A serious contempt of the supreme law

On February 14, 2016, The Sunday Mail carried an article: No alignment required, promulgate the laws. It was encouraging to get such a witness in the house. The author of this and other Come aboard Series discourses has always put his foot down in arguing that all provisions of the Constitution became binding on the day the Supreme law was assented to by the State president, unless for the provisions whereby the Act is specific about them being held in abeyance.

The Constitution is so clear in its provisions relating to its applicability and bindingness. Ambiguity is in the minds of those who benefit from the continued non-application of some provisions of the Supreme law.

Applicability of the Constitution started on the date of enactment by the State President and Parliament of Zimbabwe. The short Constitution (Act) Page 1 Section 3(2)(a) provides: “For the avoidance of doubt, it is declared that: The new Constitution is enacted on the publication day as defined in the sixth schedule to that Constitution,” that is to say on the date on which this Act is published in the Gazette in accordance with Section 51(5) of the existing Constitution

PARLIAMENT-BUILDING

The new Constitution was gazetted on May 22, 2013 which then became the date of enactment of the Supreme Law, thus becoming the date of its application. Some schools of thought argue in favour of promulgating the redundancy or invalidity of provisions in some Acts that militate against the new Constitution. The nation cannot be bogged down by semantics. Promulgation simply means to make known, to disseminate, promote or proclaim. On the other hand, aligning refers to bringing into line or into agreement or alignment.

The route to deal with the repugnant Acts should in no way interfere with the application and binding nature of the Constitution.

Two avenues provide themselves as remedy to this fatal infringement on citizens’ constitutional rights.

Secondly, a physical or legal person can take up the issue with the ConCourt for redress of the cited infringement. Ultimately, Parliament is the watchdog charged with the responsibility of seeing to it that compliance of enacted laws is adhered to.

The following provision of the Constitution cry out for fulfilment.

Supremacy of the Constitution

Section 2(1)(2) is very clear on the Supremacy of the Constitution above any law, practice, custom or conduct inconsistent with it. It is invalid to the extent of its invalidity.

The obligations imposed by the Constitution are binding and every person, natural, or juristic, including the State and all Executive, legislature and judicial institutions and agencies of government at every level and must be fulfilled by them.

In the circumstances, the continued existence of Acts that are contrary to the Constitution is actually in contempt of the Supreme law. Accountability and responsibility for no action in this regard lies with all the hierarchy within the corridors of power, namely the Executive, Legislature and Judicial pillars of the State. The ConCourt needs not wait for being approached on the unconstitutionality of perpetuating laws that were outlawed on May 22, 2013. Of course, the other route would be for some legal or physical person to challenge the said contempt of the constitutional provisions by the powers that be.

Founding values and principles

Section 3(1)(a)(c)(d) talks about the supremacy of the Constitution, fundamental human rights, recognition of the nation’s diverse cultural religious and traditional values. The supremacy of the Constitution has been ignored, fundamental rights provided for not recognised, cultural, traditional and religious values undermined. A good example is imposing one language above another, especially in schools.

Languages

Section 6(3)(a+b)(4). The State and its institutions and agencies of government at every level must: ensure that all officially recognised languages are treated equitably and

●Take into account the language preferences of people affected by governmental measures or communication. In addition, the State must promote and advance the use of all languages used in Zimbabwe, including sign language and must create conditions for the development of those languages. In terms of Section 6(1) of the Constitution, the following languages are officially recognised in Zimbabwe, Chewa, Chebarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, Sign language, Sotho, Tonga, Tswana, Venda and Xhosa.

National unity, peace and stability

Section 10 provides that the State and every person, including juristic persons and every institution and agency of government at every level, must promote national unity, peace and stability. There is so much recklessness currently going on that may trigger unrest — action is needed now.

National development

Section 13(1)(d)(2)(4). The State and its agencies at every level must endeavour to facilitate rapid and equitable development and in particular take measures to:
●Bring about balanced development of the different areas of Zimbabwe in particular a proper balance in the development of rural and urban areas
●Involve the people in the formulation and implementation of development plans and programmes that affected them
●Ensure that local communities benefit from the resources in their areas, for example, the Chiadzwa diamonds and timber and ethanol deposits in Lupane.

