Is it Time for the UK to have a Written Constitution?

“A constitution is not the act of government, but of a people constituting a government, and a government without a constitution is a power without right… A constitution is a thing antecedent to a government: and a government is only the creature of a constitution.”    Thomas Paine 1792

“If a constitution means a written document, then obviously Great Britain has no constitution. In countries where a document exists, the word has that meaning. But the document itself merely sets out rules determining the creation and operation of governmental institutions, and obviously Great Britain has such institutions and such rules. The phrase British constitution is used to describe those rules.” – Sir Ivor Jennings author of The Law and the Constitution.

The UK’s constitution is unique in that it’s not codified like most constitutions in the world. It’s the product of many centuries of continuous and, mostly, gradual, peaceful evolution. It has an unbroken history of constitutional development starting in 1066. It’s based on conventions, not law. This unique constitution relies on politicians doing the right thing as not doing so would be disastrous. The politicians are still expected to operate in the interest of the public.

Another unique element of the UK constitution is the role of the crown. Before the 18th century, a King or Queen could choose a Prime Minister of his/her choice. Now, politicians are still deemed to act in the name of the crown, but they answer to parliament. Decisions like going to war, appointing, and dismissing Prime Ministers are subject to parliamentary approval. The crown does not have real power anymore even though the government is called Her Majesty’s Government. The real power is in parliament. The crown has ceremonial or discretionary powers.

As submitted by Lord Sumption, so much in British Constitutional law, “the label on the bottle has little to do with the contents.”

Prime Minister Boris Johnson

The outgoing Prime Minister, Boris Johnson is deemed to be unconventional given his idiosyncratic approach to politics. Commentators say he’s the politician who defies political gravity. They expected him to spend at least 10 years in power and transform the conservative party forever. He was London Mayor for 10 years, delivered Brexit and went on to be Prime Minister. He wanted to be world president from a young age. Since the UK does not do presidents, he had to settle for Prime Minister.

He had political capital that his predecessors could only dream of. Unfortunately, it could not stop politicians from his own party from getting rid of him. His fellow parliamentarians recited trust issues, integrity, and a general problem with adhering to rules. As such, they wanted him gone less than 3 years after becoming Prime Minister. It seems harsh considering what he achieved for the party. He would not go without a fight though. He told them that he had a colossal mandate from 14 million people who put him in power, not them. It took an unprecedented strategy in which 58 ministers resigned from his government in 2 days for him to finally resign.

Some constitutionalists were shocked by how the whole process of getting rid of Boris Johnson materialised. They felt he should have gone way earlier when his colleagues in parliament told him it was time go. By resisting and refusing to resign, they felt Boris was effectively pushing the unwritten constitution to breaking point. This constitution which relies on politicians doing the right thing, encountered Boris who felt the people, not parliament could only get rid of him. Constitutionalists could not believe that a Prime Minister was refusing to resign even though there was evidence suggesting sufficient grounds for resignation.

Margaret Thatcher won 3 general elections and spent 13 years in power, but her own party got rid of her without elections. Tony Blair was Prime Minister for 10 years and his party got rid of him without elections. In these instances, parliament was discharging its duty on behalf of voters when it felt leaders had acted below the expected standard or lost confidence in them. It seems brutal but that’s the system where parliament is the only instrument by which government can be held to account. This is different to a presidential kind of system where there are checks and balances to ensure the president does not operate beyond his powers or take the country in the wrong direction.

The manner in which Boris resigned resulted in people talking about the need to have a UK written constitution. They are of the view that if a similar event were to arise in the future, the system might not survive the push back. A written constitution would address the problem swiftly without threatening the principles on which the country is built on. Lord Sumption suggested that an independent body with constitutional powers must be created so that it can step in should the Prime Minister “run amok.” He went further and said, if someone like Donald Trump was Prime Minister, he would have brought the whole system down given it’s built on conventions.

Conventions by their nature are fragile, they don’t have teeth. Relying on the honour of politicians to do the right thing is risky. The UK Parliament created a ministerial code which parliamentarians should abide by. It does not seem to have the deterrence factor as it’s not grounded in law.

There are some leaders who naturally don’t believe rules apply to them whether they are in a written constitution or not. If someone is determined to push the rules to breaking point, they are likely to fold as they often do in countries under dictatorship.

Conclusion

Although the UK constitution was tested recently, it also showed that it works because in the end, Boris Johnson had no choice but to resign. The unwritten UK constitution was able to get rid of Boris Johnson while the strong and powerful US constitution could not get rid of Donald Trump. The rules don’t work by themselves, they need moral and ethical people who believe in them.

