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Zimbabwe’s New Constitution

Richard Albert, Boston College Law School

Zimbabweans will vote to approve a new constitution on Saturday. Drafting a new constitution was a condition of the 2008 coalition formed between political rivals President Robert Mugabe and Prime Minister Morgan Tsvangirai.

The draft constitution is the product of a 25-member committee on which all three political parties are represented. In light of its support from both Mugabe and Tsvangirai, the draft constitution is expected to win approval on Saturday.

The draft constitution is substantially different from the current constitution, which has been in force since 1980. Here are a few of those differences.

All citations to the draft constitution are designated “DC” while “CC” refers to the current constitution.

Presidential Term-Limits: The draft constitution sets a two-term limit for the president, with a single term lasting five years. In contrast, under the current constitution a single term lasts six years and there are no limits on the number of terms a president can serve. (Compare DC ch. 5, pt. II, art. 95, with CC ch. IV, pt. I, art. 29)

Judicial Appointments: The draft constitution authorizes the president to appoint all judges but appointments must be made from a list of nominees compiled by the Judicial Service Commission. The current constitution requires the president only to consult with the Judicial Service Commission; the president may reject the advice of the Commission. (Compare DC ch. 8, pt. II, art. 180, with CC ch. VII, art. 84)

Judicial Interpretation: The draft constitution includes a provision similar to Section 39 of South Africa’s Constitution. The draft constitution states that the judiciary and other bodies “must take into account international law” and “may consider relevant foreign law” when interpreting fundamental freedoms and human rights. The current constitution contains no such instruction to the judiciary or other bodies. (Compare DC ch. 4, pt. I, art. 46, with CC ch. III, art. 11 and CC ch. VIII)

International law: The draft constitution requires Zimbabwe to incorporate into its domestic law all international conventions, treaties and agreements to which Zimbabwe is a party. In contrast, the current constitution gives Zimbabwe the discretion to choose whether to incorporate them into law. (Compare DC ch. 2, art. 34, with CC ch. XII, art. 111B)

Other: The draft constitution includes several provisions worthy of note, including a prohibition on same-sex marriage (DC ch. 4, pt. II, art. 78(3)), a requirement of independent electoral redistricting (DC ch. 7, pt. III, art. 161), as well as limits on debt and public borrowing (DC ch. 17, pt. I, art. 300). The draft constitution also establishes independent agencies for elections (DC ch. 12, pt. II, arts. 238-41), human rights (DC ch. 12, pt. II, arts. 242-44), gender (DC ch. 12, pt. II, arts. 245-47), and media (DC ch. 12, pt. II, arts. 248-50). The draft constitution also creates a National Peace and Reconciliation Commission (DC ch. 12, pt. II, arts. 251-53) as well as an Anti-Corruption Commission (DC ch. 13, pt. I, arts. 254-57).

Despite the international interest in Saturday’s vote, Zimbabwe has prohibited the United States and the European Union from sending observers. Zimbabwe’s Foreign Minister, Simbarashe Mumbengegwi, has expressed doubts about the objectivity of western observers: “To be an observer, you have to be objective and once you impose sanctions on one party, your objectivity goes up in smoke.” Mumbengegwi added: “I do not see why they need to be invited when they have never invited us to monitor theirs.”

The African Union has been invited to observe the vote.

Suggested Citation: Richard Albert, Zimbabwe’s New Constitution, Int’l J. Const. L. Blog, March 11, 2013, available at: http://www.iconnectblog.com/2013/03/zimbabwes-new-constitution.

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Published on March 11, 2013
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3 Responses

  1. Ran Hirschl

    Thanks, Richard. A concise and illuminating post. Could you clarify what would be the start date of the two-term limit? Mugabe has been in power since 1980 and is nearing the age of 90. I recall roughly similar issues were raised a few years ago with respect to the new constitution of Uganda, as it was not clear what would count as the first term for president Museveni who has been in power since the late-1980s. If the count in Zimbabwe begins with Mugabe’s current term (2008?) or next, there is a chance Zimbabwe ends up having a president that is 95 or even 100 years young …

    Ran

  2. Thanks for your comment, Ran.

    It seems from my reading that the two-term limit takes effect only when the constitution comes into force. Any prior service as president would not count against the two-term limit. This includes Mugabe’s current presidential term in coalition with Tsvangirai as well as all previous terms he has served. So, yes, under this draft constitution, it is possible that Mugabe could be president for ten more years until he hits the century mark in age, assuming he is reelected after five years and his health holds up.

    As a matter of constitutional design, my preliminary thought is that the draft constitution’s two-term limit is correct and fair both in: (1) not applying retroactively to the current president; but also (2) applying prospectively to the current president.

    On this point, Zimbabwe’s draft constitution differs from the United States Constitution’s 22nd Amendment, which introduced a two-term limit for presidents. The 22nd Amendment expressly exempted the sitting president (Harry Truman) from the two-term limit, making him eligible to serve indefinitely had he continued to run and win reelection.

  3. Just to follow up on this, yesterday Zimbabwe’s electoral commission reported that 94.5 percent of voters approved the new constitution. Less than 50 percent of the voting population participated, however. For more, see these reports: (1) http://www.washingtonpost.com/world/africa/zimbabwe-referendum-on-new-constitution-passes-with-945-percent-of-the-vote/2013/03/19/079055ec-90a2-11e2-9173-7f87cda73b49_story.html (English); and (2) http://www.radio-canada.ca/nouvelles/International/2013/03/19/013-zimbabwe-constitution-acceptee.shtml (French).

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