Empowerment and employment creation

Section 14(2). The State with all its institutions must ensure that appropriate and adequate measures are undertaken to create employment for all Zimbabweans. The nation is eagerly awaiting the promised two million jobs. Instead, we witness job losses, the productivity linked wages, the liberalisation of the labour market and unilateral salary cuts and terminations on notice to name a few.

Food security

Section 15 (a-c) the State must:
●Encourage people to grow and store adequate food
●Secure the establishment of adequate food reserves and
●Encourage and promote adequate and proper nutrition through mass education and other appropriate means
Hand outs are not the answer, neither are controlled prices for produce

Culture

Section 16. The State and all its institutions and agencies of government at every level, must promote and preserve cultural values and practices which enhance the dignity, well being and equality of Zimbabweans. We are united in diversity and this cross pollination is the spice for peace and development.
Representation

Section 18(1)(2). The State must promote the fair representation of all Zimbabwean regions, in all institutions and agencies of government at

every level. In addition, practical measures must be taken to ensure that all local communities have equitable access to resources, as a means of promoting their development. Somebody with nothing is destructive, as he has nothing to lose from that destruction.

Children

Section 19(2)(b). The State must adopt reasonable policies and measures, within the limits of resources available to it, to ensure that children have shelter and basic nutrition, healthcare and social services.

Work and labour relations

Section 24 (2)(a-b). The State and all its institutions and agencies of government at every level must endeavour to secure:-
●Full employment

●Remove all restrictions that unnecessarily inhibit or prevent people from working and otherwise engaging in gainful economic activities
Borrowing from the principle on the employer and employee duties, – it is the government’s duty to provide its citizens/ voters with work. On the other hand, it is the citizens’ duty to support government by providing individual labour.

Right to personal security

Section 52(a) Every person has the right to bodily and psychological integrity, which includes freedom from all forms of violence from public or private sources — the prevailing uncertainty both in the political and economic spheres, is threatening citizens’ personal securities and as such not to be permitted.

Equality and non discrimination

Section 56(1)(3). All persons are equal before the law and have the right to equal protection and benefit of the law.

Every person has the right not to be treated in an unfairly discriminatory manner, on such grounds as their naturality, race, colour, tribe, place of birth, ethnicity or social origin, language, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability, economic or social status or whether they were born in or out of wedlock.

Role of Parliament

Section 119(1)(2)(3). Parliament must protect the Constitution and promote democratic governance in Zimbabwe.

Parliament has power to ensure that the provisions of this Constitution are upheld and that the State and all its institutions and agencies of government at every level, act constitutionally and in the national interest.

For purposes of Subsection (2) all institutions and agencies of the State and government at every level are accountable to Parliament. Therefore, failure to implement some provisions of the Constitution lies at Parliament’s doorstep. Are parliamentarians aware of this awesome task resting on their shoulders?

Devolution of governmental powers and responsibilities

Section 264(1)(2)(a-f). The first two words of subsection (1), “Whenever appropriate” who decides on the appropriateness?

This is a clear indication that the drafters of this Subsection did so with forked tongues. Despite the said set back, this section provides for :-
●Devolving powers and responsibilities to provincial and metropolitan councils and local authorities.

The objectives for devolving powers and responsibilities are :-
●To give powers of local governance to the people and enhance their participation in the exercise of powers of the State and in making decisions affecting them — (no representation no taxation)

●To promote democratic, effective, transparent, accountable and coherent governance in Zimbabwe as a whole
●To preserve and foster for peace, national unity and indivisibility of Zimbabwe
●To recognise the right of communities to manage their own affairs and to further their developments (addressing marginalisation)
●To ensure the equitable sharing of local and national resources and
●To transfer responsibilities and resources from the national government in order to establish a sound financial base for each provincial and metropolitan, council and local authority.

Given the acrimony over perceived or real marginalisation of some provinces, one would have expected this Section of the Constitution to have been prioritised.

The list of provisions of the Constitution that cry for salvaging is long. However, for purposes of this article, the author will call it a day for today. Time permitting, the issue will be taken up again at some convenient time.

On May 22, 2013, the Supreme law was enacted by being gazetted — two years and eight months ago, yet the provisions of the Constitution have not been fully complied with. Parliamentarians, the ball is in your court — so shoot into the goal, if you still harbour ambitions for being elected in 2018.

●Moses Tsimukeni Mahlangu writes in his own capacity and can be reached on zucwuhq@gmail.com for comments

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