Academic literature on the topic 'Lancaster House Constitution'

This article provides an overview analysis of the relevant provisions of the Zimbabwe Constitution Amendment Act 20 of 2013 (Zimbabwe Constitution 2013) that, inter alia, deals with the functions of the judiciary. To this end, the article examines the adequacy of the aforesaid provisions in relation to their practical enforcement and the promotion of constitutional democracy in Zimbabwe. In light of this, a synoptical analysis of the gaps and flaws of the provisions dealing with the functions of the judiciary under the Zimbabwe Constitution 2013 will be provided. In addition and where applicable, a comparative analysis of these provisions and those that were provided under the Lancaster House Constitution of Zimbabwe Amendment Act 19 of 2008 (Lancaster House Constitution 2008) will be undertaken. This is done to explore whether the flaws and gaps that were associated with the relevant provisions of the Lancaster House Constitution 2008 are now corrected under the Zimbabwe Constitution 2013. Thereafter, possible recommendations and concluding remarks will be stated.

Zimbabweans have been both victims of and witnesses to serious human rights violations over the years.Though there is wide agreement and speculation that the state and its agencies are the perpetrators of these atrocities, they have largely remained unprosecuted and unpunished.Such impunity is inter alia the result of ineffective law enforcement mechanismsand institutions as well as the lack of capacity and legal knowledge of victims to approach the courts and seek redress. These factors negatively affected the protection of human rights and access to justice in Zimbabwe.Although the Lancaster House Constitution contained a Declaration of Rights, its enforcement mechanisms, particularly those relating to locus standi (legal standing), posed a great challenge to human rights litigation in Zimbabwe. This is so because the Lancaster House Constitution adopted the traditional common law approach to standing. Under this approach it was required that an individual must have a "personal, direct or substantial interest" in a matter in order to have standing. The Lancaster House Constitution failed to recognise the importance of broader rules of standing, which would accommodate public interest litigation, specifically for the purpose of protecting human rights. Contrary to this, the new Constitution of Zimbabwe (2013) broadens the rules of standing in order to enhance access to the courts. This paper analyses the new approach to standing under the new constitutional dispensation in Zimbabwe.To this end, the discussion commences with an elucidation of the concept of locus standi and its link to access to justice. This is followed by an analysis of locus standi under the Lancaster House Constitution. Since the new approach in Zimbabwe is greatly informed by the South African approach to locus standi, a brief analysis of standing in South Africa is made. The paper concludes with a discussion of the approach to locus standi under the new constitution with a view to demonstrating how the new approach is likely to impact on the right of access to justice and human rights protection.

On 18 April, 1991, the Republic of Zimbabwe celebrated its 11th year of independence. Coincidentally, just a few months earlier, the 11th constitutional amendment Act was passed. This flurry of legislative activity was the result of a desire on the part of the government to develop a new constitutional structure rather than to remain with the constitution which was essentially imposed upon it by the British during the 1979 Lancaster House conference which eventually led to independence in 1980. The new constitutional model is of considerable interest as it is based upon those operating in many other African nations but, according to the Minister of Justice, is designed to provide safeguards on the exercise of presidential power and to avoid unnecessary conflict and division between the various branches of government. On several occasions, ministers have stressed the autochthonous nature of the new structure and some have indeed suggested that it might form a model for other African countries.It is the intention of this article to examine the legitimacy of these assertions by analysing both the new constitutional structure and its operation in practice. In order to assess the significance of these changes, it is first necessary to examine very briefly the Lancaster House constitution and constitutional developments in the early years of independence.

The origin of the initial African constitutions is easy to establish. While the former British territories “received” their Westminster-type constitutions negotiated during the Lancaster House conferences, the former French territories, except Guinea, became independent under constitutions drawing heavily upon the constitution of the Fifth French Republic, of which they were virtual copies. Among the countries formerly under Belgian rule, the Congo (Zaïre) was the only one attaining independence with a constitution, theLoi fondamentaleof 1960 which was an Act of the Belgian Parliament.Therefore, initially the degree of homogeneity was fairly large; there were basically three types of constitutions and the deviation from these models was limited. Admittedly subject to adaptations all the Westminster constitutions were similar, and in fact to some extent they still are; thus in its essential features the 1980 constitution of Zimbabwe draws from the same stock as its predecessors of the early 1960s. The first constitutions of the former French territories were, likewise, very similar, inspired as they were by the French constitution of 1958. TheLoi fondamentaleof the Congo was strongly influenced by the Belgian constitution, and so was the autochthonous constitution of Burundi which was promulgated a few months after independence in 1962.Many constitutions have since succeeded these initial texts: between 1960 and 1985 there have been 43 constitutions in the 18 French-speaking countries under consideration, i.e. an average of 2·4 constitutions per country. This flow has led to a considerable diversification of constitutional types.

