What is a people driven Constitution

“People must write their own constitution directly, not through politicians, parliamentarians or government. The surest way to make sure that a constitution is respected is if it is written by the people themselves and carries their word,” Madhuku is quoted to have said after the signing of the Global Political Agreement. (Hereafter GPA)

Zimbabwe is on the verge of rewriting a new constitution in line with a provision included in the GPA agreement. The current constitution is a product of the Lancaster house talks in the United Kingdom in 1979. The current constitution of Zimbabwe has been amended a total of 19 times. This is clear evidence that it has outlived its usefulness and it now ceases to be relevant in its constitution as the supreme law of Zimbabwe.
Article six (6) of the GPA provides for the rewriting of the constitution by the people of Zimbabwe. To be precise it says:
Acknowledging that it is the fundamental right and duty of the Zimbabwean people to make a constitution by
themselves and for themselves; Aware that the process of making this constitution must be owned and driven by
the people and must be inclusive and democratic; Recognising that the current Constitution of Zimbabwe made
at the Lancaster House Conference, London (1979) was primarily to transfer power from the colonial authority
to the people of Zimbabwe; Acknowledging the draft Constitution that the Parties signed and agreed to in
Kariba on the 30th of September 2007.

In the spirit of the above, parliament is due to appoint a select committee composed of members of all the governing parties in Zimbabwe to draft a new constitution based on the Kariba draft. In fact Article 6, subsection 1 of the GPA States that the:

The Parties hereby agree :( a) that they shall set up a Select Committee of Parliament composed of representatives of the Parties whose terms of reference shall be as follows:
(I) to set up such subcommittees chaired by a member of Parliament and composed of
members of Parliament and representatives of Civil Society as may be necessary to assist the
Select Committee in performing its mandate herein;
(ii) to hold such public hearings and such consultations as it may deem necessary in the
process of public consultation over the making of a new constitution for Zimbabwe;
(iii) to convene an All Stakeholders Conference to consult stakeholders on their representation
in the sub-committees referred to above and such related matters as may assist the committee
in its work;

The above provisions to my understanding where made in the context of the principle of representative democracy. The principle of representative democracy provides that elected individuals through elections or some other democratic process are elected to stand in a particular office on behalf of the people who have elected them. What this means is that, whatever those officials do, is now being done on behalf of the people.

In the context of the Zimbabwean situation, the members of parliament currently in place are a product of the last plebiscite and hence represent the people of Zimbabwe. Many representative democracies chose their representatives in elections, Zimbabwe included. Also representatives may sometimes hold the power to select other representatives for example presidents or other officers of government. In Zimbabwe the president and prime minister they themselves elected representatives hold the power to appoint other public officials on behalf of the people who elected them. The appointment of Senate members in the reserved category, permanent secretaries and the appointment of members of the judiciary is an example of the use of these powers coming from the people.

The concept of a people driven constitution must be taken in the context of elected representatives doing what they were elected to do. That is rewriting a new constitution as they were directed by the people of Zimbabwe.
The people are taken to have passed this instruction at the point of contact with their representative. This normally occurs during election campaigns and when the elected representatives go back to their constituencies.

The words “a people driven constitution” are merely high sounding words that do not have a bearing on the reality on the ground. There is no such thing as a people writing their own constitution. It is merely not practical, let alone feasible. These words are meant to make the person who says them sound good at the expense of a gullible electorate.

The fact that the electorate have mandated their chosen representatives to rewrite the constitution of Zimbabwe does not mean that they will use their new found powers to foist their own ideals, principles on the people of Zimbabwe. That is where the referendum principle will come in.

A referendum is a democratic process which seeks to take on board the views and sentiments of the electorate regarding an issue(s) of national importance. If for any reason the select committee mandated to rewrite our constitution deviates and fails to deliver “a people driven constitution” then the people of Zimbabwe will reject that document as what happened in February 2000.February 2000 saw the defeat of a proposed new Constitution of Zimbabwe which had been drafted by a constitutional convention in 1999.


