The Dualities of Contemporary Zimbabwean Politics: Constitutionalism versus the Law of Power and the Land, 1999-2002

ABSTRACT: This paper explores the dualities in the coexistence within Zimbabwean politics of constitutionalism and legality versus a complex combination of paralegal, supralegal, oppressive and brutal political action, especially as this pertains to elections and land. The analysis is set in the period 1999-2002. The investigation concerns the issue of how the Zimbabwe African National Unity (Patriotic Front) government had been using a complex combination of constitutionalism-legality and the unconstitutional-paralegal to ensure political survival, despite national resistance and international pressure. An epilogue presents a brief thematic comparison between the core arguments in this article, and developments from 2002-2003. The article has three interconnected parts. The first presents the major contours of constitutionalism in Zimbabwe. It argues that the state contested and manipulated both the practice and discourse of human rights, recasting the 'individual' and the 'liberal' in the context of 'African' and 'socialist', but with the slant to favour the government of the day. The second section highlights how ZANU-PF built the extensive constitutional, legal and electoral-domain front of constitutionality and multi-partyism, precisely to defeat and undermine opposition challenges, whilst maintaining itself in power. It argues that in the electoral domain ZANU-PF uses the legality of constitutionalism to aid and veil unconstitutional, arbitrary, and authoritarian means of maintaining power, and simultaneously garners the moral force of land and colonialism to create 'political immunity'. Thirdly, the article deals with the convergence of liberation politics, land and elections. It assesses the way in which ZANU-PF's anchoring of its electoral conquest in the issue of the land and post colonial liberation superimposed forms of legitimacy and justice that tended to override (in the eyes and minds of many citizens and parts of the international community, including SADC) paralegal and supra-legal action. The abrogation of constitutionalism in the domain of land effected some electoral favour and also conferred a degree of political immunity because of the 'sacredness' in the post-colonial struggle for land justice. The conclusion reviews possible explanations and notes the extent to which the period of 1999 to 2002 witnessed the convergence of constitutionalism, legality, and the moral force of land reform, with coercion, oppression and legal-institutional manoeuvring to maintain fragile regime power. INTRODUCTION By the time of the 2002 presidential election in Zimbabwe, contestation between the worlds of constitutionalism and legality, and supra-legal political practice within the belly of the constitutional epitomised developments in the Zimbabwean African National Union-Patriotic Front's (ZANU-PF) struggle for political survival. The dualities of constitutionalism, legalism, and formal party-electoral actions, versus actions beyond constitutional provisions and law, contribute to an overall characterisation of contemporary Zimbabwean regime politics as precariously vacillating between these two worlds. The co-existence of the legal and the supra-legal means that, for each reality and understanding that emerges, observations from the other side of the constitutional-legal divide reveal another reality. 'An edifice of legality', or 'pretence of constitutionalism', are phrases that opposition and community voices in Zimbabwe used to describe the contradictions between the upholding of the law, constitution and liberal- democratic practice, on the one hand, and the actions or measures of ZANU-PF in maintaining and justifying their hold on political power, on the other. ZANU-PF alternately denied practices of coercive and paralegal state action, or otherwise defended these in terms of security, anti-colonialism and nationalism. ZANU-PF pointed to opposition Movement for Democratic Change (MDC) actions as unpatriotic, driven by foreign funding, and disinterested in resurrecting the pre-colonial bond between people and the land. …