The gazetting of the Land Acquisition Bill on 24 January, 1992 unleashed what has been described as the fiercest debate ever known in the history of Zimbabwe. However, the issue of land reform had been back on the political agenda ever since the expiry of the Lancaster House Constitution on 18 April, 1990, and pressures from a variety of quarters, both internal and external, had been brought to bear on the government during the intervening period. In particular, its adoption in 1990 of a document declaring National Land Policy had generated intense controversy. In accordance with the principles set out in that document the government has sought to facilitate the acquisition of land for resettlement purposes, first by amending section 16 of the Lancaster House Constitution and subsequently by enacting the Land Acquisition Act. In formulating its policy the government has recognized both the need to redress inequalities in land distribution and the need to take into account current national and international socio-economic realities. The result is a compromise.

If human rights are to be effectively protected in any country, the judiciary has to recognise that it also has a role to play in this regard. The rationale for this is that the judiciary has a duty to enhance and protect human rights. Across Africa and most notably in Zimbabwe political interference has been noted as a factor that limits judicial independence. In Zimbabwe the weak protection of judicial independence has contributed to gross human rights violations. Constitutional reforms have been conducted in order to improve the independence of the judiciary and consequently the judicial protection of human rights. These efforts have resulted in the adoption of a new Constitution in Zimbabwe which has replaced the Lancaster House Constitution. The Constitutional reforms have captured legal principles which will ensure an improvement in the human rights situation. Key to the reforms has been the independence of the judiciary. The Constitution guarantees the independence of the judiciary. Despite such guarantees there are a number of challenges with regards to this independence. The aim of this paper is therefore to analyse the judicial reforms introduced by the Constitution of Zimbabwe with a view to establishing whether or not such reforms are likely to improve judicial independence and in turn the protection of human rights in Zimbabwe.

Zimbabwe became a colony of the British Empire on 13 September 1890, and attained independence in 1980. During the colonial period of 1890 to 1980 land was expropriated primarily from the indigenous Ndebele and the Shona tribal groups through the institutionalisation of legislation that brought about the segregation of Africans and paved the way for settlement and farming by whites. Between 1980 and 1990 there was little progress in terms of resettlement programmes because of financial constraints and the terms and conditions of the Lancaster House Agreement regarding the willing seller willing buyer principle. There were serious economic challenges in the decade 1990 to 2000, but the period post 2000 witnessed brisk land repossessions which were spearheaded by war veterans and politicians. At the heart of the “land invasions,” as they were popularly termed, lay historical injustices. This paper seeks to provide an insight into the centrality of the oral tradition or oral history as legal basis for the land repossessions that took place. Neither legal recourse nor visiting archives and other information centres for the purposes of authentication were a priority. The Lancaster Constitution was viewed as an obstacle when dealing with land. The National Archives of Zimbabwe is placed in context within the situation discussed.

The issue of decentralization in Zimbabwe’s local government system has been topical since the colonial era. In the post-independence epoch the expectation was that the new majority government would address the centralization of governance which was motivated by racial imbalances. However, decentralization was not achieved as local government was not recognized in the Lancaster House Constitution adopted at independence in 1980. For years this allowed the central government to control all the local government structures in the country. The relationship between local governments and the central government became bitter and tense after the formation of a formidable opposition, MDC, which has been controlling most urban local authorities since its formation. The 2013 Constitution has not improved things either as the central government has not been willing to implement the new law to its latter and spirit. In all this it is the citizens who have been bearing the brunt as there has been poor service delivery owing to the bad relationship between the center and local structures. The study found out that if decentralization is fully implemented in Zimbabwe it has the potential of bringing efficient and effective service delivery, citizen participation, democracy and accountability in the local government system. The paper also makes recommendations on what needs to be done to achieve decentralization in the country’s local government system.