In the light of the above I struggle to understand what the good doctor meant when he said the people should write their constitution directly. Not through Politicians or Parliamentarians. What I think should be uppermost in the minds of our people is how we can add value to the Kariba constitutional draft.

We are after all as citizens, stakeholders in the rewriting of the new Zimbabwe constitution through our elected representatives. We need to now begin to lobby the same representatives to include our various views in our supreme law. After all we are the citizens that will be governed by that law at the end of the day.

The writer Lloyd Msipa writes from the United Kingdom. He can be contacted at lmsipalaw@googlemail.com. Read more from Lloyd Msipa at http://www.lmsipa.com

The Short Term Emergency Response Programme (STERP), the pros and cons

The Short Term Emergency Response Programme (STERP) launched by President Robert Mugabe and the finance Minster Tendai Biti in the last few days is a welcome effort in an attempt to get Zimbabwe as a country working again. Its reference to fundamentals that include Political and Governance issues, social protection, democracy, respect for property rights, rule of law, the redistribution of power among the genders among other principles it seeks to espouse makes it useful as a working document.
The document also makes reference to stabilisation of the economy by targeting inflation, by way of increasing agriculture and industrial output.
The document also seeks to deal with the issues of national healing and nation building. The document also recognises that apart from the travel bans placed on some of the leaders in government, sanctions are in place that prohibit international financial institutions from making any dealings with Zimbabwe, let alone extending any credit facilities that would have allowed the country to borrow in order to finance none humanitarian projects that will in turn impact positively on the economy, hence growth.

The document sets out the position of the government with regard to the sanctions in place. In this light representations are being made to the Americans with regards to the Zimbabwe Democracy and Economic and Recovery Act (ZIDERA), to International Financial Institutions like the IMF, World Bank, AFDB, and the European Union and also to our former coloniser the United Kingdom.
The document further outlines its policy considerations, as it seeks to get Zimbabwe working again. It extensively looks at areas such as health, social issues among many others. The bill for funding this programme between now and December will be US 5billion dollars. Acknowledgement is made of the recession and its impact on liquidity and borrowing and its attendant impact on remittances from Zimbabweans in the Diaspora, who have also found the going tougher due to the recession.

However, what the document does not address is what will happen in the event of the various institutions being approached refuse to play ball. What is our plan B in the event that America, Europe and the various lending institutions refuse to extend to Zimbabwe any form of credit as is the case now.
Within 24 hours of the announcement of the STERP programme by both the finance Minister and president of Zimbabwe, the Americans where the first to respond negatively and stating in no uncertain terms that they were not ready to engage Zimbabwe despite the inclusive government in place, lift the sanctions currently in place on Zimbabwe, let alone extend any form of assistance to the country that is not humanitarian.
The European Union also parroted the Americans and refused to recognise the authenticity of our inclusive government and hence will not be extending any form of assistance that goes directly to our national coffers . The IMF team that was in Zimbabwe in the last few weeks also placed conditions that include the payment of arrears before any form of assistance can be extended to Zimbabwe among other conditions.
Considering the foregoing, were does this leave us. Where does this leave STERP. Maybe we need to be more inclusive in our approach to fixing Zimbabwe. STERP seems overly reliant on Zimbabwe getting money from our traditional lenders. Is it not possible that our traditional lenders are currently grand standing? They are giving us the traditional run around by repeatedly pointing to our ‘flawed’ inclusive government as the main reason they will not fund us. Is it not possible that America and Britain do not genuinely have the money to fund us and will not say so?
America recently unveiled an inward looking stimulus package that seeks to jump start the American economy by creating jobs in America at the expense of the rest of the global village. American companies that had relocated to third world countries where labour is cheaper are currently being encouraged to relocate back to America as a way of job creation. The United Kingdom is also seeking to address the economic crisis which has seen 2 million people lose their jobs over the last few months by redrafting the immigration laws hence discouraging any new entrants in to the British job market.

The approach of the economic giants in the west is all inclusive. They seek to first look after their own before they consider anyone else.

