In early June 1996, the Tanzania Chapter of the Society for International Development (TSID) organised a panel discussion to debate that country’s present constitution.
Participants looked at issues such as proposals for a new constitution, and the sanctity of the legal system in fostering constitutional rights. The jury is still out as to the impact of the debate on Tanzanian politics.
In Zambia, President Frederick Chiluba’s ruling Movement for Multiparty Democracy (MMD) made a u-turn on the issue of democracy by amending the constitution to bar second generation Zambians born to foreign parents from standing for high office. The constitutional amendment is mainly targeted at thwarting former Zambian leader Kenneth Kaunda’s re-election prospects. Kaunda’s parents were originally from Malawi.
The Zambian constitutional amendment has been seen as vindictive rather than a desire to ensure a more democratic system of governance. A Zambian columnist has described the adoption of the amendment as the making of “bad history”.
“A political party that is capable of using parliament to support partisan political programmes that are by the same means crystallised into the most supremelaw of the land is sick,” says Kabwe Kasoma of The Post newspaper.
He adds that a constitution is the most scared law of the land and should be capable of protecting the interests of all citizens and not just the interests of a ruling party anxious to stay in power even against the wishes of the people.
Zambian opposition parties have promised demonstrations and violence unless Chiluba’s government scraps the amendment. But the Zambian leader has refused to budge. Even threats by donors to close the development aid tap have failed to convince Chiluba from signing the controversial amendment into law.
The tense atmosphere created by Zambia’s constitutional amendment has raised concerns among other SADC countries, resulting in Botswana President and SADC chairman, Sir Ketumile Masire, calling for a summit to discuss the issue.
Further south, South Africa continued with historic changes that have characterised that country’s politics in the 1990s since the release of Nelson Mandela and the first democratic elections in 1994.
In May 1996, South Africa approved a new constitution, replacing the interim one which brought about Mandela’s African National Congress (ANC) to power in 1994.
“This is our national soul, our compact with one another as citizens, underpinned by our highest aspirations and deepest apprehensions,” said Mandela of the South Africa’s new body of fundamental principles of governance.
The adoption of the new South African constitution was not without its own casualties. The most significant was the much touted Government of National Unity (GNU), which from July 1996 loses one of its major players — Frederick W. de KIerk’s National Party – which is leaving to be in opposition.
The NP’s decision was brought about by its failure to influence clauses referring to property rights, the right of employers to lock out workers and language to be used in education.
The country which appears to have the dubious record of introducing more constitutional amendments in one-and-half decades than any other in the region is Zimbabwe.
With 13 amendments already passed, the 14th is already being debated. Were it not for its discriminatory nature, the amendment — which seeks to regulate the residence of foreigners married to Zimbabweans — could have been passed several months ago.
It was, however, delayed after women’s rights lobbyists panned the government’s attempt to make it more difficult for husbands of Zimbabwean women to be residents. Wives of Zimbabwean nationals did not face similar stringent measures in the original draft constitutional amendment.
The fact that the lobbyists forced the government to backtrack on the original draft reflects civic society’s new watchdog role over constitutional matters and government’s willingness to widen public participation in such issues.
Previous constitutional amendments in Zimbabwe were designed to abolish special privileges which were guaranteed for white Zimbabweans by the Lancaster House-brokered constitution which ushered Zimbabwean independence in 1980.
Other constitutional amendments included the abolishment of a bicameral parliament and replacing it with a unicameral one, the introduction of the executive presidency and elimination of the separation between the head of state and head of government. Parliament rather than the public at large was behind these amendments.
‘To amend the constitution every year as if it was an ordinary law and to do so mainly to reverse the interpretations of the courts about the meaning of its provisions is not only dangerous for our freedoms and liberties but undermines and devalues the constitution thereby robbing it of both its ideological and substantive legitimacy and efficacy as the fundamental thesis expressing the principles upon which we are governed as a people and a nation,” says University of Zimbabwe law lecturer, Prof. WeIshman Ncube.
Despite its record number of constitutional changes, the opposition in Zimbabwe would like to see more fundamental changes, arguing that the current arrangement of governance was heavily stacked against them. They are pushing for a constitutional conference to involve all stakeholders not just the ruling party and parliament in which it holds a majority.
In Swaziland, mounting militancy from the opposition has seen King Mswati III concede to popular pressure to restore constitutional rule abolished by his father — King Sobhuza — in 1973. The suspension of the constitution resulted, among other things, in the banning of political parties in the country.
“We did have a constitution in the country and we will work to revive it,” Mswati has said. The irony of his statement is that Mswati did not announce this to his people, but to a visiting British government official.
Aware of the rising tide both at home and the SADC region against the continued non-existence of constitutional rule in Swaziland, Mswati acknowledged to Botswana and South Africa a few months later the need to repeal the infamous decree.
“I cannot do things on my own without getting the views of the people,” says Mswati. “If the people say the decree must go, it will definitely go but at the moment, I cannot say or order it to be replaced on my own.”
Civic leaders in Swaziland say reviving the 1968 constitution, suspended by the 1973 decree is not enough as parts of it are now outdated and irrelevant to the present political climate.
“There is nothing to lose but everything to gain in reintroducing a constitution similar to that of 1968,” says Times of Swaziland journalist Sam Malale.
The constitutional change debate is certain to dominate southern African politics for many years to come, but it is important for politicians, civic society and political scientists to keep the issue in perspective.
In the words of Nyerere: “There is no perfect constitution in the world; in practice all reveal their drawbacks and give rise to disputes even when they are all products of a country’s long history, and have been subject to amendments and reinterpretation throughout. “(SARDC)
