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Sharon Hofisi Legal Letters
If a polity proposes to work within a certain democratic framework in democratising itself, or in dealing with its internal problems, it is inescapable that its citizens must strive to understand the preferred framework. It is usually helpful to have a blueprint to be used as a guidebook in evaluating the negotiable and non-negotiable democratic attributes in a polity.
Many states chose to design written blueprints to develop their democratic aspirations. They normally engage in people-driven constitution-making processes to make their democratisation efforts genuine. Sometimes they ensure that referendums are publicised and the general populace is properly informed on the gains of public participation and relevance in the governance and democratic initiatives that have a bearing on the development of their polity.
One of the most important types of democracy which unites the state functionaries and the general citizenry is constitutional democracy. Here, a written constitution is treated as the supreme law while functionaries and citizens are its servants. Zimbabwe follows this type and I have written about this preferred democratic form in some of my articles.
For democracy to work, those in and outside power structures should use the written ethos as the basis for their conduct in formulating and implementing policy on the part of functionaries and conduct in influencing policy on the part of citizens. Put simply, the basis of political governance must be shaped by the constitution.
The tenets of democracy that are listed in the constitution must not be perverted. Anyone who employs them must strive to uphold the spirit, purport and object of the constitution. Our constructs of opinions, beliefs, practices, influence, interpretation, duty, right or freedom amongst other endeavours must simply be aligned with the constitution. We must strive to treat the constitution as a living instrument, always read holistically, and never in piecemeal fashion.
We are humans – tripartite beings with body, soul and spirit. We cherish the days of our lives. We remember our moments of brilliance and moments of sadness; the days of celebration and days of gloomy. Similarly, democracy works through the breath of the constitution. The citizenry must be horizontally accountable by respecting the fundamental rights of others or acting responsibly as envisaged by the constitution. The functionaries must also be vertically accountable to the general populace as contemplated by the constitution.
To deny the supremacy of the constitution is to reject the very essence of the constitution – the expressed will of the people. The constitution is the psychological make-up of the polity. Democracy’s maturity depends on the kind of people we seem to be. It cries out to be consolidated by the people who really chose to follow it.
To be able to respect all the democratic tenets laid down in a constitution, and treat them as essential for the democratisation of a polity, a polity’s citizens must follow the path that leads to constitutionalism and the rule of law. Only then will democracy be consolidated, and the polity regarded as democratic, one that shuns the rule by law.
Being respected by others as democratically mature enhances a polity’s own democratisation efforts. All the rights and freedoms democracy gives; the freedoms and limitations are found in the constitution. As one flips the pages of the constitution, the duty to uphold the constitution must never be ignored.
lt is a pity that so late we find ourselves abrogating the constitution. We treat its provisions with contempt. We force democracy to retreat and we become disposed to dictatorial, semi-authoritarian or pariah tendencies. A fundamental blueprint would have been discarded. Then, as we interact with other polities who strive to follow the path of progressive democracy, we search for acceptance and constructive interactions.
But those searching for progressive democracy will find in us the absence of respect for the constitution. To ignore the tenets of democracy in the constitution would be to ignore a great instrument which acts as our meeting point with internationalism. Yes, constitutionalism is a Siamese twin of internationalism. We have used the constitution’s tripartite status of spirit, object and purport to illustrate the simple truth that the people’s will is adequately captured in a constitution.
The constitution’s spirit is our democratic consciousness or the tenets of our constitutional democracy that include various categories of rights such as the right to vote which Zimbabweans – using their constitution, asserted on July 30 2018.
The purport and object, of course, are the various constitutional provisions which we use as the means by which we advance democracy in our polity. The tripartite illustration is very simple and effective: we merely respect those who act in a constitutional or democratic way and shun those who are complicit in impunity and wantonly breach the constitution.
Upon the basis of our supreme law; the mother law of our land; we have the firm conviction that this house of stone called Zimbabwe will never be turned into a glass house. After we have decided to uphold democracy, we can rightfully call ourselves a mature democracy.
Sharon Hofisi is a lawyer and lecturer in administrative law. feedback: [email protected]
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