DEFINITION OF CONSTITUTIONAL LAW

In order to understand clearly the province of constitutional law it is important to define what is a constitution. A constitution may be understood in one of two ways: In a narrow sense, a constitution refers to a special legal document which sets out the framework and functions of the organs of the state and how they relate to each other. In a wider sense, a constitution refers to the whole legal and political framework of the government of a country, the collection of rules which establish and regulate the government. The narrow sense term is misleading in that no single document can capture all the rules which regulate the system of government and in almost all modern democracies while the constitution is the most important source of these rules, there are certainly other sources such as customary rules and practices. Further, some countries such as the United Kingdom have no single written document called the constitution. Thus, the term constitution should be understood in the wide sense; a constitution thus: 1. Sets out the institutions of government 2. Defines their powers and how they relate to each other
3. Makes out how the individual relates to the state (almost invariably through a bill of

rights) Constitutional law is the law governing these aspects. Professor Hogg has described constitutional law in the following terms, Constitutional law is the law prescribing exercise of power by the organs of the state. It explains which organs can exercise legislative power, executive power and judicial power and what the limitations of those powers are. Civil liberties maybe created by the rules that limit the exercise of governmental power over individuals. (See Constitution of Canada)

CONSTITUTIONAL LAW AND POLITICS

The relationship between constitutional law and politics should be ascertained from the essence of a constitution and how it comes into being. One living political scientist, Tom Paine said, A constitution is a thing antecedent to a government and a government is only the creature of the constitution. A constitution is not an act of government but a people constituting a government. A government without constitution is power without a right. The opening statement in the constitution of the United States of America goes as follows, We, the people,

in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote general welfare and secure the blessing of liberty to ourselves and posterity do ordain and establish this constitution for the United States of America. This formula of We, the people makes the critical point that ultimate authority in the constitutional order is derived from the people. This is why the constitution is regarded as supreme. In each case the battle is to ascertain the wishes of the people in constituting government. This authority of the people is reflected in the political alignments of the time. Virtually everyone who has purported to write a constitution claims that it is the word of the people. Most modern constitutions open with the words, We, the people.

CLASSIFICATION OF CONSTITUTIONS
1. De Jure and De facto Constitutions A de jure constitution is a specific and legal

constitution (the actual legal position) or the ideal while a de facto constitution is not a specific legislative act. An unwritten constitution is not necessarily legal but is the very existence of political power and its exercise. It is the situation on the ground.
2. Written and Unwritten Constitutions A written constitution is a specific legal

document called the constitution which is usually the result of a specific legislative act. An unwritten constitution is not necessarily unwritten but there is no single document called the constitution, instead there is a collection of various laws which constitute the basic law of the state e.g. the United Kingdom, Israel, New Zealand, Canada and Libya.
3. Flexible and Inflexible Constitutions A flexible constitution is one in which there is

no specific procedure for its amendment and the constitution is amended like any other statute (this is the case in the United Kingdom). An inflexible constitution provides a specific and separate procedure for the amendment of the constitution e.g. requiring twothirds or a referendum. However, flexibility is a matter of degree. In Zimbabwe which would fall under inflexible constitutions in terms of these classifications, a two-thirds majority of all members of parliament is required for its amendment. This is less rigid than constitutions which require 100% vote in favour (as in the case with the Namibian Bill of rights) or approval in a national referendum.
4. Presidential and Parliamentary Constitutions - This classification is based on the form

of the executive organs of the state and its relationship with the legislative arm. In a presidential system the executive is headed by the President, who is not a member of the legislature. An example is the U.S.A and this is why it is sometimes referred to as the American system. Under a parliamentary system, the head of the executive is the Prime Minister who is also a member of the legislature and is responsible to it. He or she is not the head of state there is a separate head of state that has no executive functions. A

typical example is the U.K and this is why it is sometimes referred to as the Westminster system. There are a number of variations under each system and some constitutions do not easily fit into either of them. The Zimbabwean system is largely presidential but has some aspects of the Westminster model. The South African system is closer to the Westminster system but has some significant aspects of a presidential system. N.B The current Prime Minister of Zimbabwe created by Amendment 19 is not a Prime Minister of the Westminster type he is not head of government.
5. Federal and Unitary Constitutions In a federal state, the constitution provides for the

