“Must Laws be aligned to the Constitution? The answer is both “Yes” and “No”. We shall first look at why we say No, under the heading the Supremacy of the Constitution. We shall then examine the arguments for saying “Yes they do have to be aligned,” wrote Veritas.
“The reason why laws do not necessarily have to be aligned with the Constitution is that the Constitution is the supreme law. Any statute or part of a statute [whether it is old or new] that is inconsistent with the Constitution is void and has no legal effect. In other words it is not a law.”
Veritas went on to give three reasons why there is the need to realign the law to the new constitution:
1. Alignment is part of the process of implementing the Constitution.
2. Unaligned laws are difficult to apply
3. Alignment involves enacting new laws as well as amending existing ones
The article is excellent and very informative, however it did not address the most important question as far as the nation is concerned.
Will the new constitution deliver and guarantee all our freedoms and basic human rights including the right to free, fair and credible elections and the right to life? This is a very relevant question in the light of National Electoral Reform Agenda (NERA) which Morgan Tsvangirai and many other have been calling for.
The argument here is that the new constitution is weak and feeble to deliver the freedoms and rights. And we know why, it was “dictated” by Mugabe as Zanu PF MP Paul Mangwana, who was the co-chairperson of the parliamentary committee that drafted the new constitution, boasted soon after the referendum approving the document.
If the supreme law of the land is weak and feeble, even if all existing and new laws are passed and diligently alignment to it, will never deliver the freedoms and rights by virtue of its inherent weakness.
In his book, The Struggle Continues 50 Years of Tyranny in Zimbabwe, David Coltart admits that the new constitution gives the State President “excessive powers without the usual democratic checks and balances”. When know we have a ruthless tyrant in State House right now who does not need any encouragement to abuse those excessive powers.
Whilst Section 206 of the new constitution gives the usual platitudes about protecting individual freedoms and rights these are all taken away sections 209, for example.
“206 National security.
1. The national security objectives of Zimbabwe must reflect the resolve of Zimbabweans to live as equals in liberty, peace and harmony, free from fear, and in prosperity.
2. The national security of Zimbabwe must be secured in compliance with this constitution and the law.
3. In particular, the protection of the national security must be pursued with the utmost respect for –
a The fundamental rights and freedoms and the democratic values and principles enshrined in this constitution: and
b The rule of law.”
“209 National Security Council
1 There is a National Security Council consisting of the President as chairperson, the VP and such Ministers and members of the security services and other persons as may be determined in an Act of Parliament.
2 The functions of the National Security Council are –
a To develop the national security policy for Zimbabwe;
b To inform and advise the President on matters relating to national security: and
c Any other functions that may be prescribed in an Act of Parliament”
We know that one of the regime’s current security policy is that the Police must be advised in advance of all public gathering and they will not grant clearance if public security is likely to be compromised. President Mugabe has in the past accused his political opponents of working with the West as “regime change agents” and we know from Police Commissioner Augustine Chihuri’s doctorate thesis that the Police have treated these opponents as criminals and not political opposition members in a multiparty democracy.
All these security policies will have been developed in accordance with Section 209, 2) and b) above and therefore are legal and lawful. The practical implementation of the policies would be to deny the opposition parties the right to protest or worse.
It is true that the opposition have often successfully challenged the Police ban in a Constitutional Court but because the judgement is on a case by case basis, the obnoxious security policies have remained. The new constitution does not give parliament or anyone other public body any power to challenge, much less discipline, the Police Commissioner’s blatant partisan application of the security policies.
“Perhaps the Speaker could issue a statement calling on the Government to carry out its duty towards the people of Zimbabwe by accelerating the alignment of our laws, thereby making the Constitution an effective, living document,” concluded Veritas.
“The Constitution took years of resources and manpower in its making. If is not properly and timeously implemented all this effort will have been not only a waste of time but a deception and fraud perpetrated on the people of Zimbabwe and the international community.”
The people of Zimbabwe voted in droves to approve the new constitution in the March 2013 referendum on the basis of MDC leaders’ repeated assurance that it was the democratic constitution guaranteed to deliver all their freedoms and rights. It failed it very first test, it failed to deliver free, fair and credible elections in July 2013.
Morgan Tsvangirai & co. has since the rigged July 2013 elections that the nation will finally have all their freedoms and human rights including the right to free and fair elections if electoral reforms are implemented.
The accepted wisdom before the 2013 elections was that MDC should implement the wide ranging democratic reforms agreed in the 2008 GPA as contrast to the wishy-wash NERA Tsvangirai is calling for.
Yes it is true that the new Constitution took years of resources and manpower in its making. But before we waste even more resources and manpower in implementing it; are we 100% sure it will deliver the freedoms and human rights we want.
Morgan Tsvangirai lied to the people of Zimbabwe that the new constitution would deliver their freedom and basic human rights including free, fair and credible elections. We must not compound that lie by another lie that realigning existing laws and writing some new laws in line with this weak and feeble constitution will, somehow, take away the State President’s excessive powers, created the lacking democratic checks and balances, etc.
For the last 37 years Zimbabwe has blundered from pillar to post which is why Zimbabweans are today the poorest people in Africa. Nearly US$100 million and God knows how many man-years were spent writing the new constitution. The very least we can do now is to admit that it was just another criminal waste of resources and stop adding insult to injury by lying to the people and giving them false hope!