Constitutional amendments, lies, and the power grab

Zimbabwe has witnessed a series of constitutional amendments and legislative instruments that have drawn significant criticism for allegedly undermining the foundational principles of its 2013 Constitution. Notably, the Constitution of Zimbabwe Amendment (No. 1) Act, 2017, and the Constitution of Zimbabwe Amendment (No. 2) Act, 2021, have been perceived by many as attempts to consolidate executive power, particularly over the judiciary and electoral processes. These amendments, alongside controversial statutory instruments like SI 114 of 2023, have faced legal challenges questioning their procedural validity and substantive impact on constitutionalism, the rule of law, and the separation of powers. The ongoing legal battles highlight a critical tension between legislative prerogative and the imperative to safeguard democratic governance and institutional independence.

This article delves into the controversial Constitutional Amendment (No. 1) Act, 2017, and the Constitutional Amendment (No. 2) Act, 2021, along with a significant Statutory Instrument, examining their provisions, the procedural irregularities alleged during their enactment, and the subsequent legal challenges. The central thesis is that these legislative actions, perceived by critics as strategic power grabs, have systematically eroded key tenets of the 2013 Constitution, thereby challenging the very fabric of constitutionalism and judicial independence in Zimbabwe. The implications for legal practice and the future of democratic governance are profound, necessitating a vigilant and informed legal community.

However, the spirit of the 2013 Constitution has faced significant challenges through subsequent legislative actions. The first major deviation came with the Constitution of Zimbabwe Amendment (No. 1) Act, 2017 (Act 10 of 2017), which sought to alter the judicial appointment process. [cite: Constitution of Zimbabwe Amendment (No. 1) Act, 2017] This was followed by the more expansive Constitution of Zimbabwe Amendment (No. 2) Act, 2021 (Act No. 2 of 2021), which introduced a raft of changes impacting judicial tenure, the appointment of Vice-Presidents, and other institutional arrangements. [cite: Constitution of Zimbabwe Amendment (No. 2) Act, 2021] These amendments have been widely criticised by legal experts and civil society for concentrating power in the executive and undermining the checks and balances envisioned by the original Constitution, thereby raising serious concerns about the trajectory of constitutionalism and the rule of law in the country.

Beyond constitutional amendments, the government's use of statutory instruments has also come under scrutiny. A notable example is Statutory Instrument 114 of 2023 (Statute Law Compilation and Revision (Correction of Constitution of Zimbabwe Amendment No. 2. Act 2021)), which sought to modify Section 268 of the Constitution concerning the composition of provincial and metropolitan councils. [cite: Statutory Instrument 114 of 2023] This SI aimed to allow both men and women to be nominated for proportional representation seats, despite the amended Section 268 originally stipulating that ten women must be elected to these positions, effectively excluding men. Zimbabwe Lawyers for Human Rights (ZLHR) filed an urgent appeal before the High Court, arguing that attempting to amend the Constitution through a Statutory Instrument is unconstitutional, as it bypasses the stringent amendment procedures outlined in Section 328 of the Constitution. This illustrates a concerning pattern of circumventing established constitutional processes, further eroding the principle of constitutional supremacy.

Practitioners must remain acutely aware of the ongoing legal challenges to these amendments and instruments, as their ultimate validity continues to be tested in the courts. The outcomes of cases such as *Mushoriwa & 3 Others v Parliament of Zimbabwe & Another* will have far-reaching implications for constitutional interpretation and the future exercise of legislative and executive power. The legal community has a critical role to play in advocating for strict adherence to constitutional provisions and resisting any attempts to undermine the democratic gains enshrined in the supreme law, ensuring that 'winning by deceit' does not become the accepted norm in the nation's governance.