It is in the back drop of these developments in the global village that I find it very myopic for us in Zimbabwe to seek to address our economic woes by relying on economies that are themselves in serious trouble.
It is not being pessimistic to state that we are virtually on our own. No amount of pleading, it seems will take us out of our troubles. If we were asking for US 5 Billion a few years back, then the outcome would have been different. The most we should expect by way of assistance is the humanitarian aid which I understand has increased since the formation of the inclusive government. A few dollars may trickle in from our Nordic friends, SADC and the AU and then that will be about it.
Realistically speaking the STERP programme is an excellent programme if funding was forth coming from our traditional lenders. The reality on the ground seems to suggest otherwise. We need to adapt an all inclusive economic recovery programme that seeks to address our problems using the naturally resources we have in Zimbabwe as the only or primary resource base. We need to aggressively resuscitate the agricultural industry without being overly reliant on external funding. We need to get our mines to produce to sell to countries that will do business with us. We need to get the diamond, gold, asbestos, coal and other mines to produce to levels that will sustain our requirements.
Despite the recession in the global world, I will also propose that the inclusive government leverages the Zimbabweans in the Diaspora as a primary resource for recapitalizing our coffers. Countries like Nepal rely almost 100% on Nepalese migrant workers to keep their economy going. Considering that Zimbabwe has started a new chapter through the formation of the inclusive government, Zimbabweans in the Diaspora must now be geared at nation building as opposed to the traditional bickering we had grown accustomed to.
The ideas expressed in this article are not exclusive and should not be regarded as a policy proposal or a critique of the efforts of the Finance Minister. They should be simply be a guide that I hope will instigate debate amongst us Zimbabweans to start to critically look at ourselves, our situation, our country with a view to nation building against the background of a global recession. It is only us who can make a difference to our country by coming forward with ideas that will be provide the inclusive government with a wealth of ideas to draw from. We need to come up with any economic programme that takes into consideration the prevailing economic challenges both at home and abroad.

The writer Lloyd Msipa, writes from the United Kingdom and can be contacted at lmsipalaw@googlemail.com

Zimbabwe Unity Government needs to set up a Truth and Reconciliation Commission

The Zimbabwe coalition government is now a month old and it continues to grow stronger each day despite the attacks it receives from those who had vowed this day will never come. Justina Mukoko and the other political activists are now out of prison leaving those who were using their continued detention to vilify the unity government clutching on straws. To cap it all the agricultural Deputy Minister designate Roy Bennett was released on bail a few days ago.

Upon his release Roy Bennett is quoted as having said, “I bear no malice. In my heart, all I can do is move forward to build the country. If we don’t forgive and there isn’t a spirit of forgiveness, we are going nowhere. There are people who don’t want right to prevail and want to keep believing they have the power to do anything. But they are few and their time is near the end.”
These words are instructive. It is time that Zimbabweans took back their pride and stop the wanton destruction of the country at home and abroad and begin the audacious task of rebuilding Zimbabwe, both black and white. The Prime Minster of Zimbabwe, Morgan Tsvangirai in his parliamentary inaugural speech also called for Zimbabweans to move away from the politics of hate and violence and begin to rebuild. He said the days of police violently breaking up demonstrations and needlessly arresting people had to come to an end.

The President of Zimbabwe, Robert Mugabe , at the funeral of the late retired Army General Vitalis Zvinavashe also called for the end of violence between the main political party supporters in the various provinces. "We were fighting among ourselves, brother versus brother ... but we've realised our folly. Let us walk the same road. We formed this inclusive government to bring stability, peace and harmony."Violence must stop," Mugabe said. "We have heard reports of renewed violence, that must stop. Yes, we belong to different parties, but let's not fight. Those who persist with acts of violence are the enemies of Zimbabwe," President Mugabe said

Whilst the call for the end of violence is commendable, the time it seems has come for us to ask ourselves some hard questions and of course we need to deal with attendant hard answers. Following years of violence between the main contending parties, the cause which is attributable to both parties seeking advantage over the other on the political popularity continuum. We now need to address the causes and effects of these on our citizens before it is too late. Zimbabwe needs a Truth and Reconciliation commission, perhaps modelled on the South African one.

