LLM / Department of Public Law / The defining moment of Zimbabwean constitutional reform came in 2008 after the disputed and violence riddled elections of 2008 when the three main political parties entered into a transitional Government of National Unity and were tasked with the establishment of a new constitution which was ultimately adopted in 2013 following a protracted and turbulent process which began in 2009. Some segments of the civil society however argued that the concerned political parties had ‘captured the constitutional project and narrowed it to a short-term struggle motivated by the pursuit of party political interests at the expense of the will of the people and nation’s broad long-term interests’, and thereby subverted and/or negated the aspirations of the people. It is against this background that the study therefore assesses the participation, role and significance of the rural populace in the drafting of the 2013 Zimbabwean Constitution. The study traces the history of constitutional reform efforts in Zimbabwe, beginning with the colonial Lancaster House Constitution of 1979, to the protracted exercise of 2009 to 2013 which gave birth to the current Constitution. It focuses on the 2009-13 constitution making process as a case study. The study employs an interdisciplinary approach by adopting both doctrinal and empirical research approaches. The study employed the doctrinal research approach to provide for a doctrinal analysis of the relevant global, regional and domestic legislation and case law. The empirical research approach, through interviews, was used to collect qualitative data from the general members of the rural populace and key institutions such as political parties and human rights organisations from three selected rural districts, namely Bulilima, Makonde and Mutasa. The study indicated that while a significant number of the rural populace participated in the constitution making process, the legal environment which subsisted during the constitution making process did not allow for the unfettered flow of information and ideas, as a direct result of repressive legislation such as AIPPA, Criminal Law (Codification and Reform) Act, Interception of Communications Act and POSA, among others similar laws, and as well as the deeply polarised political environment owing to the nature of the relationship between the ZANU PF-led government and the opposition political parties. The study further showed that the process was heavily dominated by the political parties to the Global Political Agreement and all the political parties wanted to ensure the adoption of a constitution that best reflected their preferences and partisan views rather than the will of the masses, making the 2013 Constitution an elitist negotiated document, contrary to the provisions of Article VI of the GPA which provided for the right of Zimbabweans to make a constitution for themselves and by themselves.

Na escrita de uma constituição é normativamente desejável o uso da razão e da imparcialidade na condução das deliberações constituintes. A capacidade dos constituintes de deliberar por meio de argumentos imparciais pode ser, todavia, influenciada por condições empiricamente não favoráveis. O caso da reforma agrária na Assembleia Nacional Constituinte brasileira de 1987-1988 oferece a possibilidade de verificar que, sob condições de forte pressão dos grupos de interesse e do valor simbólico da questão, o número de constituintes chamados a deliberar e votar é relacionado com a radicalização e polarização da questão. Se por um lado, o número menor de constituintes é mais vulnerável à pressão dos interesses e da narrativa simbólica, por outro, o número maior facilita a ação dos partidos, por meio das lideranças, como agentes de agregação das preferências e permite assim maiores possibilidades de mediar os interesses e convergir para uma solução consensual. / In the constitution-making process it is desirable that the constitutional representatives could deliberate with impartiality and the use of reason. The capacity of the constitutional representative to deliberate trough impartial arguments can be, nevertheless, influenced by empirical conditions not favorable to the process of consensus making. The case-study of the land reform in the Brazilian National Constitutional Assembly of 1987-1988 offers the chance to verify the hypothesis that, under the conditions of pressures by the interests groups and symbolization of the constitutional policy, the number of representatives affects the mechanisms of radicalization of preferences and behaviors. If on one side a reduced number of representatives facilitate the exposition to the pressure of radicalized interests groups and symbolization, on the other hand the increased number allows for more effectiveness of political parties as preferences aggregation agents . This means more chances of mediation and convergence to a shared solution.

This study explores with theoretical and practical challenges surrounding the roles of civil society organizations (CSOs) and participatory approaches in development and democratization processes in contemporary Africa. Through a grounded, contextualized analysis of a coalition of Zambian CSOs, the Oasis Forum, and its (dis)engagement with the ongoing constitution-making process, this thesis interrogates the possibilities and limitations of various conceptions of „popular participation? in efforts to open up potentially transformative spaces for citizen engagement. The case of the Oasis Forum complicates, enriches and challenges both liberal and critical narratives of civil society, and demonstrates that even within superficially liberal language and objectives, there can be efforts to advance, and articulate with, more far-reaching possibilities for social change. Though the constraints of neoliberal globalization fundamentally constrain the scope of Zambian economic and political self-determination, this work reveals the under-acknowledged radical potential of liberal conceptual and policy tools to challenge this hegemonic order. More grounded, nuanced theoretical approaches are required to address the mutually constitutive nature of hegemonic structures and the agential subjects struggling within and against them.

