CONSTITUTIONAL HISTORY OF ZIMBABWE1 Prior to arrival of Settlers Prior to the arrival of British Settlers, Zimbabwe was a multi-ethnic society. The Shangani/Tsonga inhabited the south-eastern parts of the Zimbabwe plateau, the Venda in the south, the Tonga in the north, the Kalanga and Ndebele in the south-west, the Karanga in the southern parts of the plateau, the Zezuru and Korekore in the northern and central parts, and finally, the Manyika and Ndau in the east.2 This territory between the Zambezi and the Limpopo gave birth to a number of great States such as the Great Zimbabwe State, the Mutapa State, the Rozvi State, the Torwa state, and later on the Ndebele State. The most referred to State that flourished on favourable agricultural conditions, trade in minerals and pottery, with the Eastern world i.e. China, India and Middle East is probably the Great Zimbabwe State. Although the Great Zimbabwe State later declined due to food shortages, decline in pastures and natural resources, this allowed other states to rise such as Mutapa State under Mutota. Land was central to the survival of most States as land was used for agricultural purposes as well as the exploitation minerals. For instance, the Rozvi State under Changamire Dombo took advantage of the dry grasslands, low trees and excellent pastureland of Guruuswa, to keep their large heads of cattle, goats and sheep. Crop farming also thrived within the Guruuswa area.3 It is important to note that despite the large States and empires that existed, Zimbabweans later also lived in smaller units that were mainly farming communities that relied on iron to modernise their agriculture. This setup mainly existed among the Shona who had a Chieftainship setup of government with their own public law system to govern their way of life. There was also heavy reliance on livestock as a source of food, draught power and most importantly, livestock was a sign of wealth. These smaller units lived in a communal setup where the land was shared equally among the community.4 Under this system, land was an integral part of their livelihood. Arrival of Settlers- Berlin Conference The influence of white settlers in Africa began prior to their arrival on to the Continent. For instance, prior to 1890, Britain had always regarded the current territory of Zimbabwe as been under their sphere of influence. In order to legitimise their control or influence over Zimbabwe, a need arose to create a legal instrument in the form of the Berlin Act that sought to partition Africa among European Nations with Britain gaining control over Zimbabwe along with other territories in Africa. However, after having seized the territory now Zimbabwe, the British Gvt on the one hand did not want to incur/ commit new political and financial resources to the conquered territory i.e. they did not want to be directly involved in the operations of the territory. On the other hand, the British Gvt still wanted some form of control over the territory. To facilitate the administration of the territory, the Crown (British Gvt) gave a Charted Company in the form of British South Africa Company (BSAC) express authority to administer the territory on Britains behalf. The driving force

1 G. Linington, Constitutional Law of Zimbabwe, p 1- provides summary for Zimbabwean Constitutional History

2 http://www.zim.gov.zw/index.php/zimbabwe-in-brief/history-of-zimbabwe [Accessed 19 May 2012]

3 http://www.zim.gov.zw/index.php/zimbabwe-in-brief/history-of-zimbabwe [Accessed 19 May 2012]

4 This system was even recognised by the settlers and noted in the case of In Re Southern Rhodesia 1911 AC

211 p233

behind the company was Cecil John Rhodes an English politician and entrepreneur. The Charter was to be for a 25-year period. BSAC Charter The Charter covered administrative, legislative and judicial matters. For instance, Article 10 of the Charter mandated the Company to preserve peace, order and or make ordinances to be approved by the British Secretary of State, which allowed for the establishment of a Police Force. In essence, the daily operations of the territory were in the hands of the BSACs Board of Directors with the British Gvt having residual power to override the Boards action. The Charter, it can be argued, gave the BSAC the authority to set up a constitutional government to protect the settlers interests and values at the exclusion of the indigenous people. In Re Southern Rhodesia During the administration of the territory, a legal dispute arose between the Crown and the BSAC over the ownership of the land given to the BSAC to administer. The court in the above matter ruled that the land in Southern Rhodesia vested in the British Government and not the BSA Company. The Privy Council did however order that, the British Government compensate the BSA Company for the past administrative deficits incurred. In Re Southern Rhodesia is an important case in Zimbabwean Constitution history as it heralded the seizing of land from the indigenous black population. One may argue that this case goes to the root of the concept of ownership of the land in Zimbabwe. The case entrenched the rule over the land in Zimbabwe through vesting ownership in the Crown to the exclusion of the indigenous people. The Crown contended that the land belonged to the British Gvt and that the BSA Company was merely the agent administering the land on behalf of the Crown. The indigenous population also contended that they were the original holders of the land and that their right could not be diluted through legislation or court proceeding without their consent. Furthermore, if alienation was to take place without their consent, the land still belonged to them. Hence, if the BSAC held any title, the BSAC was only a trustee of the property with the beneficial interest remaining with the indigenous people and the legal title and right to possession reverting to them whenever the company ceases to administer the territory.5 In fact, one may go as far as stating that the case legitimised the seizing of the land from the original owners. This case is important in Zimbabwean Constitutional history in that it stripped the indigenous people of their land through claiming that indigenous people had no sense of ownership. The case also highlighted some of the perceptions the British Gvt and the BSA Company had of the indigenous people, which they used to their advantage to strip them of their land.6 The case further highlights some interesting perceptions of ownership as exercised by the inhabitants. The court noted that the indigenous people did not have a developed property system in which the notion of separate ownership in land or the alienation of land by a chief or anyone else was foreign to their ideals. This Courts view may be attributed to the fact that the settler government did not understand that land was communal property belonging to the community instead of a single entity. The court also noted that, the estimation of the