The success and failure of our unity government may just come back to haunt us if we do not as a nation face the hard questions that are starring us in the face by way of a Truth Commission. The sporadic incidents of violence that are taking place in various parts of our country are symptomatic of a much bigger problem. There is an urgent need to establish a Truth Commission to look into the atrocities that have taken place in the last ten years or so.

“Truth Commissions” refers to appointed officials mandated to look into past atrocities or historical injustices. It is a generic name to public inquiries. Truth Commissions are often established after a democratic government has succeeded a repressive one or as in our case when a long running dispute between the various political players has resulted in the death and injury of the country’s citizens and then the parties finally put aside their differences in favour of nation building.
The citizens of Zimbabwe are happy that Zimbabwe has an inclusive government in place. But at the same time they are angry that the long road that brought us to where we are today is littered with broken dreams, separated families dead and maimed bodies.
A Truth Commission will play a critical role in our country as we struggle to come to terms with the past, mired with massive human rights violations. Criminal sanctions for past human rights atrocities will not necessarily resolve the issues of past human rights abuses as I have alluded to in previous postings.
The Truth commission we should set up must have an implicit mandate or a term of reference that is designed at rebuilding the country and strengthening the all inclusive government currently in place. In other words the mandate for the Truth Commission needs to be all inclusive. It must concern itself with all citizens including those that are in positions of authority.
For example it is common knowledge that the Zimbabwe security apparatus has adapted a look warm attitude towards the all inclusive government formed between ZANU PF and the two MDC’s. There is a probable valid reason for this. Zimbabwe is a country coming out of internal conflict and strife. The enemies of the people of Zimbabwe have been hard at work to a point that we turned against each other. One simply needs to look at previous engagements between the MDC and ZANU PF in the last elections to realise this. In the Diaspora Zimbabwe news websites and internet chat rooms were places of war between those purporting to be supporting their various causes. Incidentally some to date have not evolved in the spirit of inclusiveness. In South Africa our brothers and sisters are not entirely convinced as to how genuine our inclusive government is. What it stands for and were it is going.
It has taken the intervention of SADC and the then President of South Africa, President Thabo Mbeki to make us realise that we are our own liberators and it is only us who can begin the process of rebuilding our country. The security apparatus is the last line of defence and hence there is a need for them to stand aloof and watch until Zimbabwe convinces them that it is time to make that symbolic salute.
It is therefore imperative for the Truth Commission to be established to look all the reasons the security apparatus is holding out and address these issues. In other words our Truth Commission must mirror our needs as a people and the needs of government. The Truth Commission must have a goal of national reconciliation attached to it, but must not compromise on the issues of disappearances, atrocities committed by all the political players in Zimbabwe. Our target must be national reconciliation.
Another overriding reason we need to set up this Truth Commission is simply to correctly codify the history of our country taking into consideration the various political realities that exist on the ground. Our failure to do this will result in our history been written by the enemies of Zimbabwe which in turn will translate into more hate for generations to come as our children continue to be foisted with half truths and untruths.
The issue of amnesty must also be built into the goals of this Truth Commission for those that come forward with harrowing testimonies. The South African Truth Commission was one of the few hybrid truth commission that offered amnesty in exchange for full and public testimonies of the atrocities that took place.
Our Truth Commission must modelled on it and be given sufficient powers to refer cases that are excessively bad to a committee set or compromising of members from both the two MDC’s and ZANU PF. These committees must be a product of an act of parliament and should have the power to refer cases to our domestic courts for possible prosecution. Our Truth Commission must be “victim centred” this way it is my humble submission, the only way we can make a clean break with the past and start again. An attempt to ignore or suppress the current pockets of sporadic violence occurring around the country may have disastrous consequences for future generations. The establishment of Truth Commission would be the beginning of true national healing and a prosperous future for Zimbabwe.
The writer Lloyd Msipa writes from the United Kingdom. He can be contacted at lloyd@lmsipa.com. Read more from him at http://www.lmsipa.com.