The primary focus of this study is the analysis of constitutional amendment-making processes following transitions from authoritarian regimes. Based on an extended longitudinal comparative case study of Chile and Turkey, the body of the work focuses on the experience of constitution-making during military rule and amendment-making following the transition to elected civilian governments. While both countries suffered a breakdown of democracy and ensuing new military-imposed constitutions, their amendment-making processes after the restoration of democracy were quite different. Chile developed a largely consensual approach while Turkey moved increasingly toward dissonance and confrontation. Extensive field research and personal interviews in both countries found that the procedural rigidity of amendment-making processes is insufficient to explain the extent and direction of constitutional change adopted under elected civilians after the transition from military rule (Chile in 2005, Turkey in 2010). Therefore a central feature of this study is the development of an analytical framework to explore both demand and supply side factors. This framework deconstructs the amendment making mechanism by examining such demand-side factors as shifts in the balance of power; societal forces and external actors; political, social and cultural context; characteristics of the constitution; and constitutional tradition. Supply-side factors addressed are the procedural and informal institutional elements, including the role of veto powers; informational constraints; and the content of the proposed amendments themselves. This dissertation contributes to the expanding literature on authoritarian constitutions and amendment-making processes and breaks new ground by systematically comparing the experience of Chile and Turkey, as key actors attempted to gradually amend their military-imposed constitutions. The different outcomes in these two cases, this study argues, were shaped by variations in historical context, the balance of power, the number of veto players, and different incentives for reform, i.e., the reassertion of democratic practices in Chile and a reactive response to political and constitutional crises in Turkey.

Na escrita de uma constituição é normativamente desejável o uso da razão e da imparcialidade na condução das deliberações constituintes. A capacidade dos constituintes de deliberar por meio de argumentos imparciais pode ser, todavia, influenciada por condições empiricamente não favoráveis. O caso da reforma agrária na Assembleia Nacional Constituinte brasileira de 1987-1988 oferece a possibilidade de verificar que, sob condições de forte pressão dos grupos de interesse e do valor simbólico da questão, o número de constituintes chamados a deliberar e votar é relacionado com a radicalização e polarização da questão. Se por um lado, o número menor de constituintes é mais vulnerável à pressão dos interesses e da narrativa simbólica, por outro, o número maior facilita a ação dos partidos, por meio das lideranças, como agentes de agregação das preferências e permite assim maiores possibilidades de mediar os interesses e convergir para uma solução consensual. / In the constitution-making process it is desirable that the constitutional representatives could deliberate with impartiality and the use of reason. The capacity of the constitutional representative to deliberate trough impartial arguments can be, nevertheless, influenced by empirical conditions not favorable to the process of consensus making. The case-study of the land reform in the Brazilian National Constitutional Assembly of 1987-1988 offers the chance to verify the hypothesis that, under the conditions of pressures by the interests groups and symbolization of the constitutional policy, the number of representatives affects the mechanisms of radicalization of preferences and behaviors. If on one side a reduced number of representatives facilitate the exposition to the pressure of radicalized interests groups and symbolization, on the other hand the increased number allows for more effectiveness of political parties as preferences aggregation agents . This means more chances of mediation and convergence to a shared solution.

Magister Philosophiae - MPhil / The South African negotiations process, in the true spirit of classical liberalism, emphasised juridical continuity, legality, and gradual political change. But in spite of this and the fact that South Africa’s constitution-making process is acclaimed as the most successful negotiated revolution, it is generally recognised that there is incongruity between the promise and hope brought about by South Africa’s constitution-making process and the political and social crises that ensued after the advent of constitutional democracy in the country. I argue in this analysis that the South African constitutional discourse must undergo a fundamental shift by abandoning the normative regulation of the constituent power of the people in order to allow for the people to truly govern. The acknowledgement of the possibility of the unregulated exercise of constituent power through people-driven initiatives can mitigate the current malaise facing South Africa’s constitutional democracy.

