By Veritas Zimbabwe
In previous Constitution Watches [see below for links to these bulletins] we analysed specific provisions of the Constitution of Zimbabwe Amendment (No. 2) Bill, which ‒ coronavirus permitting ‒ is likely to be presented in Parliament soon after the 17th April.
In this Constitution Watch we shall 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 hearings that will take place on the Bill will not in any measure equal the consultation which 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
(a) Limiting Parliament’s power to veto loan agreements
Clause 23 of the Bill, if proceeded with, will deprive Parliament of its right to approve or veto financing agreements entered into by the Government with foreign entities such as banks. This right is essential for Parliament to oversee State revenues and expenditures in terms of section 299 of the Constitution, and removing it would seriously diminish Parliament’s power vis-à-vis the Executive.
On 3rd March the Minister indicated to the National Assembly that he does not intend to proceed with clause 23, but the clause remains part of the Bill. The fact that he may withdraw the clause suggests it was not properly thought out in the first place‒ in other words, that there were no compelling reasons for it.
(b) Extending provision for party-list members of Assembly
As we suggested in Constitution Watch 5/2020 of the 22nd February [link] 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
As noted in Constitution Watch 2/2020 [link], 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 said in Constitution Watch 5/2020 [link], 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 outlined in Constitution Watch 1/2020 [link], 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 in Constitution Watch 4/2020 of the 28th January [link], 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, the 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.
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. [See Constitution Watch 3/2020 of 28th January [link]
· 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 as pointed out in Constitution Watch 4/2020 28th January [link] will lead to considerable confusion.
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 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.