THE CONSTITUTION OF ZIMBABWE AMENDMENT (NO



The Constitution of Zimbabwe Amendment (No. 2) Bill, 2019

(HB 23, 2019)

______________________________________

Representations by Veritas to the Portfolio Committee on Justice, Legal and Parliamentary Affairs

______________________________________

TABLE OF CONTENTS

Introduction 2

Should We Amend the Constitution at All? 2

Should We Increase the President’s Powers? 2

Contents of the Bill 2

1. Abolition of Provisions for Electing Vice-Presidents 3

2.  Extension of Party-list Members of National Assembly 4

3.  Delimitation of Electoral Boundaries 7

4.  Appointment of Additional Non-Parliamentary Ministers 7

5.  Alteration of Membership of Provincial and Metropolitan Councils 8

6.  Promotion and Tenure of Judges 8

7.  Appointment and Removal of Prosecutor-General 10

8.  Change of Name of Civil Service 11

9.  Chief Secretary to President and Cabinet 11

10.  Creation of Office of Public Protector 12

Overview and Concluding Remarks 13

Conclusion 16

Introduction

In response to the invitation, published on the Parliamentary website, for comments on the Constitution of Zimbabwe Amendment (No. 2) Bill, HB 23,2019, Veritas wishes to place the following submissions before the august House.

Veritas is a non-governmental not-for-profit organisation registered as a trust in the Deeds Registry, Harare, under the name Firinne Trust. Its registered number is MA 253/2016. Veritas’s mission is to contribute to the development of constitutional democracy characterised by openness, justice, human dignity, equality, freedom, tolerance and peace.

Should We Amend the Constitution at All?

If the Bill is passed by Parliament we shall have amended the Constitution twice since it was enacted just over seven years ago (assuming, of course, that the first amendment is passed by the Senate in accordance with the Constitutional Court’s judgment). Formulating the Constitution took five years of political bargaining and consultation and entailed considerable public expense, so we should not amend it now unless it is absolutely necessary to do so. The Constitution is the supreme law and must not be tinkered with.

Should We Increase the President’s Powers?

The President has wide powers under the Constitution and when exercising many of them he can use his personal discretion without having to accept the advice of his Cabinet. This is particularly so when he appoints people to posts and offices under the Constitution or any other law: see section 110(2)(d) and (6) of the Constitution. Amending the Constitution to give the President even more powers or to expand the role of the President’s office risks putting Zimbabwe on the road to autocracy.

Contents of the Bill

The amendments which the Bill proposes to make can be grouped under the following main headings:

1. Abolition of provisions for electing Vice-Presidents

2. Extension of Party-list Members of the National Assembly

3. Delimitation of electoral boundaries

4. Appointment of additional non-parliamentary Ministers

5. Alteration of membership of provincial and metropolitan councils

6. Promotion and tenure of Judges

7. Appointment and removal of Prosecutor-General

8. Change of name of Civil Service

9. Chief Secretary to the President and Cabinet

10. Creation of office Public Protector and transfer of functions from Zimbabwe Human Rights Commission

In this memorandum we shall consider each of these topics in turn.

We shall not deal with clause 23 of the Bill, the effect of which would be to limit Parliament’s power to approve treaties, because the Minister of Justice has announced that the Government does not intend to proceed with the clause.

1. Abolition of Provisions for Electing Vice-Presidents

(Relevant Clauses in Bill: Clauses 2, 3, 4, 5, 6, 7, 8 and 9)

There is provision in Chapter 5 of the Constitution for presidential candidates to nominate two Vice-Presidential candidates, and for all the candidates to be elected together in the same election. In the event of the President ceasing to hold office before the end of his or her term, the first Vice-President takes over as President for the remainder of the President’s term.

These provisions were due to come into operation in 2023 [see para 14 of the Sixth Schedule to the Constitution] In the meantime the system that was in force under the previous constitution continues, whereby only the President is elected and, after his or her election, he appoints up to two Vice-Presidents who hold office at the President’s pleasure ‒ i.e. the President can dismiss them at any time.

The Bill proposes to make the current system permanent by replacing the provisions for elected Vice-Presidents with new ones under which:

• Only the President will be elected

• As soon as the President assumes office after an election he or she will appoint up to two Vice-Presidents

• Vice-Presidents will hold office until the President removes them from office [which he will presumably be able to do at any time, though the Bill does not say so specifically]

• In the event of the President dying, resigning or otherwise ceasing to hold office, the Vice-President who last acted as President will take over until the former President’s party nominates a successor.