autonomy of states which make up the federation and is often clearly different from the unitary state where issues of autonomy do not arise. Examples of federal states are U.S.A, Canada, Switzerland, and Nigeria. Some countries, although they cannot be described as federal do provide for substantial degree of autonomy to their regions e.g. South Africa.
6. One Party and Multi-Party Constitutions This used to be an important distinction

during the era of one party dictatorships in Africa. A constitution for a one party state would have to provide for a special system of elections and eligibility for political office. An extreme example was provided by the Malawian constitution which specifically provided that, The President shall be Hastings Kamuzu Banda for his entire natural life.
7. Monarchical and Republican Constitution In a monarchical constitution there is a

monarchy who is head of state while in a republic the head of state is a President. However, a monarchy may also be head of state and government e.g. Swaziland. Other monarchs are only heads of state e.g. U.K. Similarly a President may either be both head of state and head of government or head of state only.
8. Autochtorious and Allochtorious Constitutions An autochtorious constitution is one

that is homegrown while an allochorious has foreign origins such as the one granted at the end of colonial rule e.g. Lancaster House Constitution.

SOURCES OF CONSTITUTIONAL LAW

1. Legislation Zimbabwe has a written constitution in the sense that there is a specific

legal document called the constitution. This is the primary source of constitutional law in Zimbabwe. Section 3 of the constitution says, This constitution shall be the supreme law of Zimbabwe and any law inconsistent with it shall be void to the extent of the inconsistency. This supremacy has been illustrated in a variety of cases. Ian Douglas Smith v. Didymas Mutasa 1989 (3) ZLR 183

In this case Parliament, by a resolution, deprived Mr. Smith of his salary for an alleged breach of the law of Parliament. Mr. Smith approached the Supreme Court which ruled in his favour on the basis that Parliament had infringed Section 16 of the Constitution. Mutasa, a speaker of Parliament, thought that the court could not intervene in the internal affairs of Parliament and vowed not to pay Smith, even a cent. In an unprecedented statement the court took occasion to remind the speaker of the supremacy of the constitution. The constitution is itself an act of Parliament. Apart from the constitution there are other important pieces of legislation such as the Electoral Act, The Immunities, Privileges and Powers of Parliament Act, etc.
2. Common Law Judicial decisions are an important source of constitutional law. It is

important to make a distinction in this regard between British constitutional law and Zimbabwean constitutional law. With an unwritten constitution British constitutional law relies extensively on the common law for a number of constitutional issues including human rights protection. In Zimbabwe the main source of constitutional principles is the written document with the common law being relevant in the interpretation of the constitution. In this way the constitution only refers to case law in as far as it purports to provide an understanding to written law. Under British constitutional law, constitutional principles can be founded directly on the common law thus a right recognized by common law is a right protected by the constitution unless taken away by statute. It may, however, remain a right but not a constitutional right. An important aspect of common law is the role of international law. In terms of section 111(b) of the constitution, a treaty or agreement to which Zimbabwe is a party shall not become part of the law of the country unless it has been incorporated into law by an act of Parliament. A rule of customary international law is automatically regarded as part of the law of Zimbabwe except where it is in conflict with a rule of common law (See Barker Mc Cormack v. Government of Kenya 1983 (1) ZLR 137). There has been an indigenous attempt to invoke the common law as a direct source of the constitutional law by Chidyausiku J (as he then was) in Davis v. Minister of Lands 1994 (2) ZLR 294
3. Custom Custom has relevance in constitutional law in two situations a. Conventions which are a unique feature of British constitutional law. They are not

rules of law but rules of practice which are generally observed. They have been described as rules of constitutional behavior which are considered to be binding upon those who operate the constitution but which are not enforced by the courts of law. Professor Hogg has described conventions in the following terms, Conventions are rules of the constitution that are not enforced by the law courts. They are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution they are an important concern of the constitutional lawyer. What legal

conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official. Other conventions limit the apparently broad legal power In the U.K most rules of the constitution are based on convention e.g. there is no statute or common law which says there must be a Prime Minister and a cabinet although there is legislation providing for their salaries. These offices are created by convention. The leader of the majority party shall be appointed Prime Minister and all other ministers are appointed on his or her advice. The Queen must assent to every bill adopted by Parliament. The Queen can only act on the advice of the government of the day.
b. The custom and law of Parliament is legal rules which have been established by

custom. Many practices are based on custom and therefore legally binding e.g. impartiality of the speaker, the function of party whips, the allocation of time to the opposition, etc. 4. Authoritative Text