Historically, health care in Zimbabwe was provided primarily to cater to colonial administrators and the expatriate, with separate care or second-provision made for Africans. There was no need for legislation to guarantee its provision to the settler community. To address the inequities in health that had existed prior to 1980, at independence, Zimbabwe adopted the concept of Equity in Health and Primary Health Care. Initially, this resulted in the narrowing of the gap between health provision in rural areas and urban areas. Over the years, however, there have been clear indications of growing inequities in health provision and health care as a result of mainly Economic Structural Adjustment Policies (ESAP), 1991–1995, and health policy changes. Infant and child mortality have been worsened by the impact of HIV/AIDS and reduced access to affordable essential health care. For example, life expectancy at birth was 56 in the 1980s, increased to 60 in 1990 and is now about 43. Morbidity (diseases) and mortality (death rates) trends in Zimbabwe show that the population is still affected by the traditional preventable diseases and conditions that include nutritional deficiencies, communicable diseases, pregnancy and childbirth conditions and the conditions of the new born. The deterioration of the Zimbabwean health services sector has also partially been due to increasing shortages of qualified personnel. The public sector has been operating with only 19 per cent staff since 2000. Many qualified and competent health workers left the country because of the unfavourable political environment. The health system in Zimbabwe has been operating under a legal and policy framework that in essence does not recognize the right to health. Neither the pre-independence constitution nor the Lancaster House constitution, which is the current Constitution of Zimbabwe, made specific provisions for the right to health. Progress made in the 1980s characterized by adequate financing of the health system and decentralized health management and equity of health services between urban and rural areas, which saw dramatic increases in child survival rates and life expectancy, was, unfortunately, not consolidated. As of 2000 per capita health financing stood at USD 8.55 as compared to USD 23.6, which had been recommended by the Commission of Review into the Health Sector in 1997. At the beginning of 2008 it had been dramatically further eroded and stood at only USD 0.19 leading to the collapse of the health system. Similarly, education in Zimbabwe, in addition to the changes it has undergone during the different periods since attainment of independence, also went through many phases during the colonial period. From 1962 up until 1980, the Rhodesia Front government catered more for the European child. Luckily, some mission schools that had been established earlier kept on expanding taking in African children who could proceed with secondary education (high school education). Inequity in education existed when the ZANU-PF government came into power in 1980. It took aggressive and positive steps to redress the inequalities that existed in the past. Unfortunately, the government did not come up with an education policy or philosophy in spite of massive expansion and investment. The government had cut its expenditure on education because of economic and political instability. This has happened particularly in rural areas, where teachers have left the teaching profession.

In the historiography of British imperialism, the role of the ‘man on the spot’ has been identified as an important impulse to the imperial project, and as a key instigator of decision making. Equal attention should be directed to assessing the contribution of ‘the man on the spot’ in the final unravelling of empire. Old fashioned diplomacy and diplomats should not be airbrushed from history as key individuals navigated the rocky terrain of decolonisation. The fraught negotiations at Lancaster House on Rhodesia-Zimbabwe's constitutional arrangements for independence between September-December 1979 were only part of the delicate process of resolution of the intractable UDI problem. The four months of Christopher Soames’ administration as the last British Governor comprised the second vital stage of implementation, particularly given the presence of four competing armed forces in Rhodesia at the time, all of whom had external backers.

Philosophiae Doctor - PhD
Since its conquest by Britain in 1890, Zimbabwe has witnessed a series of constitution-making projects. Spanning over 100 years, the question of constitutional development has continued to dominate public debate. The end of colonial rule did not see an end to the demand for a constitution that is legitimate and durable. The search for an enduring and good constitution continued into the 21st century. With the unveiling of the 2013 constitution-making project, however, it seemed as if a long lasting solution had been 'delivered' on the question of a legitimate and durable constitution. The thesis assesses the questions of institutions and processes in Zimbabwe’s quest to construct a new constitution. It contends that institutions and processes used to make constitutions are as important as the contents of a final constitution. That is why more time and efforts are often spent negotiating the twin questions of institutions and processes of constitution-making than is spent negotiating the content of a constitution. With this in mind, the thesis develops standards for assessing institutions and processes used in successive constitution-making projects in Zimbabwe. A major finding of the assessment is that the twin questions of institutions and processes were neglected in all constitution-making efforts undertaken in Zimbabwe, including that which culminated in the creation of the Constitution of 2013. The thesis maintains that a lot of significance must be attached to the design of institutions and processes of constitution making if a constitution is to be enduring and widely accepted as legitimate.