Comment

This proposed amendment will have the effect of increasing the President’s personal political power at the expense of his party.

The system of elected Vice-Presidents was inserted in the Constitution to give some certainty to presidential succession, in contrast to what happened under former President Mugabe who avoided nominating a successor and used the succession question to play party factions off against each other. If we revert to the previous system whereby Vice-Presidents are nominated by the President and hold office at his pleasure, we risk repeating the factionalism that prevailed under Mr Mugabe.

There is a further, perhaps unintended, consequence arising from the Bill’s amendment of section 91(2) of the Constitution [See clause 3(b)]. That provision states that a person who has served two terms as President is disqualified from election for a further term as President and from election as Vice-President. The provision was intended to prevent a President who has already served two terms from securing the election of a pliable friend as President and continuing to govern the country as the friend’s Vice-President ‒ in other words, to do as President Putin of Russia did in 2008 when he exchanged roles with his Prime Minister.

The amendment of section 91(2) will prevent a person from being elected as President after serving two terms, but it will not prevent him or her from being appointed Vice-President. It is most unlikely but, if such a manoeuvre was successful in Russia, it might be tried here too.

2.  Extension of Party-list Members of National Assembly

(Relevant Clause in Bill: Clause 11)

Current Constitutional Provisions for Party-list Members of the National Assembly

At present the National Assembly consists of:

• 210 constituency members, i.e. members who are elected by voters in the 210 constituencies into which Zimbabwe is currently divided, and

• Until 2023, 60 women members elected under a party-list system of proportional representation, six for each of the country’s 10 provinces. These members are elected on the basis of the votes cast in constituency elections within each province so that if, for example, constituency candidates standing for party A in a particular province get 66 per cent of the total votes cast in the province, and party B’s constituency candidates get the remaining 33 per cent, then four of the women on party A’s list of candidates for the province and two of party B’s women candidates will be elected to the National Assembly.

This is provided for in section 124 of the Constitution and elaborated on in Part XIA of the Electoral Act.

Proposed Amendment of Provision for Party-List Members:

Party-list women members

As indicated above, the provision for party-list women members of the National Assembly is a temporary one: according to section 124(1)(b) of the Constitution it will last for the life of the first two Parliaments after the Constitution came into operation, so it will expire just before the 2023 general election. It was intended to be a special provision to redress gender imbalance in the National Assembly. In the longer term it was hoped that the imbalance would be rectified by political parties selecting more women to stand as constituency candidates.

Clause 11 of the Bill proposes to extend the special provision so that it will last for the life of the first four Parliaments after the Constitution came into operation, i.e. until just before the general election which, if Parliament is not dissolved early, will be held in 2033.

Party-list youth members

Clause 11 will add a new paragraph to section 124(1) of the Constitution providing for 10 youth members to be elected to the National Assembly on a party-list system, one from each province. To qualify for election the “youths” will have to be aged from 21 to 35, and the party lists will have to list male and female candidates alternately. This will have the effect, incidentally, of adding up to five additional women to the membership of the National Assembly.

Comment

Party-list women members

The provision giving women special representation in the National Assembly was always controversial.

There has been an undoubted imbalance in the numbers of men and women put forward by political parties as candidates for election in constituencies, and it had to be redressed in some way. As long ago as 1995 the Fourth World Conference on Women in Beijing adopted a platform for action in conjunction with the Beijing Declaration which urged State parties ‒ among them Zimbabwe ‒ to:

“Take measures, including, where appropriate, in electoral systems that encourage political parties to integrate women in elective and non-elective public positions in the same proportion and at the same levels as men.”

The SADC Declaration on Gender and Development (1997) committed member States to:

“Ensuring the equal representation of women and men in the decision making of member states … and the achievement of at least thirty percent target of women in political and decision making structures by the year 2005.”

These are very worthy goals, but it is easier to stipulate them than to achieve them. Gender balance, and the wider goal of complete gender equality, cannot be solved simply by reserving a fixed number of parliamentary seats for women. Reserved seats or quotas often do not lead to real empowerment of women but rather benefit dominant political parties and reinforce patronage networks. Reserving special seats for women takes the pressure off political parties to nominate women as candidates for election in constituencies and, more generally, to implement measures to ensure that men and women compete for political power on a level playing field.