CONSTITUTIONAL SUPREMACY VERSUS PARLIAMENTARY SUPREMACY

Constitutional supremacy exists when the constitution is the supreme law of the land, with anything inconsistent with it void (See Section 3 of the constitution of Zimbabwe). In the U.K the concept of parliamentary sovereignty is the cornerstone of British constitutional law. This concept is that Parliament is competent enough to make or unmake any law whatsoever in any matter whatsoever and no U.K court is competent to question the validity of an act of Parliament. Further, any other law making body in the country exercises that authority at the pleasure of Parliament it can neither be superior to nor at the same level. According to Dicey, Parliament has, under the English constitution, the right to make or unmake any law whatever and further that no person or body is recognized by the law of England as having the right to override or set aside the legislation of Parliament. (See Dicey, The Law of the Constitution, p.39; Madzimbamuto v. Ledner Burke [1969] 1 AC 645 @ 723) In Cheney v. Conn [1968] 1 WLR 246 @ 247, it was emphatically stated, What the statute itself enacts cannot be unlawful because it is the highest form of law that is known to this

country. It is the law which prevails over every other form of law and it is not for the court to say that a parliamentary enactment is illegal. *There are a few exceptions to parliamentary sovereignty in the U.K (European Court of Human Rights and European Union law) The exact opposite is the position under constitutional supremacy a statute can be declared illegal by the courts for being contrary to the constitution (See Ian Douglas Smith v. Didymas Mutasa 1989 (3) ZLR 183). The approach of constitutional supremacy was pioneered by the U.S.A when in the famous case of Marbury v. Madison 5 U.S 137 [1803] the U.S Supreme Court held that the judicial function vested in the court necessarily carried with it the task of deciding whether an act of Congress was or was not in conformity with the constitution. It should be noted that the U.S constitution itself did not make any specific provision for judicial review. It is the Supreme Court which formulated the doctrine, Marshall CJ reasoned as follows, The purpose of a written constitution is to outline and limit the powers of the legislature and other branches of government. Its principles are fundamental and there can be no point in framing a constitution if the legislature could exceed the limits of the constitution. Thus it is implicit in the very nature of a written constitution that legislation inconsistent with it is null and void. Constitutional supremacy stands on two legs the existence of a written constitution and judicial review to check conformity with the constitution.

CONSTITUTIONALISM AND DEMOCRACY

The cornerstone of the principle of constitutionalism is the belief in limited government, namely, that the exercise of governmental power should be controlled so that it is not abused to the detriment of society. According to Eric Baron, constitutionalism is a belief in the imposition of restraints on government by moves of a constitution. It advocates the adoption of a constitution which is more than a power map its function is to organize political authority so it cannot be used oppressively or arbitrarily. Not every constitution respects constitutionalism. Constitutionalism is not merely adherence to a constitution whatever its contents. It is adherence to a constitution which embodies fundamental features of limiting governmental powers such as separation of powers, independent judiciary, and protection of fundamental human rights and provision of a full democracy. In other words constitutionalism requires that the constitution should necessarily check absolute power. If it doesnt it cant be fit to be called a constitution e.g. Hitlers constitution. An aspect which has raised problems for constitutional theory is what Americans call countermajoritarian dilemma namely, that when a court declares a legislative act to be unconstitutional it undermines the democratic will in that unelected judges who are not accountable to the people nullify the acts of a democratically elected legislature. The difficulty is judicial review is accepted in almost all leading democracies how can it be justified? A number of constitutional law theories have justified judicial review. The first is by Alexander Bical in