Demystifying the Zimbabwe SADC Tribunal Ruling-Lloyd Msipa

High Court Judge Anne-Mary Gowora on Wednesday the 6th of March 2009 ruled that the Southern African Development Community Tribunal (hereafter the SADC Tribunal) is not superior to the courts of the individual SADC member countries. This decision nullified a SADC Tribunal ruling made in favour of Richard Etheredge and others. Etheredge a former white Zimbabwean farmer had his farm acquired by the government of Zimbabwe under The Land Reform act. In particular under section 16B of the Constitution of Zimbabwe (Amendment No 17, 2005) hereafter referred to as amendment no 17.

The case brought to the High Court by Richard Etheredge had become a source of controversy both home and abroad. The applicants among other things were seeking an enforcement order of the SADC Tribunal Order that ruled that the Zimbabwean Government had violated its Treaty obligations under SADC by enacting a law (Amendment no 17) that ousted any challenge in the national courts by its citizens or other legal persons after their land had been acquired under amendment no 17.
The Tribunal also ruled that all the land belonging to Richard Etheredge and others who were party to this application had been unlawfully acquired by the Government of Zimbabwe since the Minister who carried out the compulsory acquisition had failed to establish objective criteria in order to satisfy himself that the land to be acquired was necessary for resettlement purposes in conformity with the land reform programme.
Richard Etheredge and others also claimed they had been denied access to the national courts to challenge the legality of the compulsory acquisitions and that they suffered racial discrimination since they were the only ones who had their land acquired under the land acquisition act and that they had been refused compensation for the land taken from them.
The applicants were therefore seeking an order that declared that the Government of Zimbabwe was in breach of its Treaty obligations under the SADC Treaty by implementing Amendment 17 and hence the acquisition of their land was illegal.
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The Government of Zimbabwe respondent by arguing that the SADC Tribunal had no jurisdiction to entertain the application brought by Richard Etheredge and others as the premises of the land reform was on a willing seller and willing buyer basis and that the land was to be purchased from the white farmers who by virtue of colonial history were in possession of most of the arable land in Zimbabwe.
The government of Zimbabwe further argued that land acquisition was an ongoing exercise and that it continues to acquire large tracts of land from white farmers who because of circumstances brought about by the country’s colonial history so happens to be possession of most of the land. The government argued that this policy cannot surely be misconstrued as racism.
The government of Zimbabwe went on further to state that some black farmers have also had their land acquired under the land reform exercise and that the white farmers would receive compensation under the land reform act as provided for in the law.

Further to this, the land reform exercise was directed at rectifying a colonial imbalance that has existed for centuries and it so happened that the applicant’s farms were suitable for the envisaged resettlement exercise. The argument that the white farmers were not getting access to local courts was unfounded. If at all they had issues with the courts it was up to the applicants to apply for judicial review the government added.

After consideration of the above arguments the SADC Tribunal had to decide on a number of issues. Firstly whether the Tribunal had jurisdiction to entertain the application brought by Richard Etheridge and others. Whether they had indeed been denied access to the national courts in Zimbabwe and therefore denied a local remedy. Also at issue were whether or not the issue of racism had indeed been a factor in the acquisition of their farms and whether or not the compensation was forth coming.

With regards to the issue of jurisdiction the SADC Tribunal cited Article 9 as the enabling provision in the SADC Treaty that created the Tribunal as an international organisation with its functions clearly outlined under Article 16.They are to ensure adherence to the Treaty provisions when it came to dispute among member states. The bases of jurisdiction among others are all disputes and applications referred to the Tribunal in accordance with the Treaty and the Protocol which relate to the interpretation and application of the Treaty.

The scope of the jurisdiction is stated in Article 15 sub-section 1. That is to adjudicate upon “disputes between states and natural and legal persons and states” In terms of Article 15, sub section 2, “no person may bring an action before the SADC Tribunal without first exhausting all available remedies or unless is unable to proceed under the jurisdiction of such a state.

Richard Etheredge and others commenced their proceedings initially in the Zimbabwe Supreme Court. The highest court in the land challenging the acquisition of their farms. Their claim among others was that Amendment 17 obliterated their right to equal treatment before the law, to a fair hearing before an independent and impartial court and their right not to be discriminated on the bas

On October 11, 2007, before the Supreme Court had issued its judgement, some of the applicants applied to the SADC Tribunal for interim relief. The Government of Zimbabwe raised this matter with SADC Tribunal as to whether the applicants had followed procedure and exhausted all the legal remedies provided for in domestic courts.