Research from other countries in Africa and elsewhere has shown that:

• Most “quota” women are selected through patronage – and are connected to or related to senior party members and tend to follow the interests of powerful men in their parties.  They generally do not challenge patriarchal attitudes prevalent in their parties and in society at large.

• Many do not have experience in gender issues or in working for gender justice, hence they may not be effective champions of gender equality.

• Having “quotas” leads to fewer women being elected by direct vote to represent constituencies.

• Particularly in other African Parliaments, “quota” women are often not treated with respect by fellow parliamentarians.

• Because “quota” women do not represent constituencies they do not become well known to the electorate and are less effective in taking women constituents’ issues to Parliament. They do not have the same accountability to the electorate.

Effect of the Women’s Quota System in Zimbabwe

In 2013 the constitution-makers opted for reserving 60 seats in the National Assembly for women. Has it brought about gender equality in Parliament? The results are mixed:

• In 2005, after a general election held under the Lancaster House constitution, women constituted 16 per cent of the members of the House of Assembly; in 2008 they constituted 17 per cent. After the election in 2013, the first held under the present Constitution with its provision for the extra sixty non-constituency party-list women, the percentage jumped to 34 per cent.

• On the other hand, the number of women elected in constituencies tells a different story: in 2005 there were 24 such women, in 2008 there were 34, while in 2013 they went down to 26. After the 2018 election there are again 26. Anecdotal evidence is that aspiring women candidates were told they would not be nominated for election in constituencies and instead should seek inclusion in their parties’ party lists.

Hence reserved seats can create an easy avenue for women but may impact negatively on women’s chances of entering Parliament through normal constituency elections. Extending the special representation of women for a further 10 years is unlikely to change matters.

Other Ways to Achieve Gender Equality

There are other ways of achieving the goal of gender equality:

• Withholding public funding from parties whose lists of constituency candidates show excessive gender bias might be a more effective way of improving women’s representation in Parliament. That could be done without amending the Constitution.

• In other countries, increasing the representation of women in executive bodies such as the Cabinet and other important State Institutions has proved more effective than providing for quotas in the Legislature. In Zimbabwe, out of 24 members of the present Cabinet, only five are women. This falls far short of the 12 needed to achieve gender equality, or even the eight needed to meet the target set in the SADC Declaration on Gender and Development, quoted above, which mandated member States to have at least 30 per cent of women in “decision-making structures” by 2005. And, as pointed out earlier, our own Constitution states that the Government must ensure that women are equally represented in all constitutional bodies such as the Cabinet.

• Women in executive roles in the public and private spheres have proved better role models and encourage more women to aim high than do specially elected women parliamentarians

Party-list youth members

Much of what we have said above applies equally to the party-list youth members. There is certainly a need to get younger people into governmental institutions, including Parliament, but whether special representation is the best way is debatable.

Political parties should certainly make more room for youths. Zimbabwe is out of step with world trends in this regard [In Finland for example the average age in several parties is in the 30s and the average age for the entire Parliament is 45].

Two final points:

• For a relatively small  population Zimbabwe has a very large number of parliamentarians – this is  very expensive and increasing the size without any real gains puts a large and unnecessary burden on the fiscus.

• If party lists for youth members must list male and female candidates alternately, as stated in the proposed amendment, then each party contesting a general election will have to prepare a single list of candidates covering the whole country, because only one youth member will be elected for each province.

3.  Delimitation of Electoral Boundaries

(Relevant Clause in Bill: Clause 12)

Under section 161 of the Constitution the Zimbabwe Electoral Commission must fix a date every 10 years for a delimitation of constituencies, wards and other electoral boundaries; the date must fall “as soon as possible after a population census”. Clause 12 of the Bill proposes to amend section 161 so as to remove the linkage between delimitation and population censuses.

Comment

There is no logical reason for a delimitation to be preceded by a population census. A census tells the authorities how many people ‒ adults, children, citizens and aliens ‒ are living in a particular area. It will be only a rough guide, however, to the number of registered voters who are living in the area. If voters are registered continuously, as ZEC is enjoined to do by section 17A of the Electoral Act, then ZEC’s own records will tell it where the voters are living and it will not have to look at census figures.

