I was asked for a legal opinion by a journalist this afternoon over the legality of Zanu PF’s constitutional amendments passed by the Politburo at its most recent meeting this week. The State media reported today that the Politburo, Zanu PF’s executive arm, had adopted the constitutional amendments. In giving my opinion, I have looked at the Zanu PF Constitution and the national Constitution.
However, even before I proceed, let me qualify my opinion by saying that I do not think it matters at all to Zanu PF whether or not their amendments are constitutional. This is a political battle in which the legal requirements is subordinated to the politics and are merely seen as inconveniences that can be overridden to meet the desired political end. Zanu PF has shown over the years that for them, the law is not a restraint on power but an instrument for conferring legitimacy to a desirable course. If the law does not fit, they simply bend it to fit the political ends.
However, even if the legal analysis is of no practical effect in the circumstances, it is still useful for one reason: it shows us that if Zanu PF is willing to act as it has done in respect of its own constitution, then it can do anything to the national constitution if it stands in the way of its political goals and for that reason, the national constitution is at serious risk in the hands of Zanu PF.
My reading of s. 253 on amendments to the Zanu PF Constitution is that it is a process which requires certain procedures to be fulfilled and that, if they were to follow its strict terms, it could not be done in the swift manner in which it has been done in recent days. But the truth is Zanu PF has never been stopped by rules from achieving its aims and I doubt that they will care that they have contravened their own rules. But it shows what they could easily do with the National Constitution, given that they control Parliament.
In terms of s. 253, the power to amend the Constitution is vested in the Central Committee and not in the Politburo. Therefore, to the extent that the amendments have been done by the Politburo, Mujuru could argue that they are ultra vires, that is, that they are beyond the powers of the Politburo and therefore, unlawful.
Secondly, s. 253 provides that while constitutional amendments are done by the Central Committee, such amendments are “subject to ratification by Congress”. In each case, a two thirds majority of the members is required. This means until ratification by Congress, the amendments do not have the force of law. However, I suspect Mujuru would struggle on this one unless she believes the Congress will consist of sufficiently independent members to resist ratification.
A better bet, in my opinion, would be to contend on the first point, that the amendments have not been done by the Central Committee but by the Politburo, which does not have the relevant power to do so. If the said amendments are ultra vires, then they would be unlawful. But her adversaries could still correct this anomaly by simply convening the Central Committee to railroad the amendments, as they have done in the provinces. I doubt that the Central Committee will resist the amendments.
But the best argument would be that the said constitutional amendments are unprocedural. Section 253 of the Zanu PF Constitution sets out a clear procedure in order to effect the constitutional amendments, with timelines which, quite clearly, can no longer be met between now and Congress next week. In this regard s. 253 (4) provides that all proposed amendments must be forwarded to the Secretary for Administration “at least three months before the date of the meeting of the Central Committee at which the amendment is to be considered”. Subsection (5) further provides that the proposed amendments must be circulated to the provinces “at least two months before the date of meeting”.
Now, it is plain that the current amendments have not followed this constitutional procedure. These timelines have not been satisfied and unless there is an overriding provision elsewhere which gives them the power to act as they have done, it means the current amendments were in theory, unprocedural. If she wanted, Mujuru could argue that the amendments are patently unconstitutional, for being unprocedural. It does not have to be Mujuru herself who makes this argument, but an ordinary party member who is aggrieved at the flouting of the Constitution.
I would also add that s. 68 of the new Constitution of Zimbabwe protects the right to fair administrative conduct. Section 68 states that, “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair” It goes further to state in subsection (2) that, “Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct”.
Without getting into much detail, persons who believe that their rights or legitimate expectations have been violated are entitled to seek constitutional protection in terms of the supreme law of the land. Some may argue that Zanu PF is not the State or a public body, but having personally advocated for this right during the constitution-making exercise, I know that it is worded to give it broad scope to apply both to public and private bodies. It was designed to apply as much to persons dealing with private bodies as it does to persons dealing with public bodies.
Mujuru and her allies do have legal options if they wished to resist. The only question is whether there is anyone with the courage to make a challenge and whether they have the energy and capacity to fight. I doubt that they do. Any failure would not be based on the absence of rights but merely a lack of courage to challenge the system or a realisation of the futility of any such action.
In the final analysis, while the legal options do exist, I think at the end of the day, they realise that this is primarily a political and not a legal battle. As such, while they might win a legal battle, it will merely be of a temporary character and probably an attempt to shut the stable when the horses have already bolted. The horses seem to have gone already for Mujuru and whatever legal options she has would not achieve much in this case. If she wants to resist, she would have to do so in the political arena and not in the courts of law.
What may be of interest to Zimbabweans though is the willingness of the ruling party to flagrantly disregard and contravene its own Constitution in order to have its way. If they can do that with their own constitution, what would they do with the national constitution, which they never wanted in the first place – not in its current form, anyway?
By Dr Alex Magaisa.