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.

"The writing of constitutions in Africa in the 1990s seems to have become fashionable after years of political wilderness following decades of one-party rule, military dictatorships and no-party regimes. African states engaged in the process of crafting new and democratic constitutions in search of democratic and legitimate governance based on the free will of the peoples, and to foster democratic traditions. Transition to democracy is a sacred undertaking, the challenge of which is to develop constitutional and institutional mechanisms in the hope of building viable and durable democratic values and practices that would guarantee political stability, peaceful and orderly change of government, the rule of law and the complete respect for human rights. Constitution-making must be seen as a means of bringing peace and creating a stable and prosperous African continent where the people take charge of the governance and their political and economic destiny in complete freedom. This study inquires into the extent to which this goal has been achieved, with particular reference to Swaziland and Uganda. Swaziland is the only absolute monarchy in the Southern Africa region after Lesotho adopted a democratic constitution in 1993, with the King becoming a constitutional monarch. Uganda has been operating under the Movement Political System (MPS) that, until recently, did not allow free political activity. ... The study is divided into five chapters. Chapter 1 focuses on the circumstances (context) and gives an overview of the organizational structure. Chapter 2 deals with the concepts and basic principles of constitutionalism, democracy, and human rights. Chapter 3 scrutinises the legislative mechanisms that set the process in motion and how the constiutional mandate was executed. The chapter considers the effect of the enabling legislation on ratification and implementation of the rights enshrined in the African Charter. It also looks at the role of civil society in influencing the process. To a limited extent, a comparative case study of other processes in Africa, especially the South African and Zambian experiences, is made. Chapter 4 is a discussion of human rights instruments providing for the right to participate; article 13 of the African Charter, article 25 of the International Covenant on Civil and Political Rights (ICCPR) as well as article 21 of the Universal Declaration of Human Rights (UNDHR). A discussion of the content and meaning of the right to participate in international law is made, focusing on the jurisprudence of the African Commission on Human and Peoples' Rights, as well as the jurisprudence of the Human Rights Committee (HRC). Chapter 5 is conclusions and recommendations." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005. / Prepared under the supervision of Dr. Henry Onoria at the Faculty of Law, Peace and Human Rights Centre, Makerere University, Kampala, Uganda / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

"While public participation in constitution-making is recognised under international law, its extent is not elaborated. This has resulted in governments pursuing constitution-making processes that, despite involving public participation, do not involve meaningful public participation. As shall be illustrated in this study, this is the dilemma faced in Zambia. Zambia has experienced constitutional instability since independence. It has had four constitutions since then, and is currently in the process of making its fifth. This will represent an average of a new constitution every eight years: one of the highest rates of constitutional change in Commonwealth Africa. This is an unimpressive record in so far as it is generally accepted that a constitution defines and limits the exercise of governmental power, and regulates major political activities in a country. It cannot, therefore, be frequently subjected to change like any other ordinary piece of legislation. ... This study constitutes five chapters. Chapter one introduces the study. Chapter two analyses the origins and nature of government and constitution. Chapter three examines and analyses the constitutional development process in Zambia from the pre-colonial period to the current time. In chapter four, the making of the current constitution of South Africa is duscussed and analysed. Chapter five provides the conclusion and recommendations." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2006. / Prepared under the supervision of Prof. Edward Kofi Quashigah at the Faculty of Law, University of Ghana, Legon / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Kenya has embarked on a constitutional making process that is hoped to ensure a transition to democracy. The Constitution of Kenya Review Act, 2008 provides a legal framework for the making of a new constitution. This research evaluates the current constitutional making process in Kenya and focuses on the process undertaken by the coalition government in Kenya and the extent to which the people of Kenya have been involved in the process. This study is important because the current coalition government in Kenya is expected to deliver a constitution before Kenya goes to elections in 2012. It is hoped that this study contributes to the constitutional making process that is currently underway in Kenya. It emphasis the argument that a people driven process is necessary if governments that have suffered political violence and instability are to become stable and inclusive. / A dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Dr. Yonatan Tesfaye Fessha, Unversity of Western Cape, South Africa. / LLM Dissertation (Human Rights and Democratisation in Africa -- University of Pretoria, 2009. / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM