By Arnold Tsunga
Tuesday 7 July is a historically significant day in Zimbabwe as a constitution that was voted by over 94% of people voting in a referendum in 2013 is amended by Parliament and the President without a referendum.
This issue will remain a sticky issue for a long time to come in Zimbabwe given historical, constitutional and political considerations.
Historically, the liberation struggle was anchored primarily on the concept of one man (person), one vote. Thousands and thousands of people died for Zimbabwe to achieve this right. It has now just been wiped away for the election of the President. Just like that.
Constitutionally, section 67 which is part of the bill of rights provides that every Zimbabwean citizen has a right to free, fair, and regular elections for any elective public office established in terms of the Constitution.
This right to vote for a President as an elective public office has been taken away without a referendum as required by the constitution/law. Is this permissible legally? The answer to this question may lie with the Constitutional Court.
Politically the constitution was made by the people of Zimbabwe starting with “We the people of Zimbabwe” in the Preamble. This raises the question of sovereignty and legitimacy arising from the authority of the people. There will be strong arguments whether Parliament and the President as delegated authority from “We the people of Zimbabwe” can have authority to change the fundamental constitutional design without the express authority of the people in a referendum.
This conduct could be seen as political overreach by people who are in conflict of interest (Parliament and President) as they are all beneficiaries of the amendments without subjecting the process to the consent of the sovereign, “we the people”.
Certainly there is a likelihood of conflictual outcomes arising from the fact that there are no easy answers to these and much more questions that many Zimbabweans are asking themselves.
About the Author
Arnold Tsunga is a senior executive, lawyer and governance expert. He is the Principal Managing Partner at Tsunga Bamu Law International (TBLI) and Senior Policy and Legal Adviser at the Africa Judges and Jurists Forum (AJJF). He writes in his personal capacity.