Zimbabwe and the Austria-Hungary Phenomenon

When Austria was ejected from Italy in 1859 and from Germany (then Prussia) in 1866, its focus on foreign policy narrowed and resulted in a dual monarch with Hungary to become the Austria-Hungary Empire. The empire was ruled by the House of Habsburg from the compromise of 1867 to 1918 where it was consumed in the first world war.

Henry Wickham Steed wrote about the ten years he spent in the Austrian-Hungary Empire up to 1913. He said he left the empire “with a feeling that I was escaping from a doomed edifice.” In Tomas Masryk Czech’s nationalist memoir “The Making of a State” Henry Wickham Steed provided a foreword in which he submitted that the word “Austria was synonymous with every device that could kill the soul of a people, corrupt it with a modicum of material well-being, deprive it of freedom of conscience and thought, undermine its sturdiness, sap its steadfastness and turn it from pursuit of its ideal.”

The Hungarian Scholar Oszkar Jaszi concluded an ambitious study of the Empire in 1929 in which he said the “world war was not the cause of the empire’s destruction but only the final liquidation of the deep hatred and distrust of the various nations.” However, in 1949, after the second world war, calamitous period of dictatorship and genocide in his home country and living in American exile since 1919, Oszkar Jaszi changed his mind. He wrote, “in the old Austria-Hungary Empire, the rule of law was tolerably secure, individual liberties were more and more recognised, political rights continuously extended.” He added the “free movement of people and goods” to the remotest places was happening.

Some people who despised the Empire before it stopped existing were regretting that it had ended. The Hungarian writer Mihaly Babits said “we now regret the loss and weep for the return of what we once hated. We are independent, but instead of feeling of joy we can now tremble.”

Emmerson Mnangagwa v Ian Smith

An almighty debate erupted recently in Zimbabwe between the Zanu PF government and supporters of the opposition party, “Citizens Coalition for Change” (CCC).  The debate was on whether life was better under Ian Smith’s Rhodesian colonial government or under the current Mnangagwa government which is based on liberation war credentials. On the outset one might think this is a straightforward debate with an obvious outcome. However, on closer inspection, one could be forgiven for thinking that the script on life under smith’s rule and under Mnangagwa’s rule is the same. This is because there isn’t much of a difference.

Despite Zimbabwe enjoying freedom from colonial rule for 42 years, some members of the CCC are of the view that Smith was better than Mnangagwa. This is deemed to be highly offensive by the government considering it’s made up of people who fought in the Zimbabwean liberation war. They contend that they liberated the country and lost friends and loved ones. It’s fascinating however that the former Vice President of Zimbabwe Joshua Nkomo, who fought in the same war said, he realised later in his life that “a country can have freedom without its people being free.” This is a loaded statement which appears to question the credibility and substance of whether Zimbabwe is free at all.

Joshua Nkomo was persecuted by the Zimbabwean government in the early years of the country’s independence. It’s understood he was forced into merging his political party with the main political party to form a one-party state. He lived in a region that suffered the Gukurahundi genocide where between 20 – 30 000 people were massacred, again in the early years of Zimbabwe’s freedom. What is difficult to understand is how a country of brothers and sisters can go to war together and fight as one, then come back home as victors, end up butchering their fellow brothers and sisters within two years of attaining freedom? The reports of soldiers going from house to house and killing people are well known. No one was held responsible for this genocide. Former president Robert Mugabe called it “a moment of madness.”

Elusive Freedom

The premise of going to war was that the people of Zimbabwe wanted “one man, one vote” which the Smith government refused to extent to black Zimbabweans. When it materialised for the first time in 1980, the black majority government swept into power and replaced Smith’s government. Naturally, a war fought to achieve rights, would have seen the creation of a democratic state with separation of powers and a constitution to signal the birth of a new country.

No constitution materialised in Zimbabwe until 2013, that’s 33 years after Zimbabwe gained its independence. Why so long if the war was fought to liberate people from colonisation? Even the rights within the constitution don’t carry much weight because Zimbabweans cannot derive any benefit from them. For instance, demonstrating is illegal even though it’s a constitutional right.

When Zimbabweans vote in elections, their votes are not recognised hence Mnangagwa’s political party has been in power since 1980. There is no difference between Ian smith denying blacks the right to vote and the black Zimbabwean government not recognising the votes of its own black population. From 1980 to 1999, Zimbabwe was a one-party state. Although they preached democracy, they destroyed other political parties or brutally incorporated them into their party.