The concept of exhaustion is not unique to the SADC Tribunal as it is standard in other regional and international conventions. In the European Convention on Human rights Article 26 provides “The Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally excepted rules on International law” Similarly the African charter on Human and Peoples rights provides in Article 50 “The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving the remedies would have been unduly prolonged”. The Tribunal accepted the requirement of exhausting the local remedies in national courts as paramount before approaching the SADC Tribunal. The rationale used was to allow domestic courts to first deal with what is regarded as a local matter before escalating it to the SADC Tribunal.

In deciding on this matter the SADC Tribunal concluded that amendment 17 as a law in Zimbabwe ousted the provision of using local remedies when it came to the issue of land acquisitions and therefore the applicants who applied directly to the SADC Tribunal for relief argued they were not able to institute proceedings before Zimbabwe’s national courts. This position was subsequently confirmed by the decision of The Supreme Court given on February 22, 2008 in Mike Campbell (Pty)Ltd v Minister of National Security Responsible for Land, Land Reform and Resettlement (SC 49/07).

The Tribunal also referred to Article 14 (a) of the Protocol, and observed That Amendment 17 had indeed ousted the jurisdiction of the courts of law in Zimbabwe. The next issue to be decided was whether or not the Applicants have been Denied access to the courts and whether they had been deprived of a fair hearing by Amendment 17.It is settled law that the concept of the rule of law embraces at least two fundamental rights, namely, the right of access to the courts and the right to fair hearing before an individual is deprived of a right, interest or Legitimate expectation. As indicated already, Article 4 (c) of the Treaty Obliges Member States of SADC to respect principles of “human rights, Democracy and the rule of law” and to undertake under Article 6 (1) of the Treaty “to refrain from taking any measure likely to jeopardize theSustenance of its principles, the achievement of its objectives and the
Implementation of the provisions of the Treaty”. Consequently, Member States of SADC, including the Government of Zimbabwe, are under a legal obligation to respect, protect and promote those twin fundamental rights.

The right to a fair hearing before an individual is deprived of a right, interest or legitimate expectation is another principle well recognized and entrenched in law.
Any existing ouster clause in terms such as “the decision of the Minister shall not be subject to appeal or review in any court” prohibits the court from re-examining the decision of the Minister if the decision reached by him was one which he had jurisdiction to make. Any decision affecting the legal rights of individuals arrived at by a procedure which offended against natural justice was outside the jurisdiction of the decision-making authority so that, if the Minister did not comply with the rules of natural justice, his decision was ultra vires or without jurisdiction and the ouster clause did not prevent the Court from enquiring whether his decision was valid or not

The Tribunal found in favour for the applicants in that they had been expressly denied the opportunity of going to court and seeking redress for the deprivation of their property, giving their version of events and making representations.
“We are, therefore, satisfied that the Applicants have established that they have been deprived of their agricultural lands without having had the right of access to the courts and the right to a fair hearing, which are essential elements of the rule of law, and we consequently hold that the Respondent (The Government) has acted in breach of Article 4 (c) of the Treaty.

The issue of racial discrimination was dismissed by the SADC Tribunal. It was found that amendment no 17 was not discriminatory in its approach because it so happened that white Zimbabwe farmers where in the unique place of being targets of acquisition as a result of a historical imbalance. “The Respondent has, therefore, not discriminated against white
Zimbabwean farmers and has not acted in breach of Article 6 (2) of the Treaty.

The applicant also raised the issue of compensation. The Zimbabwe Government argued that Britain the former colonial power was responsible for compensating the land. It argued that the independence agreement reached in 1978 in London provided that payment of compensation for acquired land for resettlement purposes would be paid by the former colonial power.

The SADC Tribunal disagreed and held that The Payment of compensation was an international law obligation and therefore it refuted the position of the Zimbabwe government of relying on amendment no 17 which provides for compensation on improvements on the land only.