his book The Least Dangerous Branch, it is said that the democratic process itself has inherent weaknesses. One which is that legislation may be rushed through Parliament without consideration of its impact on the public. The court has certain capabilities of dealing with matters of principle which the legislature does not have, When the pressure for immediate results is strong enough and emotions are high enough legislators will ordinarily prefer to act on expediency rather than taking the long view. Judges have the leisure, the training and the insulation to follow the ways of the scholar. This is crucial to preserve the values of society. The court can appeal to mans better nature. This is unsatisfactory as it sees judges as super-beings who have their own politics. The second theory has been promulgated by Professor Ronald Dworkin; it says that judicial review is a necessary part of a democratic system in that there some things that a majority cannot do no matter how democratically it decides to do them. In other words democracy means more than majority rule. The majority has to respect certain fundamental values and rights. The model advocated under this system is a constituted democracy where judicial review is the most effective procedure for the protection of fundamental rights. The third theory is called the theory of originalism which argues that the courts should interpret a constitutional provision according to its original meaning the meaning intended by the framers of the constitution. The justification of this approach is that the constitution itself is the will of the people and the objective of the judicial process is to ascertain this will so the countermajoritarian dilemma is removed because what the courts are merely doing is to express the will of the majority as embodied in the constitution. A leading expert of this theory is Robert Bork in his book, The Tempting of America The Political Seduction of the Law 1990. The fourth theory is the Mugabe Approach namely that the counter-majoritarian dilemma is a minor because majoritarianism will ultimately win by reversing the decisions of the court through an appropriate constitutional amendment.

BOURGEOIS/LIBERAL THEORIES ON THE STATE, LAW AND THE CONSTITUTION

These set of theories share one quality namely that they are not Marxist theories. This group sees the state and the law as inevitable. A leading theory of the state and constitution is that of John Locke who popularised the theory of the social contract. The central component of the social contract is that persons subject themselves to the power of others by way of consent, the only way whereby anyone diverts himself of his natural liberty and puts on the binds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe living and secure enjoyment of their properties and a greater society against enemies that are not part of it. Only that which is necessary to create the community is given up. Political power should only be exercised for the

common good. The wording of the American declaration of Independence is a clear reflection of the social contract theory. We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain inalienable rights that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, governments are instituted by men deriving their power from the consent of the governed that it is the right of the people to institute a new government, laying its foundations on such principles and organizing its power in such form as to them shall seem most likely to promote their safety and happiness. Another theory falling into this class is Kelsens theory known as the pure theory of law. According to Kelsen the validity of a legal order ultimately rests on its effectiveness. He wrote, Suppose a group of individuals attempt to seize power by force in order to remove the legitimate government, if they succeed, if the old order ceases and the new order begins to be effective because people believe in conforming to it, it becomes the valid order in all legality. But if they fail their undertaking is an illegal act as the crime of treason, they must be judged by the constitution which they have failed to overthrow. The Kelsenian view has been considered in a number of cases. Madzimbamuto v. Ledner Burke 1968 (2) SA 284 This case contested the legality of Smiths UDI regime. In 1965 Ian Smith declared independence from Britain, this was condemned world wide but Smith and his government remained in power. They severed all ties with the British government under the previous constitution and governed without any reference to the British. UDI was a strategy to avoid the British giving independence to the blacks. Madzimbamuto challenged the legality of Smiths laws. The laws were illegal because the regime was illegal. The Rhodesian Appellate Court referred to Kelsen with approval but claimed that it was unable to say whether the Smith regime was in effective control. The court then invented and applied the doctrine of necessity They could not create a legal and political vacuum. They upheld Smiths laws on that basis. R v. Ndlovu 1968 (4) SA 515 The Rhodesian Appellate Court was now confident it held that the Smith regime was in effective control and was therefore the new legal order. Recently Kelsen resurfaced in Malawi in 1996 in the so called Press Trust case. In that case, the Malawian government had serious clashes with the opposition. According to the constitution a two-thirds presence was required to constitute a quorum. The opposition boycotted Parliament and no quorum could be formed. The government went ahead with Parliamentary business and enacted legislation, contrary to the constitution. The resulting act was challenged in the High

Court and was nullified. On appeal in the Malawi court of appeal references were made to Kelsen and to the case of Madzimbamuto. The court applied the doctrine of necessity from Madzimbamuto and upheld the act.

