John Hatchard

The Constitution of Zimbabwe: Towards A Model for Africa?

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.

Reporting Under International Human Rights Instruments by African Countries

In an address to the U.N. Commission on Human Rights on 31 January, 1994, the UN Under-Secretary-General for Human Rights stressed that the ratification of human rights instruments and die effective implementation of their provisions is fundamental in a world that aspires to the rule of law and the safeguard of fundamental freedoms. This followed the adoption of a resolution by the General Assembly of the United Nations which reaffirmed that the effective implementation of the international human rights instruments is of major importance to the organization and urged all states that have not yet done so to become parties to the two International Covenants and to consider acceding to the Optional Protocols to the International Covenant on Civil and Political Rights.

The fall and rise of the cane in Zimbabwe

The legality of judicial corporal punishment is an issue which has caused considerable disagreement amongst jurists, legislators and criminal justice personnel, for its use has serious moral, constitutional and penological implications. In Zimbabwe, two decisions handed down by the Supreme Court together with a later constitutional amendment Act have highlighted the divergence of views on this matter. It is thus the intention of this article to examine critically the issue from a constitutional and penological perspective. In 1987 in S v. Ncube a full bench of the Supreme Court of Zimbabwe unanimously held that the sentence of whipping for adults contravened section 15(1) of the Declaration of Rights which is contained in the Constitution of Zimbabwe in that it constituted a punishment which in its very nature was both inhuman and degrading. In his seminal judgment, Gubbay, J. A., had regard to four factors, namely: (i) the current trend of thinking amongst distinguished jurists and leading academics; (ii) the abolition of whipping in many countries of the world as being repugnant to the consciences of civilized men; (iii) the progressive move of the courts in countries in which whipping is not susceptible to constitutional attack to restrict its imposition to instances where a serious, cruel, brutal and humiliating crime has been perpetrated; (iv) the decreasing recourse to the penalty of whipping in Zimbabwe, especially over the previous ten years and the declining number of laws on the statute book in which it remained a permissible penalty.

Combating transnational crime in Africa: problems and perspectives

Transnational crime is a major problem for African states with corruption, trafficking of persons, drugs trafficking, environmental crime and the like posing a major threat to development and stability. This article examines three challenges that states must tackle in order to combat transnational crime effectively. The first is how to deal with criminals who operate outside the jurisdiction. The second concerns the investigation of crimes with a transnational element. The third challenge involves tracing and then recovering the proceeds of crime that have been moved out of the country where the crime occurred. Here the need for Western states to cooperate with those in Africa is highlighted. Drawing on examples from Lesotho and Nigeria in particular, it is argued that some progress is being made in meeting these challenges. However, the article notes that developing the political will to tackle transnational crime is fundamental to any lasting improvement.

Detention Without Trial and Constitutional Safeguards in Zimbabwe

There comes a time during the life of almost every nation when situations arise which threaten its peace and security. At such a time the government may need to acquire certain additional powers to help it combat the danger and this is frequently achieved by the declaration of a state of emergency. This enables it to utilise wide-ranging emergency powers and in this situation national security and public order considerations are placed above the constitution. As a result, among the first casualties of an emergency proclamation are the guarantees of personal liberty and protection of the law which are often abrogated or at least severely curtailed. The use of detention without trial during periods of emergency has now become commonplace,2 particularly in developing countries, a point which is defended by President Nyerere of Tanzania on the grounds that: