Why Defence Forces Must Act Within Constitution, Not Act As Its Guardians Or Interpreters

HARARE -The implicit opposition to the proposed constitutional changes in the Amendment 3 Bill by ‘Zimbabwean retired generals and senior civil servants who are ex-combatants,’ when viewed through the lens of constitutionalism rather than emotion, actually validates the necessity of Clause 16 of the Constitution of Zimbabwe (Amendment 3) Bill.

The military is not the ultimate constitutional referee and does not have a direct guardianship role over the constitutional order. This is why it is important that Clause 16 amends section 212 (Functions of Defence Forces) of the Constitution by deleting the words “to uphold this Constitution” and substituting them with “in accordance with the Constitution”.

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The difference between these two phrases may appear small, but constitutionally it is profound since “uphold” can be interpreted to mean that the military may determine whether constitutional processes are acceptable or legitimate.

But the Constitution already assigns these roles. The courts interpret the Constitution, Parliament ensures political accountability, and the people hold ultimate power. By saying the Defence Forces must follow the Constitution, this change puts things back in the right order.

Also, this update makes Section 212 consistent with Sections 213 and 214 of the Constitution of Zimbabwe, which already state that the Defence Forces must act under legal orders and within legal boundaries.

The moment a military institution appears to take a position in a constitutional debate, they distort democratic deliberation, and certain risks arise. Firstly, civilian political processes become overshadowed by the presence of force. Citizens begin to wonder whether arguments will ultimately be settled by democratic processes or by institutions that command weapons.

Secondly, when military figures express dissatisfaction with national political debates in their official capacity, they unintentionally project the authority of the armed forces into civilian political space. Even if their intention is merely to express concern, the effect is quite different. What should be a civilian contest of ideas begins to acquire the shadow of coercive authority.

Thirdly, in a constitutional democracy, soldiers defend the nation, but they do not arbitrate political debates within it. The constitutional position is not complicated since members of the military are citizens and, like all citizens, they may hold opinions.

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But the moment they speak as the military, they cease to be ordinary participants in the national conversation. They become representatives of an institution whose defining characteristic is the lawful use of force.

Fourthly, it undermines the professional neutrality of the security sector. The Defence Forces must belong to the nation as a whole, not to one side of a political conversation. When military officials intervene in political debate as representatives of the armed forces, they implicitly suggest that their voice carries greater authority than that of ordinary citizens. That is constitutionally problematic because it elevates the military above the civilian body politic.

This is precisely why constitutional democracies insist that the military operates strictly within legal authority rather than acting as an independent guardian of political outcomes. National debates, whether about constitutional amendments, elections, or governance, must be settled through law, parliament, courts, and the ballot box.  

Clause 16, therefore, performs an important constitutional function. By clarifying that the Defence Forces operate “in accordance with the Constitution,” it removes any ambiguity that could be interpreted as granting the military a supervisory role over political processes.

The amendment simply reinforces a fundamental democratic structure, which is that the Constitution governs everyone, including the military, whilst civilian institutions interpret and enforce the Constitution, and the Defence Forces execute their duties under lawful command.

When these roles are clearly defined, constitutional stability is strengthened. And that, ultimately, is the purpose of Clause 16: to ensure that the power of arms always remains subordinate to the authority of the Constitution and the democratic institutions it creates.

Lucky Ndlovu is a Zimbabwean-based Multimedia Journalist and Digital Marketer. The views expressed are those of the writer and dont represent the publication.