The probable reason for the amendment is that the next census is due to be held in 2022, which will not give enough time for a delimitation of electoral boundaries before the 2023 general election. Removing the link between delimitations and censuses will allow ZEC to set about delimiting constituencies and wards soon enough for the work to be done properly ‒ and a thorough delimitation has not been conducted since the 1985 general election.

Nonetheless the same result could be achieved without a Constitutional amendment: by amending section 12 of the Census and Statistics Act to require a census to be held this year or next year, thus giving ZEC two years to delimit constituencies and wards.

To sum up, therefore, the amendment is desirable but not strictly necessary.

4.  Appointment of Additional Non-Parliamentary Ministers

(Relevant Clause in Bill: Clause 10)

Section 104(3) of the Constitution allows the President to appoint up to five Ministers and Deputy Ministers from outside Parliament; all the rest must be Senators or Members of the National Assembly. The Bill will allow the President to appoint up to seven non-parliamentary Ministers.

Comment

Our Constitution is based on the British model under which Ministers are drawn from Parliament, principally the House of Commons. Ministers who are members of Parliament are more likely to respect Parliament as an institution and to accept that they are accountable to Parliament.

However it is not essential for the proper working of government that all Ministers should be members of Parliament. Other countries permit Ministers to be appointed from outside Parliament. In South Africa, for example, the President can appoint up to two Ministers from outside the National Assembly, in Botswana the President can appoint four, and in Malawi all of them can be so appointed. In the United States of America, which admittedly does not have a Westminster-type constitution, Ministers are not members of Congress at all (though the Vice President presides over the Senate).

That said, there seems to be no compelling reason for us to increase the number of non-parliamentary Ministers. Five of them should be enough to provide Cabinet with knowledge, expertise and skills that cannot be found among members of Parliament. If five are not enough to do this, perhaps the remedy lies in improving the calibre of people elected to Parliament rather than increasing the number of non-parliamentary Ministers.

5.  Alteration of Membership of Provincial and Metropolitan Councils

(Relevant Clauses in Bill: Clauses 20, 21 and 22)

Clause 20 of the Bill proposes to alter and align the membership of provincial and metropolitan councils under Chapter 14 of the Constitution so that both types of council will consist of:

• a chairperson elected from a list put forward by the political party which gained the highest number of National Assembly seats in the province

• mayors and chairpersons of local authorities in the province, and

• ten members elected at a general election on a party-list system of proportional representation.

The changes this will make to the membership of the councils, as laid down in sections 268 and 269 of the Constitution, are:

• Senators (including senator chiefs) and members of the National Assembly will no longer be council members ex officio. If they are elected to a council, they will lose their parliamentary seats.

• The two metropolitan councils will no longer be chaired by the mayors of Harare and Bulawayo, but by a chairperson elected from a party list as described above.

Comment

The councils will lose their parliamentary membership and become smaller. Whether being smaller will make them more efficient is impossible to say because they have never been constituted. In all the years since the Constitution came into force no legislation has been enacted laying down their procedures and how they exercise their powers, no provision has been made for their staff, and no places have been allocated for them to meet. Although their members have been elected they have never met and have never done anything by which their performance can be judged.

What the amendment will do is to make the councils less representative of the leadership in their provinces and so less likely to counter the influence of central government.

6.  Promotion and Tenure of Judges

(Relevant Clauses in Bill: Clauses 13 and 14)

Clauses 13 and 14 of the Bill will amend the current constitutional provisions for the appointment of judges and their tenure in office.

The current constitutional provisions, in so far as they will be affected by the amendments, are as follows:

• The Chief Justice, his deputy and the Judge President of the High Court are appointed by the President after consultation with the Judicial Service Commission [JSC]. Note that the President does not have to go along with any recommendation made by the JSC; he merely has to consult them [section 180(2) of the Constitution as amended in 2019].

• All other judges are appointed by the President, chosen from a list of names prepared by the JSC after conducting public interviews of candidates [section 180(4) of the Constitution as amended in 2019].

• Judges of the Constitutional Court serve for a single term of up to 15 years. They must retire from the Constitutional Court after serving for 15 years or when they reach the age of 70, whichever is the earlier.

• All other judges ‒ i.e. judges of the Supreme Court, the High Court, the Administrative Court and the Labour Court ‒ continue in office until they reach the age of 70, when they must retire.

