An analysis of the doctrine of constitutionalism in the Zimbabwean Constitution of 2013

• Author: Peacemore Talent Mhodi
• DOI: 10.10520/EJC153135
• Published date: 01 January 2013
• Date: 01 January 2013
• Pages: 383-397
• publishedBy: UNISA Press

An analysis of the doctrine of constitu-

tionalism inthe Zimbabwean Constitution

of 2013

Peacemore Talent Mhodi*

Abstract

On 2 2 Augus t 2013 the n ew Con stitutio n of Zim babwe w holly ca me into fo rce. Th e

Con stitutio n c ontain s s ome idea s w hich are a step tow ards ens uring tha t th e c ountry

mo ves o ut of t he po litical d oldrum s. It provid es fo r the doctrin e of sepa ration of po wers,

lim its on term s o f offic e, ind epend ence of the jud iciary and institu tions tha t fost er

dem ocra cy. In s o doin g it ins pires hope that Z imbab we wil l break the m ould of cou ntries

that have c onsti tutions but no cons titution alism. Howe ver, th ese gai ns are threate ned b y

the existe nce o f an execu tive p reside nt wh ose p owers have rema ined unch ange d. Th e

Con stitutio n con tradict s itself in that it un derm ines th e indep enden ce of the jud iciary, t he

ver y heartb eat of a constit utiona l demo cracy, b y besto wing on the pre sident wide power s

to app oint and r emov e judges . Thus , t he balan ce of pow er being w eighte d in favour o f one

arm of g overnm ent t o the d etrim ent of cons titutiona lism is a sig nifica nt risk .

1 Introduction

Zimbabwe achieved independence in 1980 alongside the Lancaster House

Constitution. This Constitution has been amended a record nineteen times. With

hindsight some of the amendments were inescapable and therefore necessary.1

However, other amendments were repugnant to constitutionalism in Zimbabwe.2

In a desire to ensure that Zimbabwe produces an autochthonous constitution

which will end the political doldrums that the country has been facing, a Global

LLB, LLM (UKZN). This article is an excerpt of the author’s LLM dis sertation submitted to the

*

University of KwaZulu Natal in 2013. My thanks to my co-supervisors Professor Karthy Govender

and Ms Lee Stone for comments and discussion.

Ncube and Nzombe ‘The constitutional Reconstruc tion of Zimbabwe: Much ado about nothing?’

1

(1987) 5 The Zimbabwe LR 1 at 8.

For example, Constitution of Zimbabwe Amendment (no 17) Act, 2005, which introduced s 16B,

2

a provision that ousts the jurisdiction of the cou rts insofar as the constitutionality of the expropriation

of land by the Government of Zimbabwe is concerned.