LEGAL MATTERS: Government needs to uphold our Constitution

ZIMBABWE has a very progressive Constitution and if those who preside over State power were to adhere to its dictates, our country would take a thrilling developmental trajectory.
A Constitution just being a piece of paper, requires men and women of character and fortitude to have its provisions implemented for a resultant better nation.
Great nations are not only founded on sound constitutions and political stability, but such nations are presided over or have been ruled, if we are to look into history, by men of vision.
The 2013 Constitution could have easily been made a good catalyst to stimulate national and international confidence for purposes of creating a thriving business environment.
To the contrary, the document is being given less respect than it deserves and we continue to witness the shrinking of our economy and the creation of a brittle, weak State with collapsing social services and infrastructure, left, right and centre.

The Constitution is clear about what is expected from the defense forces.

I have been compelled to revisit the issue of our Constitution on account of the impunity that is becoming more visible nationwide, which impunity is allegedly being orchestrated by members of the security forces.
The Constitution is clear about what is expected from the defense forces. Section 211 (3) provides that; they must respect the fundamental rights and freedoms of all persons and be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by the Constitution.
Most crucially, our soldiers are expected to “respect the fundamental rights and freedoms of all persons”, and this calls for our men in uniform to respect those rights that are extended to citizens under the Constitution’s Bill of Rights.
Fundamental human rights and freedoms are provided under Part 2 and among such rights, is the freedom of assembly and association, freedom to demonstrate and petition as well as, freedom of expression and freedom of the media.
Under freedom to demonstrate and petition, such rights are exercisable subject to them being exercised peacefully.
Hence, defence forces in being called upon to respect such rights, are required to leave citizens alone in situations where such citizens demonstrate in a peaceful manner.
Our forces are also required to be professional and the definition of what a professional defence force, requires no further elucidation.
We need not look further than South Africa where no history of impunity and/or rights abuses by that country’s defence forces has been reported since the advent of a democratic government in 1994.
Subsection 4 of Section 211 provides that; the defence forces must be maintained as a disciplined force and again, there may be no need to define what a “disciplined force” is.
To the contrary, we may just need to define what an unprofessional and undisciplined force is.
An unprofessional and undisciplined force shoots and kills fleeing civilians without regard to the right to the sanctity of life.
It shoots at fleeing civilians inflicting serious bodily harm, paying scant regard to such people’s right to dignity and personal security.
An unprofessional force forgets its duty to be a provider of security to the citizens and instead, transforms itself into a chief threat to their security.

An undisciplined defense force has some of its members going about committing atrocious armed robberies in broad daylight and various other criminal acts like bribery and extortion.
Further still, only an undisciplined and an unprofessional force would go about harassing, assaulting, torturing, raping and disturbing the peace of citizens.
Such are the characteristics of a defence force that loses focus on its mandate and assumes the behavior of militia’s common place elsewhere in Africa.
Under Section 212, the function of the Zimbabwe Defence forces, which forces consist of the army, the air force and any such other services, as may be established under an Act of Parliament, is to protect Zimbabwe, its people, its national security and interests, and among other things, to also uphold the constitution.
The duty to uphold the Constitution runs parallel with the duty of professionalism and discipline provided for under Section 211.
To uphold the Constitution is to adhere to its dictates religiously and such adherence also calls upon the defense forces not to be used in a partisan manner.
Our men in uniform must be the pride of our nation and their overall conduct on duty and off duty must always inspire public confidence.
They must be friendly and not menacing and neither should they carry a bad name-tag within our borders and even beyond.
It would be a sad day if our defence forces would end up being seen as an enemy by those they are expected to protect.
The remedy against constitutional breaches by members of the defence force, lie in approaching the Constitutional Court for certain of their conduct to be declared unconstitutional.
Once so declared, any further breaches may then require serious sanction on those found contemptuous of the courts and the Constitution.

Muza is a Harare-based legal practitioner. He writes in his personal capacity.