• The way in which powers are exercised. Particularly in the case of the Executive,
decisions should be taken collectively rather than individually. For example, the
power to make decisions should be vested in the Cabinet rather than in the
President or the Prime Minister.
Checks and balances must not be so great as to prevent a government from taking
effective action. There must be co-operation between the different branches of
government if the business of government is to conducted smoothly. Where a
constitution divides governmental powers between different institutions, those
institutions must learn to practise compromise and common sense. But compromise
and common sense are habits of mind and cannot be embodied in a written
constitution.
In addition to balancing the powers of the different institutions of government, every
democratic constitution must try to balance the other conflicting interests that exist
in every State. Some of the interests that need to be balanced are the following:
• Individuals versus the State
Zimbabwe’s history, and the history of many other countries, shows that
individuals and vulnerable groups need to be protected against oppression by
their governments. The purpose of a Declaration or Bill of Rights is to provide this
protection, but it mustn’t go too far. The rights of the majority, who in a
democratic State are represented by the Government, cannot be ignored.
Governments must be able to take reasonable measures to preserve the national
interest while at the same trying to protect minority interests. In other words, a
balance must be struck between general and particular interests.
• Differing Class Interests
In Zimbabwe there are stark differences between the lifestyle enjoyed by
members of the wealthy élite, who wield political and economic power, and that
of the rural and urban poor. The constitution-making process is directed and
controlled by the élite, and there is a danger that their interests will be reflected
in the new constitution to the detriment of the poor. That tendency must be
resisted if the new constitution is to attain legitimacy, to be regarded as “our”
constitution, by the majority of Zimbabweans. One way to ensure that the
interests of ordinary people are reflected in the constitution is to protect their
social and economic rights in the Declaration or Bill of Rights.
VI. Other Considerations
The need for flexibility
The governmental system established by a constitution must be flexible enough to
allow institutions to develop over time and to cope with unforeseen situations. This
entails, firstly, that the constitution should not seek to prescribe exhaustively what
should happen in every conceivable situation; and, secondly, that the procedures for
constitutional amendment should not be so difficult as to prevent amendments when
they become necessary.
A written Constitution may not reflect the real constitution
One should remember that the wording of a written constitution very often does not
reflect the true nature of a country’s system of government. In the United States, for
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