The Bill proposes to alter these provisions as follows:

• The President, on the recommendation of the JSC, will be able to appoint a sitting judge to a higher court without the judge being subjected to a public interview. This means that the President may promote a judge of the Labour Court, for example, to the High Court or the Supreme Court or even to the Constitutional Court without the judge having to be interviewed and without the JSC having to interview other possible candidates for the post.

• Judges and acting judges of the Constitutional Court and the Supreme Court will no longer retire automatically on reaching 70. If they wish, they will be allowed to continue in office for periods of one year at a time so long as the President, after consultation with the JSC, is satisfied that they are fit to continue. Again, note that all the President will have to do is consult the JSC.

• All other judges will, as at present, have to retire on reaching the age of 70.

Comment

An independent judiciary is at the heart of a democratic constitutional State. Judges have to determine disputes not just between individual citizens but between citizens and the State itself. Unless the judges are truly independent, and are seen to be such, the government will be able to override the rights of its citizens and the result will be despotism and ultimately tyranny. It is vital therefore to retain the careful safeguards contained in the Constitution for the appointment and tenure of judges, which ensure so far as possible that only qualified, fit and proper people are appointed to the Bench and that judges who seek promotion must submit their records to public scrutiny.

If the proposed amendments are passed by Parliament the independence of the judiciary, already weakened by the constitutional amendments made last year, will be further compromised. The President will be able to promote pliant judges to higher courts. And if pliant judges of the two highest courts reach the normal age of retirement he will be able to keep them in office while refusing an extension to other more independent judges.

Limited application of amendments

One important point must not be forgotten. Under section 328(7) of the Constitution, if a “term-limit provision”, i.e. a constitutional provision that limits the length of time a person may hold office, is amended so as to extend that time, the amendment will not apply to anyone who held the office before the amendment.

The existing constitutional provisions [section 186(1) & (2)] which state that judges of the Constitutional Court and the Supreme Court must retire on reaching the age of 70 are term-limit provisions, so the amendments which would allow them to remain in office after the age of 70, i.e. would extend their terms of office, will not apply to any of the present judges of those courts.

7.  Appointment and Removal of Prosecutor-General

(Relevant Clause in Bill: Clause 19)

Section 259 of the Constitution establishes the office of Prosecutor-General, who heads the National Prosecuting Authority. He or she is appointed by the President on the advice of the Judicial Service Commission [JSC] following the procedure for the appointment of a judge [section 259(3)] and he or she can be removed from office in the same way that a judge can be removed [section 259(7)].

Clause 19 of the Constitution Amendment Bill proposes to alter section 259 so that:

• The procedure for the appointment of a judge will not be followed when appointing a Prosecutor-General. Although the President will have to act on the advice of the JSC when appointing a Prosecutor-General, the post will not have to be advertised, public interviews of applicants will not have to be conducted, and the JSC will not prepare a list of candidates for the President to choose from. Instead the JSC will nominate a suitable candidate and the President will appoint him or her.

• The grounds and procedure for dismissing a Prosecutor-General will be changed so that:

o The Prosecutor-General may be dismissed for “serious misconduct” rather than “gross misconduct” as at present [it is not clear what the difference is].

o The President will be entitled on his own initiative to appoint a tribunal to investigate the removal of a Prosecutor-General; at present he can do so only on the recommendation of the JSC.

o The tribunal will not include members nominated by the Law Society.

o The President will not be obliged to act on the recommendation of the tribunal when deciding whether or not to dismiss the Prosecutor-General. He will be able to do so even if the tribunal finds there are no grounds for dismissal.

Comment

Clearly the President will have much greater personal power to appoint and dismiss a Prosecutor-General, and to the extent that the President’s powers are enhanced the Prosecutor-General’s independence will be diminished.

The constitution-makers were at pains to ensure the independence and impartiality of the Prosecutor-General and all his or her subordinates ‒ see sections 260 and 261 of the Constitution. The provisions making the procedures for appointing and dismissing a Prosecutor-General the same as those for judges help strengthen the independence of the office and so make it more likely that the Prosecutor-General will be impartial and non-partisan. Weakening those provisions may well bring us back to the days of politically motivated prosecutions.

8.  Change of Name of Civil Service

(Relevant Clauses in Bill: Clauses 15, 24 and 27)

Clause 15 of the Bill proposes to change the name of the Civil Service to “Public Service”; it will also change the description of the Service in section 199(1) of the Constitution from:

“(1)  There is a single Civil Service, which is responsible for the administration of Zimbabwe.”

to:

“(1)  There is a single Public Service to implement the policies of the Executive branch of the Government, to assist it in the administration of Zimbabwe and to deliver public services to the people.”