MARXIST THEORY ON THE STATE, LAW AND THE CONSTITUTION

The theory is built on the principles of dialectical and historical materialism which may be summarized as follows. 5. All things and phenomena in nature are interconnected and conditioned by each other.
6. Everything in nature is in a state of motion with some things appearing and developing

while others wither away and disappear.

7. Development in nature occurs as a result of small unnoticeable and gradual quantitative

changes which suddenly leap into a new quality i.e. quantitative changes lead to qualitative changes. 8. Developments are due to internal contradictions which are inherent in all things and phenomena. It is the struggle between these contradicting aspects which causes transformation from quantity to quality. When these principles are applied to the study of development of society the method is called historical materialism. It is characterized by the following features:
4. Matter is primary in the sense that it is the material basis of society rather than ideas

which determine development. That material basis is the economic structure of society and this determines the legal and political institutions. 5. Social ideas, law and politics are called the superstructure; they are determined by the economic structure. They may in turn exercise influence on the economic base. 9. As everything in nature is always in a state of motion one social economic structure is replaced by another and this arises from the inherent contradictions of society. These contradictions arise by way of class struggles. The class that owns the economic base oppresses the other classes and uses law to advance its agenda. Changes in class formation always take place through revolution i.e. for a new class to own the means of production. Thus society has moved from primitive communalism to the slave trade, to feudalism to capitalism and communism (the first phase of the communist system is socialism). To each of these social formations corresponds a definite type of state and law. Law and the constitution have not always existed; they emerged at a certain stage in the development of society as an

admission that society was involved in class struggle. According to Frederick Engels the state arose as a power seemingly standing above society to moderate the conflict. However, as a rule the state is controlled by the most powerful, economically dominant class. It therefore is a state of a particular class and uses law to promote class rule. Constitutions therefore come into being as instruments of class rule the success of a revolution leads to the adoption of a new constitution to record the victory.

PRE-COLONIAL TIMES
Before the advent of colonial rule, the territory now call Zimbabwe was inhabited by different African kingdoms with different political systems. Each kingdom had its own feudal constitutional system and there is no pre-colonial Zimbabwean constitution to talk about.

THE COLONIAL PERIOD

The territory now called Zimbabwe was forcefully occupied against the will of the Africans. The colonial masters had all sorts of legal arrangements designed to create what can be described as the constitutional basis of their rule. The story begins with the Moffat treaty of February 1888 which was entered into between Moffat, who was the British resident Commissioner in the then Bechuanaland and Lobengula, King of the Ndebele. In that treaty Lobengula is said to have agreed that he would, would refrain from entering into any correspondence of treaty with any foreign state without the previous knowledge and sanction of her majestys Commissioner in South Africa. The importance of this treaty was that in the then international practice, Lobengulas territory was now under British sphere of influence. This meant that Lobengulas territory had been earmarked for future British acquisition. The Moffat treaty, therefore, provided the first legal though shaky basis for British rule in Zimbabwe. As soon as the Moffat treaty was entered into it had to be ratified by the British government which still had to decide methods of occupation of Lobengulas territory. At about the same time a group of private British persons under the leadership of Cecil John Rhodes approached Lobengula. This eventually led to the signing of the Rudd Concession in which Lobengula is said to have agreed to grant Rhodes and his people, The exclusive charge over all metals and minerals situated and contained in my kingdoms and principalities together with the full power to do all things that they may deem necessary to win and procure the same. This was then taken to mean that Rhodes had been given the right to exercise some governmental control to enable his group to exercise the rights granted by the Rudd Concession. The British at this stage still regarded Lobengula as the sovereign of the territory and further steps were required for control of his territory. Rhodes moved fast and formed the British South Africa Company (BSAC) which acquired the Rudd Concession. Its