The SADC Tribunal final decision concluded for the reasons given above that the Zimbabwe Government had been in breach of its SADC Treaty obligations and that the Zimbabwe Government should take all necessary steps to correct these breaches and that amendment number 17 was in breach of the SADC Treaty

It is this decision that came before the High Court brought by Former White farmer Richard Etheredge who was seeking to enforce the SADC ruling to evict the land reform beneficiary, President of the Senate Edna Madzongwe. The judge reasoned that although Zimbabwe signed the SADC Treaty that established the court, the treaty does not expressly state that the tribunal is to be considered the superior court for all member states.

The decision by the High Court Judge Anne-Mary Gowora is instructive. It brings a new dimension to the SADC Tribunal ruling. It suggests that Zimbabwe was not bound by the decision of the SADC Tribunal for the reasons she outlined and a whole lot more. It is this decision I propose to interrogate briefly and in the process add my own reasons why I think her decision is instructive.

Whenever a country signs up to a Treaty, the potential always exists in national law that the incoming Treaty laws might contradict or be in conflict with a national law. This was the case in the above matter. There is no provision in the Constitution of Zimbabwe giving supremacy to any foreign law. In fact in the case of Zimbabwe the Constitution is the supreme law.

.Any law that is not consistent with the Constitution is void at law. The SADC Tribunal held that amendment no 17 to the Constitution of Zimbabwe violated Zimbabwe’s Treaty obligations. Zimbabwe signed the SADC Treaty. By enacting amendment no 17, Zimbabwe demonstrated its parliamentary sovereignty. It demonstrated that SADC law has no direct effect on Zimbabwean law.
To this end SADC member states upon signing up to the SADC Treaty, they were supposed to cede part of their sovereignty to SADC. Make provision for SADC laws to have a direct effect on member states in the process empower the SADC institutions to adopt laws. These laws (regulations, directives and decisions) would take precedence over national law and are binding on national authorities in member states.

To demonstrate this concept, the European Union model is the most ideal example. By signing to the European communities act of 1973, it did not immediately mean that the United Kingdom would obey all laws coming from Brussels. The United Kingdom had to pass an enabling legislation hence incorporating European law into United Kingdom domestic law; Zimbabwe has not passed any enabling legislation ceding parliamentary or constitutional sovereignty to SADC.

In 1972, the UK a signed the Treaty of Rome in Brussels. European law was incorporated into UK law by the European Communities Act 1972. Perhaps the most important provisions are set out in sections 2 and 3.
Section 2(1) of the European Communities Act 1972 states that:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies.
Section 2(2) provides a general power for further implementation of Community obligations by means of secondary legislation.
Section 2(4) of the European Communities Act 1972 states that:
The provision that may be made under subsection (2) above includes, subject to schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section.
Section 3(1) of the European Communities Act 1972 states that:
For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto).
The effect of section 2 is that European law must be considered to be a valid and binding source of UK law. Where European law exists on a particular subject (at least if set out in the Treaties or in Regulations), it can override any inconsistent UK law - including Acts of Parliament. In this way the doctrine of parliamentary sovereignty is compromised.
SADC member states have not ceded any power over its national institutions to SADC. It then begs the question whether a treaty signature amounts to a SADC law that will have a direct effect on SADC member states without any enabling legislation in the relevant member state?
Because of the different legal traditions followed in SADC member states it would seem logical to have an enabling legislative provision over and above signing and ratifying the SADC Treaty. The decision in the High Court of Zimbabwe seems to suggest that any enabling legislation is required for the SADC Tribunal to demonstrate the kind of authority it showed when it ruled against a member state. There is a requirement for the Zimbabwean government to consent by way of legislating in parliament ceding the requisite authority to SADC to make laws that have a direct effect on national institutions in Zimbabwe. As the laws stand today in Zimbabwe or any other SADC member state, the SADC Tribunal is a white elephant capable only of giving advisory opinions which are not binding to member states as demonstrated by Zimbabwe.

Lloyd Msipa writes from the United Kingdom. He can be contacted at lloyd@lmsipa.com. His website is http://www.lmsipa.com/