By Thomas Madhuku
Rewind to August 2013, Zanu PF has just won the harmonised elections with a resounding victory. A ceremony is held where President Mugabe and Joice Mujuru take oath of office. According to section 129(c) of the constitution, by virtue of her assuming the vice President’s position, Mujuru’s Mt Darwin West parliamentary seat should be declared vacant.
A year down the line, Mujuru and her ‘Gamatox’ faction fall out of favour with the President and the country is suddenly alerted that her Mt Darwin West parliamentary should have been vacant soon after her assumption of the position of vice president of the republic of Zimbabwe in 2013.
The above story could be a deep reflection of the situation obtaining in Zimbabwe as a lot of constitutional provisions have not been implemented due to what constitutional law experts labelled lack of political will and conflict of interest.
A quick scan into provisions of the constitution that have not been implemented includes section 140 which compels the president to address a joint sitting of parliament on the state of the nation at least once a year, and section 268 which also deals with the establishment of metropolitan and provincial councils among others.
Another topical issue that has often attracted widespread debate is the issue of spot fines charged by traffic police at road blocks. Police officers have wilfully continued to ignore a 2012 court ruling by continuing to force motorists to pay spot fines.
Justice Francis Bere while officially opening the Masvingo judicial year reinforced that police were in contempt of court for insisting on spot fines as well as impounding vehicles but the government through vice President Emerson Mnangagwa came to the defence of police saying spot fines were made “to ease the administrative processes in the payment of the fines for travelling motorists.”
Bulawayo based constitutional law expert David Coltart said it wasn’t surprising that a lot of provisions in the new constitution had not been implemented because Zanu PF was not forthcoming when it comes to realigning the constitution.
“ZANU PF didn’t like many of the Constitutional provisions and so it is not surprising that they have dragged their feet on the alignment process,” Coltart said.
He appealed to citizens to petition the constitutional court to issue orders that compel the government to act in accordance with the new constitution.
A constitutional law expert, Alex Magaisa, who is based in the United Kingdom, said the country needed an implementation phase soon after the adoption of the new constitution in 2013.
“We needed an implementation phase as they have done in Kenya, we never had the time to allow for proper implementation of the constitution,” Magaisa said.
He added that the current constitution is a compromise document where the three parties involved in the process had different and diverging views hence the lack of political will to implement certain provisions by the present government.
“MDC-T had things they wanted, MDC had things they wanted and Zanu PF also had things they wanted, likewise all the three political parties had things they did not want. Now considering that the ruling party had things they did not want in the constitution, they have no incentive to implement certain provisions including the issue of devolution which should have come into effect soon after the adoption of the constitution in 2013,” said Magaisa.
Magaisa however challenged the notion that implementation of the constitution rests n the legislative realignment.
“Section 2.1 makes it very clear that any laws which are inconsistent with the constitution are invalid to the extent of the inconsistency,” added Magaisa.
Prominent lawyer, Jonathan Samkange said lack of funds could be the reason that is standing in the way of the government to fully implement the new constitution and the realignment process.
“The government has no funds and is struggling to pay civil servants, the international community should chip in and assist or anyone who is concerned should put up some money towards the realignment process,” Samkange said.
Jessie Majome who was part of the Parliamentary Constitutional Committee (COPAC) process said her assessment points to the fact that only 30 percent of the constitution has been implemented with the rest being in limbo.
She highlighted a number of provisions of the constitution that have not been implemented by the government.
“Section 107 makes it obligatory for the Vice Presidents, Ministers and Deputy Ministers to attend parliament and parliamentary committees to answer questions concerning matters for which they are collectively or individually responsible but they don’t bother,” Majome said.
Both Speaker of parliament Jacob Mudenda and President of Senate Edna Madzongwe have issued warnings to ministers to attend parliament question and answer sessions.
She added that according to section 114 of the constitution which deals with the appointment of Attorney General, the President was supposed to appoint the new AG after Johannes Tomana was appointed the Prosecutor General in 2013.
But the Attorney-General Prince Machaya was only appointed In February this year.
”Section 140(4) provides that the president must at least once a year address a joint sitting of both houses of parliament on the state of the nation but since the president came into office in August 2013 he has not yet addressed parliament to issue the state of the nation address,” Majome added.
The President has not publicly issued a statement as to why he has not made a state of the nation address in parliament since he came into office in August 2013.
Retired High court Judge, Justice Moses Chinhengo said the country looks up to the courts to implement the constitution.
“The primary implementers of the constitution are the courts, you approach them, they will tell all and sundry that the constitution is supreme, any law or conduct which is inconsistent is invalid to the extent of the inconsistency,” Chinhengo said.
The lackadaisical approach towards implementation of the provisions of the constitution undermines the respect the people have for the new Constitution and the main consequence is that the process towards a more democratic order is delayed as in the case of devolution of power, according Coltart.