Constitutional Law, Identity, and Interpretation under Zimbabwe’s Rights Constitutionalism

The Constitution of Zimbabwe which came into operation in May 2013 ushered in new dimensions in constitutional discourse.  There can be no better way of unpacking these dimensions than through academic inquiry and interrogation of the diverse facets of the constitution from different perspectives.  Constitutional Law, Identity, and Interpretation Under Zimbabwe‟s Rights Constitutionalism has thus come at an opportune moment in the constitutional history of Zimbabwe.  It will greatly assist the judicial officers in Zimbabwe who have hitherto been vexed by attempting to transpose to the local context meanings ascribed to constitutional provisions in other jurisdictions. Evidently, the text prioritises the judiciary as a special constituency in its thrust.  This is clear from the numerous aspects of the work that are dedicated to judicial interpretation of and interface with the Constitution in particular, and constitutional law in general.  This renders the text a necessary tool for every judge to have.  That approach espoused in the text is not without justification when one considers the strategic position of the judiciary in a constitutional democracy such as one that Zimbabwe clearly aims to attain.  The wise words of Rose E. Bird, American Jurist and Chief Justice of the Supreme Court of California, in Los Angeles Times, November 16, 1977, are apposite: ―The courts hold a unique position among our democratic institutions.  In a sense, they represent one of our last bastions of participatory democracy, in which disputants go directly before a judge or jury to resolve an issue.  In no other governmental context does an individual could take a problem to a decision-maker who represents the full force and power of that particular branch of government.  This direct interchange between the individual and the state is at the heart of the democratic process . . . We must protect this unique heritage and strive to preserve the values it represents.‖ The work traverses a diversity of topics such as the interface between justice, politics and human rights and challenges and deconstructs traditional models of constitutional interpretation. Elsewhere, I hinted that the current Constitution of Zimbabwe demands a new thinking, a new mindset, and cannot be entrusted to those whose minds are sunken in the past way of reading a constitution.  Like Paul at Damascus, the current constitution calls for a true conversion to a new way of ―constitutional thinking 

one that xiii eschews the austerity of tabulated legalism‖ as was urged by LORD WILBERFORCE in the celebrated case of Minister of Home Affairs (Bermuda) v Fisher (1980) AC 319(PC); [1979] 3 All ER21(PC).  Without a judiciary with a changed mindset, the constitution becomes like a luxury bus entrusted in the hands of a driver of an illegal pirate taxi commonly known in Zimbabwe as ―Mushikashika‖.  In this respect, the title of Chapter 9 of the text is very piercing: ―Time to delink constitutional from ordinary statutory interpretation‖.  Alternative approaches to constitutional interpretation are postulated in the text.   The delicate subjects of fundamental rights and essential features of the constitution are unpacked with amazing profundity and clarity for the reader to readily understand them.  The message is clear from the text, that protection of these fundamentals is by no means fodder for a faint-hearted judiciary or one that is predisposed to placating its political appointers.  Yet the text also cautions against judicial overreach by unpacking the mechanisms inbuilt in the architecture of the Constitution to enable the judiciary to appreciate the parameters of its authority. In summary, the text is a ground-breaking work in the constitutional history of the country.  Academics, students, judicial officers, lawyers in private practice and in government, legislators and other stakeholders will find it useful in understanding the constitutional issues that affect the day to day lives of every person, natural or juristic.