5 1911 AC p232

6 For instance, the BSAC perceived the Matebele tribe as not having a developed system of property ownership in which property could be transferred. The notion of separate ownership in land or of alienation of land by the Chief was foreign to their ideas

rights of the aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilised society.7 Hence, it is important to note that given the perception the settler had of indigenous people a majority of the laws promulgated and the government setup sought to further marginalise the indigenous population through segregation and depriving them of property rights, as they believed that blacks did not have a sense of ownership of property. 1923 Constitution In 1923, the territory now named Southern Rhodesia was given limited self governing status. Ultimately, with the creation of a new Gvt, came the need for a new Constitution- The Constitution of 1923. This constitution did not give Southern Rhodesia full powers to govern but provided for the establishment of a responsible Gvt subject to certain limitations of which some were;

Judicial review if procedural safeguards not observed or if laws enacted were beyond the competence of Parliament

Rigidity in many sections as many sections could not be amended by the legislature

Other amendments required the procedural safe guard of a 2/3rds majority with the additional external reservation and assent by the Crown on the UK Gvt advice.

Some of the other features that existed under the 1923 Constitution include;

Legislative Assembly comprising of 30 members from 30 districts

Position of Speaker and Deputy Speaker

Legislative Assembly did not have the power to amend or repeal certain provisions in the Constitution

Monarch had the power to disallow any law the Legislative Assembly passed

The territory did not have a Treaty making powers, but would be consulted in the Crown was to sign a Treaty that affected the colony

The Federation of Rhodesia and Nyasaland In 1953, a federation of Rhodesia and Nyasaland was created. With the creation of the Federation came with it a new Federal Constitution, but the Constitution of Southern

7 1911 AC p 234

Rhodesia was not affected and it continued to apply, although certain government functions now vested with the Federal Gvt. The 1962 Rhodesian Constitution Around the late 1950s Gvt of Southern Rhodesia felt the need to revisit the 1923 Constitution. In 1960, a Constitutional Conference was held, in which the British Secretary of State for Common Wealth States insisted for a new Constitution that advanced the Political Rights of Africans due to the rise African Nationalism and African resistance to white minority rule. The resultant Constitution from the Conference was the 1961 Constitution which gave Southern Rhodesia a larger degree of self governance as compared to the 1923 Constitution although the Crown retained the right to amend, revoke or suspend the Constitution. Among other features, the Constitution created a justiciable declaration of rights. However, despite the 1961 Constitution showing greater improvement from its predecessor, it still did not cater for the right of Africans who constituted the vast majority of the population. The early 1960s witnessed the growing tension by African National Leaders against the oppressive racist laws and defiance of racially constructed laws. The Unilateral Declaration of Independence The general election of 1962 saw the rise of the right wing political party called the Rhodesian Front led through Mr. Field. The Rhodesian Front largely opposed the principle of majority rule. The Rhodesian Front tried to push Britain for full self-governance. The British Gvt through their Labour Party informed S.R that independence from Britain would only be granted upon certain conditions being met. These conditions later became to be known as NIBMAR = No Independence Before Majority Rule. The new Prime Minister, Ian Smith, who had succeeded Field in 1964, was not willing to accept the NIBMAR terms despite efforts through negotiations from the British Gvt. On November 5, 1965, the Rhodesian Regime declared a State of Emergency, which later was followed by the Universal Declaration of Independence on 11 November 1965. The effect of UDI of 1965 was that it removed all residual power the British Gvt had over Southern Rhodesia. The new regime also removed the Declaration of Rights, which was a prominent feature under the 1961 Constitution. The British Gvt was outraged by the actions of the Smith regime and the Queen dismissed Smith and his Ministers from office. The British Gvt also introduced the Southern Rhodesia Act, which sort to reinforce the British Gvts control over Southern Rhodesia and declared any act done by the Smith regime as being void as the acts did not comply with the directives of the British Gvt. The British Gvt also passed the Constitutional Order of 1965, which sort to declare any amendments to the Rhodesian Constitution by the Smith regime as being void. The Constitutional Order also sought to prohibit the Rhodesian Legislative Assembly from passing any laws. The British Gvt also sought help from the United Nations in the form of trade embargoes with Southern Rhodesia. On 16 December 1966, the UN Security Council concluded that the situation in Southern Rhodesia constituted a threat to international peace hence member States were instructed to cease trade with Southern Rhodesia in a number of commodities.