Comment

The new section 199(1) will emphasise that civil servants are subordinate to the Executive branch of government. Civil servants have always been subordinate to their Ministers, in the sense that they are supposed to carry out all lawful instructions their Ministers may give them. They must give their Ministers honest, fair and accurate advice when called upon, and if a statute gives a civil servant a personal discretion to carry out a particular function then he or she must exercise that discretion independently, honestly and fairly. But otherwise civil servants must implement the lawful policies of the Government.

The new section 199(1) will not therefore change the law in relation to civil servants. But is it necessary to amend the Constitution to emphasise their subordination?

The name change, from Civil Service to Public Service, is of no legal consequence but it will bring back the confusion between public servants and public officers that existed before the present Constitution came into force. A judge will not be a public servant but is and will be a public officer. A permanent secretary will be both a public servant and a public officer. A police constable will not be a public servant but is and will be a public officer [he or she is also a peace officer, but that is something else altogether]. The Chief Secretary to the President and Cabinet (see below) will be a public officer and a public servant but the Public Protector (again see below) will not be a public servant though he or she will be a public officer. Confusing? Of course it is ‒ but that will be the only real effect of the proposed amendment.

9.  Chief Secretary to President and Cabinet

(Relevant Clause in Bill: Clause16)

The Bill proposes to insert a new section 204A into the Constitution establishing the office of Chief Secretary to the Office of the President and Cabinet, together with an unstated number of deputy Chief Secretaries. The Chief Secretary is to be “the most senior member of the Public Service” and other permanent secretaries will report to him or her “on any matter affecting them as a class” [whatever that means]. The Chief Secretary’s salary and other conditions of service will be fixed by the President, unlike other permanent secretaries whose conditions are fixed by the Civil Service Commission.

Comment

There seems no good reason to make the office of Chief Secretary a constitutional one, other than to enhance the holder’s self-esteem. The amendment does not say what, if anything, the Chief Secretary and his or her deputies are supposed to do.

More importantly, perhaps, the terms of office of the Chief Secretary and his or her deputies are to be fixed by the President so in this respect they will differ from permanent secretaries, who are appointed for five-year terms renewable once [section 205 of the Constitution]. The amendment does not say whether or on what grounds the President will be able to remove the Chief Secretary or a deputy from office, so they may become appointees for life enjoying salaries fixed by the President without regard to the Civil Service Commission or even the Ministry of Finance.

10.  Creation of Office of Public Protector

(Relevant Clauses in Bill: Clauses 17 and 18)

Clause 18 of the Bill will create the offices of Public Protector and Deputy Public Protector, both of whom will be appointed by the President after consultation with the JSC and Parliament’s Committee on Standing Rules and Orders.

The Public Protector will be responsible for investigating allegations that certain public officers and authorities have exercised their administrative functions unjustly, where there is no remedy by way of court proceedings reasonably available to the persons who have suffered injustice. The officers and authorities who may be investigated by the Public Protector will be members of “any Ministry or department” and “such other persons and authorities as may be prescribed by or under an Act of Parliament”.

Some functions of the Zimbabwe Human Rights Commission are transferred to the Public Protector: specifically, the investigation and remedying of conduct that violates human rights and freedoms, where the conduct is committed by “an organ of the State or a public institution or any officer of that organ or institution”. An Act of Parliament may exempt officers and authorities from investigation by the Public Protector.

Comment

The Lancaster House Constitution created the office of Ombudsman (later renamed Public Protector) but the present Constitution abolished the office in 2013, repealed the Public Protector Act and transferred the Public Protector’s unfinished cases to the Zimbabwe Human Rights Commission [para 16 of the Sixth Schedule to the Constitution]. This amendment will reverse all that, and there seems no good reason why it should do so. The people who held the office of Ombudsman/Public Protector before 2013 did not distinguish themselves and the office afforded the public little protection against misgovernment.

The extent of the jurisdiction to be conferred on the Public Protector is not clearly defined. As already stated, his or her jurisdiction is limited to investigating the conduct of “any Ministry or department or any member of such Ministry or department”; the power to investigate anyone else will have to be conferred through an Act of Parliament”. It seems therefore that the Public Protector will be able to investigate the conduct of civil servants and possibly their Ministers, but not the conduct of members of the Defence Forces or the Police Force unless they are prescribed under an Act of Parliament.