company then applied for a Royal Charter to enable the company to occupy Lobengulas territory on behalf of the British government. In October 1889 the Royal Charter was granted directly from London. Its basis was that the British had authority over Lobengulas territory. The Charter therefore became the first substantive legal instrument creating a legal basis on which governmental authority in Zimbabwe would be exercised. It can therefore be described as being the first constitution of Zimbabwe because it set out the manner of exercise of governmental power. In terms of the Charter, administration of the territory was left to the BSAC for 25years and was redeemable for specified periods and could be revoked. It also dealt with legislative and judicial power and authorized the establishment of a police force (Article 10). More importantly the Charter described the relevant territory as follows The region lying immediately to the North of British Bechuanaland, to the North of the South-West African Republic, to the North of the South African Republic and to the West of the Portuguese territory. There was no northwards limit so the company had authority to occupy Zambia, Malawi, etc (Cape to Cairo). The Charter therefore imposed company rule on Zimbabwe. Armed with these legal documents the BSAC occupied Mashonaland by raising the Union Jack at what was then known as Fort Salisbury on 12 September 1890. This was a symbolic act of annexation marking the beginning of colonial rule in our country. The white settlers immediately started with the annexation of land and identification of mines without consultation with the local people. On 10 June 1891 the High Commissioner at the Cape issued a proclamation setting out the exercise of judicial power by establishing various magistrates courts in Mashonaland and also ordered the application of the law applying at the Cape on that day. This became the second important legal document which was a source of constitutional law of the new territory. These events worried Lobengula. The settlers started mobilizing for war. Towards the end of 1893 there broke out war between the Ndebele and the British. This was primarily Lobengulas bid to regain sovereignty. Regrettably the Ndebeles were crushed and this created an opportunity for real political control over Matebeleland. King Lobengula died at the beginning of 1894. The war ended with his death. After defeating Lobengula the BSAC approached the British government for a more specific legal document specifying its governmental powers. This led to the Matebeleland Order in Council of 18 July 1894. The title was misleading because it covered the whole territory now called Zimbabwe. This was the third constitutional document. It was more specific as a local constitution. It divided legislative power between the British government and the BSAC. Law coming form Britain was in the form of ordinances. The second form of law was a proclamation from the British High Commissioner in South Africa. The third were regulations by the company. Africans began to resist colonial rule immediately after the 1894 war. In 1896 both the Shonas and Ndebeles rose against the settlers (The First Chimurenga). It was ruthlessly crushed and this provided another opportunity for consolidation of power by the white settlers. The 1894 Order in Council was immediately replaced by the Southern Rhodesia Order in Council. This was a reward for the settlers as a distinct group from the company (shareholders and officers). A new category of whites became evident the settlers who were not members of the BSAC who were not members of the BSAC who participated in the war against the Shonas and Ndebeles and the constitution had to recognize their role. The country was now named Southern Rhodesia

and this ordinance was the fourth constitution. It created some sort of a parliamentary system with a legislative council and an executive council. The settlers were given representation in the legislative council but the majority board remained with the company representatives. This constitution governed the territory from 1898-1923. In 1923 a new constitution was enacted. It was called The responsible Government Constitution. The constitution came after a referendum among whites in 1922 whereby the choice was between joining South Africa and remaining as a separate territory. Company rule was ended and replaced by a responsible government (self governing colony). The government was headed by a Prime Minister but it reported to the British government on a variety of matters. On legislation, there existed a number of reserved clauses in which the colony could not make law they were reserved for the British government. One such area involved what was called the Native Affairs. The government was dominated by farmers. Before this constitution had been adopted there had occurred a landmark development concerning land. Inre Southern Rhodesia 1911 AC 211 The question arose as to who owns land in the territory, the Privy Council decided as follows, that land had been legally acquired by the crown through conquest in other words a military conquest was regarded as a legal way of acquiring land. By 1923 this was regarded as a settled legal position. From 1923-1961 this constitution remained in force but during that period there were a number of constitutional developments, most notably the rise of African resistance. In an effort to deal with rising African nationalism, the white settlers in Southern Rhodesia, Northern Rhodesia and Nyasaland created a federation in 1953. Te federation collapsed in 1963. It was governed by a federal constitution but this did not replace the constitution for the territory. Inside Southern Rhodesia, the 1950s proved to be very difficult because of the growing tide of African nationalism. In 1959, for instance, Africans launched the National Democratic Party (NDP) led by Joshua Nkomo. The British government exerted pressure on the settlers for a new constitution to accommodate some of the concerns of the Africans. This led to the enactment of the 1961 constitution which created a legislative assembly of 65 members. Joshua Nkomo and some of the leaders had been consulted over his new constitution and had participated in some meetings in London. Out of 65 members of the legislative assembly, 50 were to be elected by voters in an A voters roll, while 15 were by voters on a B voters roll. Qualifications for either roll depended on property ownership. For the A roll the voter had to have at least 4 years of secondary education, and own a piece of land. No African owned a piece of land. The A roll was exclusively for whites. For B roll at least 2 years secondary education and earn at least 264/year. Poor whites and some blacks qualified to the B roll. This meant that some blacks were introduced to the operations of government but the impact was negligible. Resorting to property qualifications was meant to mask social segregation and Africans were not misled. The 1961 constitution was therefore rejected by African nationalism. In the 1961 constitution, the government was led by a Prime Minister with a non-executive head of state called a governor who represented the queen. It purported to provide for protection of