The Madzimbamuto v Lardner Burke8 The Madzimbamuto case sort to challenge the legality of U.D.I in the High Court of Southern Rhodesia. The facts were that the applicant Madzimbamuto had been detained on the 5th of November 1965 on an order issued by the Minister of Justice- Lardner-Burke. The Minister was acting under the Emergency Regulations under the Emergency Act that came into force during the declared State of Emergency of 5 November 1965. In terms of the regulation, the State of Emergency would expire after 3 months, on 4 Feb 1966 and could not be lawfully extended without Order in Council. Disregarding the prohibition the Legislative Assembly met and extended the emergency period, which resulted in Madzimbamutos continued detention. The applicant (Madzimbamuto) contended that the continued detention after 4 February 1966 was illegal as it was authorised by unlawful regulations and that the Justice Minister, Lardner-Burke) had been dismissed from office along with Prime Minister Smith and other Cabinet Ministers by the Governor and the Queen. Hence, the Minister of Justice had no power to exercise the regulations. The applicant also argued that, the Emergency Powers Regulations made by the Officer Administering the Gvt (New post created under the 1965 Constitution by Smith to replace post of Governor) had been declared invalid and of no force by the British Gvt. Most, importantly the British Gvt had enacted legislation, the Southern Rhodesia Constitutional Oder, which deprived the Southern Rhodesia Legislative Assembly off their law making powers. Given the above legal irregularities, the applicant argued that his continued detention after 4 February 1966 was unlawful. The Minister of Justice argued that the Rhodesian Gvt was de jure the Gvt of the time or alternatively the regime was de facto Gvt at the time since it alone was effective control of the country at the time. On the above basis, the laws of the time were necessary in order to maintain law and order in the country during the State of Emergency. The High Court ruled that, Smiths regime was illegal and that the Constitution and the UDI of 1965 were illegal. However, the court noted that on the doctrine of necessity some legitimacy attached to the emergency laws of 1965. On that basis, Smiths regime was the only effective Gvt at the time and to avoid a gap in the law as well as chaos the court should give effect to the emergency laws based on the doctrine of necessity. The case went on appeal in which the majority of the court upheld the decision of the High Court. The court upheld the argument that although the UDI was illegal the Smith regime was de facto Gvt in control at the time.9 1969 Constitution Prior to 1969 efforts were made through the British Gvt to resolve the UDI impasse but to no avail. In 1969 a new Constitution was introduced which changed the office of Officer Administering Gvt into a non- executive president who had to act on the advice of his

8 Case reference is, Madzimbamuto v Lardner- Burke 1966 (2) RLR 756 or 1966 (2) S.A 445 (R)

9 For more info on the case please read the full argument of the Appellant Court- Madzimbamuto v Lardner-

Burke and Another 1968 (2) SA 284 (RAD)

