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Sharon Hofisi Legal Letters
The nation-state, whether understood on republic/federal, kingdom/nation terms, has five if not six key institutions: the state; civil society; media; independent national institutions, religious institutions and academia.
The state is usually seen as a duty bearer although it has certain rights over its territory.
It may although claim territorial sovereignty and integrity.
Some institutions of the state may include the executive, judiciary, legislature and security institutions.
I need not labour on their functions, save to reiterate that all these institutions are expected to organise in terms of the constitution (where one exists) and national laws governing their operations.
Civil society is usually seen as the voice of the private citizens.
It may be regulated by laws on non-governmental organisations or other laws such as law relating to trusts, private organisations, public voluntary organisations and so forth.
Again the goal of civil society must be to ensure that the government of the day respects the constitutional and other legal nomenclature on governance and government.
Yes, civil society is changing and social movements may define themselves under civil society.
In building the nation-state, the whole of civil society must seek to achieve tangible results on constructive engagement between citizens (active/passive) and the state functionaries/public citizens.
The media, whether traditional or social, must provide informed reportage on key issues of public and national interests.
Whether state or private, media conveys information to a fraternal people of a given polity.
The ordinary persons look at sensationalising/mollifying headlines, debate on them and build their views about the social fabric, political will, economic turnaround and so forth.
They may not even seek to familiarise themselves with the content in a newspaper.
The reporter who uses logical evaluation to analyse a public policy may simply message the key theme in a headline.
The general populace will provide legitimacy to the newsroom argument that the cause of useful public debate starts in a newsroom or pitching of a newspaper headline.
Independent national institutions must not only rely on written principles on institutional independence; they must devise intensive and internal methods to ensure the public eye and ear rate their independence highly in terms of public trust and confidence.
The public perception index is thus key to whether or not a specific independent institution is indeed “independent”.
The private citizen’s experience in engaging with an independent institution considers whether his case or concern was properly investigated, managed and pitched in the public arena.
The pertinent consideration aims at determining if the institution used the constitutional or other legally-laid procedural safeguards which lead the general citizenry to take an institution’s independence seriously or otherwise.
Religious institutions (traditional and faith-based) and academia (from the mother’s hands to the university) play a largely social role, iconic or not sometimes.
Applying ethos from religion or achievements from academic endeavours on social cohesion, political maturity, economic development and technological advancement is not a matter of simply “deserving praise”.
What is crucial is inventiveness towards enhancing efficient performance and reform of the nation-state.
All these and other institutions vitalised by the private citizen to be preferred must aim at achieving what is called constructive trust — a trust that arises by operation of the law.
A public interest or nation-state inclination must end with a practical assessment of what various institutions do with the departure point being the advancing of a “constructive trust initiative”.
I borrow this term from English property law where constructive trust automatically comes into being when certain circumstances arise, for example, when a person in a fiduciary position makes an unauthorised profit or when a stranger meddles in a trust.
The definition is borrowed to simply motivate the argument that those who lead institutions listed above must strive to ensure that they win public trust and confidence whenever they discharge their mandates.
In some cases, constructive trust has a remedial component and remedial trust is a tool of the court that is used at the discretion of the judge to provide a remedy (Law and Martin 2009). Essentially, remedial trust is used to reverse unjust enrichment (ibid).
From the perspective of republican democracy as contemplated in the Zimbabwean Constitution, the general populace may ask the courts to provide effective remedy whenever they feel that a certain institution does not serve the interests of the greater public.
This borders on concepts of vertical or horizontal accountability (depending on the source of demand for institutional answerability).
Shall I render the ultimate issue to mean that: reforming the nation-state using institutional efficiency and accountability is fertile soil for building an all-inclusive society?
Now all your answers may be futile if key institutions in Zimbabwe do not adopt a commodious nation-state formula on engagement/disengagement.
Sharon Hofisi is a lecturer at the University of Zimbabwe. Feedback: [email protected].
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