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Nick Mangwana
Last week this column started the defence of the National Pledge by showing that other nations which have reached higher developmental stages than us, whom we tend to try to benchmark ourselves against, have their own national pledges.

It supported the recitation of the National Pledge and intimated that an attack on the National Pledge was an attack on the Constitution of Zimbabwe.

This is because the Zimbabwe National Pledge is not just a pledge. It is from the Preamble to the Constitution of Zimbabwe (Amendment 20) that the pledge is derived.

This sequel has been prompted by the constitutional challenge by some over the legality of making people recite the National Pledge.

It is because our pledge is part of the Preamble to the Constitution that this writer contends that attacking it is attacking the Constitution.

So this instalment will focus on the role of the Preamble with a view to interpreting the provisions of the much quoted Section 60(2) of the Constitution.

The Preamble constitutionalises those unarticulated rights, those values cannot be enumerated in a Constitution.

There is an international legal trend where the preamble is combined with constitutional provisions it is used as a guide for the interpretation of constitutions.

It is a source of law relied upon by the courts. It is also the political angle of the Constitution that gives an idea what was in the mind of those that framed the Constitution.

Having had the proximate familial vantage during the constitution-making process this columnist can affirm that every line and word in that Constitution was contested and negotiated until consensus was arrived at.

The people by a resounding 94,5 percent voted for that Constitution wholesome with its preamble.

To now attack it by the backdoor within three years of it coming into force, even before full harmonisation has even taken place is not only callous but mischievous.

The litigants challenging the National Pledge are using the same powers derived from the Constitution to attack the same Constitution.

The sociological reasons of the nation’s very being is embodied in that Preamble.

It is naïve for anyone to see this attack as just a contestation of a National Pledge when the pledge is the Preamble to the Constitution.

Suppose the court strikes out a few lines from it then what next? Someone else will be commissioned to go after the Umvukela bit in the preamble under a different guise.

It is really strange to use the Constitution to attack the spirit of the same Constitution.

The Preamble is the bit of the Constitution that consolidates national identity. Who are we? How did we become thus? What is our value system? It is not only foundational.

It is unifying.

To make a unifying preamble a point of dispute is to convert it into a divisive statement. Are we at a level where we are questioning the sociological reasons of our very being?

How do we consolidate our national identity by ceremonially attacking that which encapsulates that identity?

Zimbabwe is a country of diverse ethnic groups, many religious creeds but one fundamental creed. There is a near universal belief in one Supreme Deity “uMdali”. Even those of little faith like this writer divert to Him once in a while.

The Constitution preamble while recognising the secular nature of the country still captures this belief in “Almighty God” or “Mdali” which naturally coincided with the Christian belief which now dominates the nation.

They only differ on shrines and the many intercessors in one and less in the other. Why was this fact not disputed during Copac?

The Preamble provides the guiding principles of an institution. Can a Preamble be contradictory to a constitution to which it gives moral guidance to?

How can it be when it is the guiding soul of the said Constitution? Isn’t the purpose of the Preamble to state the Mission of the Constitution?

Then how can this then be ultra vires the very Constitution that it gives constitutive meaning to?

If the argument here is that the Preamble is ceremonial to our Constitution, then why are those opposed to the National Pledge opposed to the very ceremony of reciting it? But if it is instructive to the Constitution then let Section 60 (2) of the Constitution be read in that very context.

To challenge the soul of our Constitution because it refers to God or to dead forerunners is to commence the deconstruction of this nation for it is founded on the very principles of Umvukela/Chimurenga.

Our National Pledge is the core principle and value of Zimbabwe. There is nothing untoward about any child in Zimbabwe reciting what was voted for by about 94, 5 percent of our compatriots.

For reciting that is simply reciting the Constitution. Since when is reciting the Constitution unconstitutional?

The Indian judges believe that the preamble is not a regular constitutional clause and therefore represents eternal law. If our courts take this position, then our National Pledge is eternal law.

It cannot be altered surreptitiously through attacking the Preamble through a disguised challenge to the National Pledge.

The constitutional provisions can be amended. But not the Constitution.

In short; leave the pledge alone. It is the entrenchment of every provision of the Constitution, it is a dipositive but unamendable part of the Constitution.

The decision of the court in June is being awaited with international interest for surely the reasoning will go beyond our borders.

We are talking of Zimbabwe’s national identity here. So if we are not going to start deconstructing that identity then one hopes the court will use the Preamble to play a contextual role in the interpretation of Section  60 (2).

This would appear to be a natural way of looking at it considering it plays a constructive role in the Constitution text and s60(2) can’t contradict what the Preamble tells us.

The source of our sovereignty is the Umvukela/Chimurenga. If that is contested, then what is sacred? This is not some Zanu-PF dogmatic mischief. It is about Zimbabwe. Reciting the pledge is reciting the spirit of the Constitution.

Come June, the Concourt has to ask itself whether our Preamble is interpretive or ceremonial. This, to this writer just matters a little.

For whether ceremonial or interpretive at the end of the day it is persuasive enough to Section 60(2) that whatever one believes in or not, they commit the day to some Supreme Being somewhere.

If our Preamble is an introduction to the Constitution like it is now, then it is part of the Constitution.

The spirit and soul of the Constitution and should not be dismissed because it’s not part of the sectioned text. It does not make sense to disregard our Preamble when interpreting Section 60 (2).

If the two are deemed contradictory, then it is the founded which has a problem and not the foundation. When interpreting any text in the constitution, the spirit and soul of that Constitution has to be deployed.

Without this soul our Constitution becomes just a nicely drafted variant of a Nkomati Accord which no one honoured because no one meant anything by it.

Well, Zimbabweans meant it when they said they wanted this Constitution with its Preamble and Founding Principles.

What next? Is someone going to surreptitiously go after the founding principles of the Constitution?

No. These are the primary tools that constructed the Constitution therefore they are constitutive.

They are the foundational moral order for our nation.

This is therefore not only the symbolical but also the interpretative route of our Constitution, Section 60(2) included.

The writing of both the Founding Principles and the Preamble was part of the painful tedium involved in the long drawn process of drafting the Constitution.

Defending the National Pledge is defending the Preamble which is the soul of the Constitution. It is defending the fundamental values of our nation regardless of one’s religious beliefs or lack of same.

Therefore, our National Pledge is not only constructive; it is also constitutive of the national Constitution.

It is the sinew, the spirit and the soul of this nation.

If the National Pledge was just some poetic rhetoric, then all the drama around it would have just been that.  But it is because of where this one is derived from and what it symbolises that makes it such a big deal.

If it is allowed to be attacked, then this columnist shudders to imagine what will be assailed next.