ministers. The Constitution provided for a bicameral legislative system consisting of the Senate and House of Assembly The declonization period Constitution Making in the 1950s and 1960s Prior to the Lancaster House Constitutional Conference of 1978, a series of meetings convened by Britain to design a roadmap for and negotiate the terms of an independence constitution for Zimbabwe. Constitutional reform in the country was characterized by a pattern of political exclusion where the Rhodesian government sought to maintain absolute control over the process and leave out major stakeholders. This pattern would result in two failed reform processes. One of these produced the Rhodesian independence constitution in 1965, which was designed by the Rhodesian settler government to prevent decolonization. The result was a 15-year civil war that would precipitate the fall of the settler regime under Ian Smith. The Internal Settlement In 1978, the Smith regime concluded talks with certain African Parties namely the Sithole led ZANU and the Muzorewa party (UANC) and ZUPO led through Chirau. The above parties agreed on a new Constitution the 1979 election that paved way for an election in which Muzorewa won and became Prime Minister. Based on this Muzorewa contended that majority had come to Rhodesia and hence the British Gvt should remove the sanction imposed after UDI and grant Southern Rhodesia independence. However, the British Gvt noted that there had been steps taken in the new Zimbabwe Rhodesia to ensure majority rule, however, this rule in the new country was not real majority rule. The new Constitutional order of Zimbabwe Rhodesia maintained a bicameral house of assembly. The constitution provided for a non- executive president with a prime minister and ministers. The provisions of the constitution were specially entrenched requiring 78 members of the House of Assembly and a two-thirds membership of the Senate. The Lancaster House Conference The aim of this conference was to bring genuine change to Southern Rhodesia. The British Gvt saw it necessary to include all political parties inside or outside Rhodesia including the Smith Regime. Some of the issues discussed during the Conference included, the land issue, free and fair elections, composition of the army, judiciary, police and the position of the white minority. The negotiated document that resulted from the Conference was to be known as the Lancaster House Constitution. From the contents of the constitution, it was clear that the parties involved had to make many concessions to ensure progress. The Lancaster House Agreement was signed between the parties in December 1979, ending the civil war and paving the way for independence. Within a year, independence was granted, elections were held. The Lancaster House Constitution maintained the Bi cameral legislature. The Lancaster House Constitution provided for a justiciable Bill of Rights. A number of provisions were entrenched effectively unable to be amended for several years for instance property rights. A non-executive president was introduced with the executive power vesting in the Prime Minister and Cabinet Ministers.

Independence 1980 at amendments there from The 1980 constitution was a document established through an Act of the British Parliament and given to Zimbabwe rather than a product of an inclusive participatory process. As such, it naturally established the Westminster style system, whose hallmark if the supremacy of the parliament over the executive. Furthermore, the constitution, though designed to end the autocratic and undemocratic rule that prevailed under the Smith regime, preserved two fundamental features of the colonial period: unequal distribution of land ownership between blacks and whites and white dominance. This configuration eventually provided the black majority government with the ammunition to challenge and initiate substantial amendments to the 1980 Charter. To date there have been 19 Constitutional amendments to the Lancaster House Constitution with the most notable being the amendments forming the Inclusive Gvt. Some of the amendments have been necessitated by the need to create a Constitution that reflects the values and opinions of the majority notably the Constitution of Zimbabwe Amendment (No.17) Act signed into law on September 12, 2005 which sought to redress the land imbalances of the past. Such imbalances created through legislation such as the Land Apportionment Act of 1930 and the Land Tenure Act of 1969, which prohibited blacks to own land in white areas. Other notable amendments were the removal of the white seats, removal of the Prime Minister and non-executive Presidency forming an executive President.10 Other amendments have been criticised on the grounds that they were facilitated by the need for power or need to gain more political control as opposed to catering for the will of the people Draft Constitution of 2000 and Kariba Draft Amid the amendments to the Lancaster House Constitution, there were efforts to come up with a new Constitution to govern Zimbabwe. In 1999, a Constitutional Commission of Inquiry was set up to prepare a draft Constitution that was later put to a referendum in 2000. However, the draft Constitution was rejected on the basis that the draft did not reflect the views of the people taken during the public consultation. Furthermore, the draft sought to create a weak legislature, a powerful executive and very modest human rights protection.11 Seven years later, the main political parties, ZANU PF and the two MDCs came together to create a new draft constitution that was named the Kariba Draft after the town in which the document was created. Some of the features of the document were that, it created a very powerful president with powers to unilaterally declare a state of emergency, suspend human rights, dissolve parliament, and appoint all public officials. The Kariba draft was also rejected on the basis that, firstly, it was the product of a very secretive process; based neither on consensus nor public participation. Secondly, the executive structure in place ensured that parliament and the judiciary remained very weak institutions dominated and controlled by the executive.12

10 For more information on Constitutional Amendments, see L. Madhuku 1999 Zimbabwe Law Review 10. The constitution has been amended 19 times in 29 years attached appendix. The copy of this Law Review is also available in the Library. 11

http://www.constitutionnet.org/country/constitutional-history-zimbabwe 12

http://www.constitutionnet.org/country/constitutional-history-zimbabwe

Constitutional developments after Kariba Draft After the harmonised elections, the GNU was formed and part of its mandate was to draft a new Constitution. As part of the Global Political Agreement a new Constitution was to be drafted through stakeholder consultation especially the views of the people. Currently the final draft of the Constitution has been made public and is subject to review pending a possible referendum. The current Draft Constitution has fundamental changes from the Lancaster House Constitution especially in the area of fundamental human rights as it also incorporate socio economic and cultural rights.