guide relationships between organs of the state. These norms such as sacredness, respect and forbearance, as explained by Levitsky and Ziblatt in How Democracies Die, are a fundamental part of the belief system of constitutionalism.
Constitutionalism means the power held by the soldier must be kept in check by a more powerful force that rests in the collective imagination, not in the physical sense. It means the soldier must be guided by these rules, norms and taboos that are created by society’s collective imagination; it’s collective beliefs in what is right or wrong.
The soldier must see the Constitution as a sacred text and say, “I must respect this document because it is sacred”. He must believe in human rights and say, “I cannot break these fundamental rights and freedoms rights because they are sacred”. He must look at a civilian politician and say “Even though I have the gun and he only has a pen, and although I have more lethal force, I must exercise forbearance and respect him or her because it is the right thing to do”. He must consider the electoral process and say, “Although I have the power of the gun, and can do whatever I want, society is better off when the ballot box decides political leadership”.
If the soldier decides to do the opposite, it is militarism and therefore, unrestrained power. It is the antithesis of constitutional democracy. Regrettably, this is where Zimbabwe is at present and has been for a very long time. The picture on the surface, which mimicks a constitutional democracy, is a mere facade which is highly misleading. It is a retrogressive position from which Zimbabwe must recover if it is to make any progress. This cannot be achieved by cosmetic and choreographed changes controlled by the veiled hand of the military. This was the November 2017 experiment whose outcome has been catastrophic. The country requires a complete departure from militarism to constitutionalism.