Furthermore, the relationship between the new office and the Zimbabwe Human Rights Commission is not clear-cut. Although some of the Commission’s investigatory powers are transferred to the Public Protector, the Commission will be able to take over investigations “where it determines that the dominant question in issue involves a matter pertinent to its function”. To divide responsibilities between the Commission and the Public Protector in such a vague way almost encourages jurisdictional disputes.

Finally, appointments to the office of Public Protector will essentially be in the gift of the President: he will merely have to consult the JSC and the Committee on Standing Rules and Orders before making such appointments and will not have to get their consent. The same will apply, presumably, to dismissing the Protector so he or she will hold office at the President’s pleasure.

The establishment of this office, like the office of Chief Secretary to the President and Cabinet, will represent another extension of the President’s personal power.

Overview and Concluding Remarks

Having examined its individual clauses, we now turn to look at the Bill in its totality and discuss what we consider to be its two primary interlinked aims, which are:

• to increase the Executive’s power, mostly at the expense of the other arms of government, namely Parliament and the Judiciary, and

• to concentrate that power in the person of the President.

Before doing so, however, we should make some preliminary points.

The Constitution must not be amended lightly

The Constitution was negotiated over several years by a committee comprising representatives from all the main political parties in Zimbabwe. From 1999 on there was much discussion about a new constitution during which legal and public opinions were canvassed. This culminated in the setting up of a joint Parliamentary Committee in 2008/9, and almost five more years were spent listening to public opinion. Each provision of the Constitution was the subject of debate, and often represented a compromise between different political views. When the final draft was prepared and approved by the negotiating parties it was put to a referendum and passed by an overwhelming majority of the electorate [94.5%]. The draft was then passed into law by Parliament, without a single dissenting voice.

The Constitution is the supreme law of Zimbabwe, governing relations between the Government and its people, and between the different arms of Government. Because of its nature and the way in which it was enacted, it should not be amended except for the most compelling of reasons. Although the Constitution itself states that it can be amended by a two-thirds majority of the membership of the National Assembly and the Senate [section 328(5)] the Government should not proceed with an amendment unless satisfied there is broad support for it in the country. Any political party using a two-thirds majority as an opportunity to amend the Constitution must realise that as soon as another party gets a similar majority it will also amend it, and so the Constitution will be debased by continual see-sawing amendments passed to suit the whims of the party in power.

No Valid Reasons Have Been Given for the Bill

The Government has done little to turn public opinion in favour of this Bill. It has not even explained why any of the proposed amendments are necessary or desirable. The Bill’s memorandum does no more than state, very briefly, what the amendments will do but does not explain the reasons behind them. It is important that such an explanation should be given because section 328(4) of the Constitution requires Parliament to convene meetings at which members of the public can express their views on proposed constitutional amendments. How can members of the public formulate sensible views on the Bill, much less express them, if they do not know why the Bill has been put forward?

Public consultations must take place on the Bill but will not in any measure equal the consultations that took place during the constitution-making process, nor will they equate to a country-wide referendum.

It will not be enough for the Minister to explain the reasons for the Bill when he delivers his second reading speech to Members of Parliament after he has presented the Bill in the National Assembly, because it will then be too late for members of the public to express their views on those reasons.

We now turn to the two main themes of the Bill.

1. Increase in the power of the Executive

The Executive and Parliament

As we suggested above, extending the provision for 60 party-list women members of the National Assembly for another 10 years, and adding 10 party-list youth members to the National Assembly, will increase the number of parliamentarians on whom the Government can rely on for support without significantly increasing the real power of women and youths in politics ‒ a goal which would be better achieved by appointing more women and youths as Ministers and putting measures in place to ensure parties select more women and youths for election in constituencies.

The Executive and the Judiciary

Also as we suggested above, what the Bill seeks to do is:

• Permit the President to promote judges of the High Court and the Supreme Court to a higher court on the recommendation of the Judicial Service Commission [JSC], without the need for public interviews, thereby opening the door to promotions on the basis of political suitability and cronyism.

• Allow judges of the Constitutional Court and the Supreme Court to continue to serve beyond the current retirement age of 70, if the President after consulting the JSC consents to their doing so. This will strip those judges of their security of tenure and hence their independence, since they will hold office from year to year subject to the President’s consent.