The government has never won an election since the year 2000 but power has never transferred to the real winner. Elections are often followed by violence where the army is deployed to stop the citizens from resisting stolen and rigged elections. It’s these experiences that make some Zimbabweans say life was better under the Smith government. They acknowledge that there was oppression under Smith, but the standard of lifestyle was not as bad as compared to a Zimbabwe with inflation of 426% and 90% unemployment. Instead of the Zimbabwean government building an economy that works for everyone, they designed an economy for the few elites at the top while citizens struggle on their own. The biggest contributor to the Zimbabwean economy is not money generated from the country’s economy. It’s money sent by Zimbabweans who live in the diaspora to their loved ones, in order to make ends meet in a tough economic environment.

There is an intentional disregard for the well being of the people considering the wealth in the country. Through mismanagement and corruption, Zimbabwe seems like a poor country. It has been put on the hunger watchlist. However, Zimbabwe is not a poor country. It’s one of the wealthiest countries in the world.  Zimbabwe has diamonds, gold, lithium, platinum, and many other mineral resources plus good land for agriculture. It was reported that Zimbabwe is losing $100 million worth of gold every month. That’s more than a billion dollars a year just on gold. There is no accounting for other minerals that are reported to be smuggled out of the country.  

Rule of law and Human Rights

It would be absurd to expect justice under an oppressive colonial system. Some members of the CCC say the Zimbabwean government became the new oppressor after Smith’s government. The way the judiciary is deployed against innocent citizens is appalling. It results in deliberate miscarriage of justice. There is no separation of powers that allows the courts to function independently. The courts are captured contrary to democratic principles. The Supreme Court Judges and lower courts are essentially an extension of the government’s arm.

Job Sikhala, a lawyer, and member of parliament for CCC and another parliamentarian Godfrey Sithole are currently in prison for representing a family whose mother had gone missing. The mother’s body was found dumped in a well. They were denied bail because the courts fear they could incite violence. They’ve been in prison for almost a month. They walk around in chains and leg irons. The treatment is designed to degrade them. Selective application of the law is standard practice, and the law is weaponised to cause maximum damage. This is not Smith’s government but Mnangagwa shrinking political space a year before the 2023 presidential elections.

Hopewell Chin’ono spent 45 days in prison after reporting on a corrupt deal in which money donated for Covid vaccines was diverted from its intended use. He also reported on a government connected person caught at the airport trying to smuggle gold out of the country. Exposing the government’s corruption will bring persecution. This persecution is executed with the gestapo kind of ruthlessness. The conditions in prison are horrible. They are overcrowded and a serious threat to life in a time of covid.

 There are many members of the opposition CCC, who have been in the court system for years because the captured courts won’t give them trial dates. Even when a trial date is given, the ball is kicked in the long grass because evidence is always missing, or a key witness can never be found. When all that is happening, they are expected to report every week at the police station. The government and the courts are essentially torturing these people and harassing them by keeping them in the court system, without prospects of a trial or freedom. These people are not criminals. They are professionals from lawyers to journalists, teachers, and students. The government treats its people as if they are under colonisation. This is one of the reasons why people are saying Smith is better than Mnangagwa.

Infrastructure  

One of the points pushed forcefully against the government is that the country is still using Smith’s infrastructure which was built long before Smith left power in 1980. The argument is Smith left a fully functional country which Zimbabwe inherited. There are houses today that have not had running water through their taps for more that 10 years. Today the government goes around drilling boreholes in the capital city. What people don’t understand is with all the mineral resources in the country, the government cannot afford to fix the water system.

Lack of modern infrastructure in cities can be attributed to the fact that the government has never won parliamentary seats in cities since the formation of the first opposition party in 1999. Corruption is also a massive factor when ministers divert money from the needs of the country for their personal use.  People are dying from curable diseases because hospitals are not equipped to the expected standard. Some hospitals don’t even have thermometers, painkillers, or cancer machines to screen patients. The potholes on Zimbabwean roads are frightening. These are signs and symptoms of failure of leadership. The transport system needs to be modernised. In essence, the whole country needs to be modernised. Police officers are still using uniforms that were used under Smith’s government. No one realised that the uniforms look like those used by the British army in World War 1.

Conclusion

There is no doubt that Smith’s style of government was detrimental and horrible to Zimbabweans. If it wasn’t, no one would have gone to war. What doesn’t make sense is that the leaders who went to war to fight Smith’s oppression, came back home and have been oppressing their own people from day one. That’s unacceptable.

The current government must be extremely bad to be compared to Smith’s government. That discussion should never arise at all. There should be no room for it. What Zimbabwe needs is a country built on democratic principles, with separation of powers for accountability purposes and a constitution that provides citizens with tangible rights. When a country does not progress, it will decay. A country must evolve so that fresh blood, new ideas can come. The new cannot be born if the old does not give way.

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