human rights under a bill of rights which was not justifiable it could not be taken to the courts. With the 1961 constitution, Britain came close to granting the white settlers independence. It was this prospect of independence for white settlers which galvanized African nationalism. Preparation for the Second Chimurenga began. The NDP which had been formed in 1959 was banned in 1961. It resurfaced as ZAPU in 1962 under the leadership of Joshua Nkomo again. It split in 1962 and then the formation of ZANU under Ndabaningi Sithole. This development worried the white settlers who continued to push for independence. With the independence of Nyasaland in 1963 and Northern Rhodesia in 1964 the white settlers feared that the British could give independence to the black nationalists. Ian Douglas Smith won elections in 1964 as Prime Minister on the ticket that he would get independence for the white settlers. When Britain refused, Smith, at 11a.m on the 11th of November 1965 declared independence for white settlers and introduced a new constitution the 1965 UDI constitution. The country was now named Rhodesia. The office of the President was introduced to replace governor in 1969 under a new constitution call the Republican Constitution. The African nationalists intensified the liberation struggle which began with the battle of Chinhoyi in 1966. By 1978, the Smith government was feeling the full effect of the liberation struggle; attempts were made to divide African nationalism. In March 1978 there was what is called an Internal settlement involving Ian Smith, Bishop Muzorewa, Ndabaningi Sithole and Chief Ndiweni. In terms of that settlement a new constitution was to be introduced, elections conducted on the basis of one man one vote and the country would be renamed Zimbabwe-Rhodesia. A new constitution came into force in 1979. This is called the Zimbabwe-Rhodesia Constitution. It had a house of assembly of 100 members, 72 blacks and 28 whites. There were many clauses that protected white interests. ZANU and ZAPU rejected this arrangement and continued with the war. Bishop Muzorewa became Prime Minister in April 1979. A close reading of the constitution shows that blacks who participated were grossly nave. Within 6 months the British convened the Lancaster House constitutional conference, having realized the futility of the internal settlement. The Lancaster talks finally brought independence to Zimbabwe with the adoption of a new constitution. It was preceded by elections because the constitution came into force on 18 April 1980 with a new government led by Prime Minister Robert Mugabe (who would later become President, head of State and Government, Supreme Commander of the Armed forces and Chancellor of the University of Zimbabwe). On 1 January 1980, Zimbabwe-Rhodesia reverted back to Southern Rhodesia as a colony of Britain under a governor appointed by the queen. The governor who came to Zimbabwe was called Lord Soames. This is the governor who together with Prince Charles handed the button of independence to Robert Mugabe and Banana in Rufaro stadium at 12 midnight on 18 April 1980. This is the current constitution.

THE POST-INDEPENCE PERIOD

See L. Madhuku 1999 Zimbabwe Law Review 10. The constitution has been amended 19 times in 29 years.