The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance. Judicial officers must be independent and impartial, and must be perceived to be so by the general public. By increasing the President’s power over judges, the Bill will reduce their independence and their perceived impartiality.

Retreat from Devolution

One of the principles of good governance, which itself is a founding value of our Constitution, is the devolution and decentralisation of governmental power and functions [section 3(2)(l) of the Constitution]. Pursuant to this principle, Chapter 14 of the Constitution establishes provincial and metropolitan councils to further the social and economic development of Zimbabwe’s provinces.

The Bill will reduce the size of councils by providing that members of Parliament will no longer be council members. As we suggested above, this may improve the efficiency of the councils but it will make them less representative of the political leadership of their provinces. By making councils less influential the Bill will correspondingly increase the influence and power of central government.

2. Concentration of Power in the President Personally

The second main theme of the Bill is to concentrate executive power in the person of the President. The President’s personal power will be increased in the following ways:

Power to choose Vice-Presidents

As we outlined above, starting from the election in 2023 presidential candidates will have to nominate two vice-presidential candidates to stand together with them as a team; if elected, the Vice-Presidents will have the same security of tenure as the President ‒ i.e. the President will not be able to dismiss them ‒ and succession in the event of the President’s ceasing to hold office will be fixed before the election.

The Bill seeks to preserve the system that is currently in force, under which the President chooses Vice-Presidents after his or her election and they hold office at the President’s pleasure. Obviously this will increase the President’s control over his Vice-Presidents.

Appointment of non-parliamentary Ministers

The Bill seeks to allow the President to appoint up to seven Ministers from outside Parliament. At present he can appoint only five.

Increasing the number of non-parliamentary Ministers will extend the President’s power to control his Cabinet as well as extending his powers of patronage. Non-parliamentary Ministers, moreover, may not be amenable to attending Parliament and answering questions from parliamentarians.

Appointment and dismissal of the Prosecutor-General

At present the procedures for appointing and dismissing the Prosecutor-General are the same as those for a judge. As we said above, the Bill proposes to alter this by removing the need for public interviews of candidates before the President appoints a Prosecutor-General, and by giving the President the ultimate discretion to decide whether or not a Prosecutor-General should be dismissed.

Once again, the President’s personal power will be increased. It may be noted that in deciding on the appointment or dismissal of a Prosecutor-General the President will not have to act on the advice of his Cabinet: section 110(2)(d) and (6) of the Constitution. The proposed amendment will also, of course, decrease the Prosecutor-General’s independence, something on which great weight was put during the constitution-making process.

Chief Secretary to the President and Cabinet

By making the Chief Secretary to the Office of the President and Cabinet a constitutional office-holder, the Bill will increase his or her status and the already extensive influence of the President’s Office. By giving the President, rather than the Civil Service Commission, power to fix the Chief Secretary’s salary and term of office, the Bill will once again increase the President’s personal power because he will not have to consult the Cabinet.

Public Protector

Here too the Bill will increase the President’s personal power by allowing him to appoint and dismiss the Public Protector after mere consultation (in this case with the Judicial Service Commission and Parliament’s Committee on Standing Rules and Orders).

In other words, the office of Public Protector will be yet another office within the President’s gift.

Other Provisions of the Bill

The Bill does contain a couple of provisions unrelated to the two main themes we have identified – provisions, in other words, which will not significantly increase the powers of the Government or the President. These provisions are:

• Removing the link between the delimitation of constituencies and the holding of censuses. It is not necessary to amend the Constitution to achieve this: if there is too little time to delimit constituencies between the next census (due in 2022) and the next general election (due in 2023) then the Census and Statistics Act can easily be amended to bring forward the census to 2021.

• Changing the name of the Civil Service to the Public Service. If ever there was an unnecessary amendment, this is it. It amounts to mere tinkering with the Constitution and furthermore will lead to considerable confusion.

Conclusion

The effect of the Bill will be to remove constitutional limits on the exercise of power by the Executive and to concentrate that power in the central government and in the President personally.

It would be an exaggeration to say that the Bill represents a wholesale assault on Zimbabwe’s democracy: it doesn’t go that far. If enacted, however, it will amount to a chipping away at our constitutional democracy and will go some way towards restoring Mr Mugabe’s constitutional dictatorship. In this sense therefore parliamentarians should consider that a vote for the Bill is a vote for a return to a Mugabe-like presidency.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download