with Fidelicy Nyamukondiwa
The date 20 May 2013 is
a memorable day in the history and jurisprudence of Zimbabwe. This is the day
the 2013 Constitution of Zimbabwe breathed life, a milestone which saw the 1980
Lanchester House Constitution being thrown into the trash bin. On this date, Zimbabwe
adopted a Constitution which was to become one of the best, not only in Africa
but in the World. In 2017, the first amendment to this Constitution was made. On
31 December 2019, the Constitution of
Zimbabwe Amendment (No.2) Bill, 2019 aimed to amend the 2013 Constitution
for the second time was gazetted.
This editorial is not
mearnt to analyze, criticize, condemn, applaud nor commend any of the Bill’s proposed
amendments. It seeks to shed light on the Constitution amendment process. Its
main purpose is to interpret/simplify the Constitutional Bill for all and
sundry.
How is the Constitution
amended?
The Constitution can be
amended through what is known as a Constitutional Bill. The Speaker of
Parliament must first give notice of an intention to make such amendment. This
is essentially what was done through the Constitution
of Zimbabwe Amendment (No.2) Bill [General Notice 2186 of 2019].Immediately
after a notice is made, the Parliament must invite members of the public to
express their views on the proposed amendments .Such views can be expressed by
making written submissions to the Parliament or by participating in public
meetings organised by the Parliament. The
Parliament has since set the public meeting dates and venues. The meetings will
be held from 29 March to 4 April 2020.
After notice is given
and after the public is given an opportunity to express their views, the Bill must
be presented and debated in Parliament. This can only be done after 90 days of
the date of notice. The Bill in question
will therefore be considered by Parliament only after 16 April 2020.
Members of both the
National Assembly and the Senate must vote to pass the Bill. It must be passed by
the affirmative votes of two-thirds of the membership of each
House. If passed, it must thereafter be transmitted to the President for assent
and signature. There are some types of amendments which must be subjected to a
national referendum before being transmitted to the President for assent. However,
none of the Bill’s proposed amendments require a national referendum.
The
proposed amendments.
Every Bill has what are
known as clauses. A clause is a distinct section or provision in a legal
document or instrument. The 2019 Constitution Amendment Bill has 27 clauses. It is however not correct to say there are 27 proposed amendments.
Clause
1 for instance, sets out the name (short title) of the Bill. To conveniently
unpack the Bill, I shall classify the proposed amendments and make use of
thirteen numbered headings as following;
1. The
running mate concept.
In terms of the current
system, only the President is voted for in an election. Soon after assuming
office, the president picks and appoints two Vice Presidents of choice. In the event
of the President ceasing to hold office for any reason, the Vice-President (VP)
who last acted as President will take over until the ruling political party
nominates a successor.
The 2013 Constitution
introduced what is known as the running mate concept. This concept entails that
a presidential candidate must pick and specify two persons who will be his/her
first and second VPs in the event of winning the election. This means that if a
citizen votes for a President, he/she will be simultaneously voting for two
named VPs. Simply expressed, two aspiring VPs will run together with the
presidential candidate on a joint ticket.
They will be his/her running mates in the election race. The running mate concept demands that if an
elected President, for any reason, ceases to hold office before the end of the
term, the first VP will take over as President until the next presidential election.
It must be noted that when
the 2013 Constitution became operational, the running mate concept was lawfully
suspended for 10 years. This means that the running mate concept is set to
become operational in the 2023 harmonized election. Clauses 2 to 9 of the Bill
seeks to remove this running mate concept from the Constitution. This means that
if the bill is passed, assented and signed into law, we will continue using the
current system which allows the president to pick and appoint VPs after winning
the election.
2. Appointment
of Ministers and Deputy Ministers
Ministers are
ordinarily appointed from within the Parliament, that is from amongst Senators and Members of the National Assembly.
The Constitution allows the
President to appoint a maximum of five Ministers and Deputy Ministers from
outside Parliament. These must be chosen for their professional skills and
competence. The non-parliamentary ministers are allowed to sit and speak in Parliament
but cannot vote therein. Clause 10 of the Bill seeks to increase the number of
such ministers from five to seven.
3. Women
and Youths in Parliament.
There
currently exist what is known as a Party-list system of proportional
representation. In terms of this system, 60 parliamentary seats are reserved
for women. Six women are elected from
each of the 10 provinces of Zimbabwe. Each political party is allowed to field
women candidates to contest for the 60 seats. In terms of the Constitution, this
special provision to reserve seats for women was scheduled to run for the first
two parliaments after 20 May 2013. This means that, there shall be no seats
reserved for women in the 2023 harmonised elections. Clause 11 of the Bill
seeks to extend the party list system for two additional parliaments. This
means that if the Bill sails through, 60 women seats will be reserved in the
2023 elections and again in the next elections.
Clause 11 also
proposes to introduce a similar party-list system which
will see 10 parliamentary seats being reserved for youths. The Constitution
define ‘Youths’ as people aged between the ages of fifteen and thirty-five. Youths aged between twenty one and thirty-five
will be eligible for election. In terms of the proposal, one youth member will be
chosen from each province.
4. Delimitation
of Electoral boundaries
Delimitation in this
context means the setting of electoral boundaries, that is to say the division
of wards and constituencies. In terms of the current system, such boundaries
are divided by ZEC, soon after the national census which is held after 10 years.
Clause 12 of the Bill seeks to remove the 10 year period and the aspect of the
delimitation being done after a population census. ZEC will have a discretion
to determine when to set the electoral boundaries.
5. Promotion
of Judges.
For the avoidance of
doubt, the Bill does not seek to amend the process of appointing ‘a person’ as
a High Court or Labour Court Judge. The Bill proposes to amend the manner in
which already sitting Judges are promoted. A judge is normally promoted through
an appointment to a superior court. The
hierarchy is arguably as following; Labour Court, High Court, Supreme Court and
or Constitutional Court. The current system mandates that a judge be subjected
to a public interview before promotion. Clause 13 of the Bill proposes that the
President be allowed to promote sitting
judges without subjecting them to the public interview process.
6. Tenure
of Judges.
In terms of the
Constitution, all judges must automatically retire upon reaching 70 years of
age. If the Bill is to be passed and signed into law, judges and acting judges
of the Supreme Court and Constitutional Court will be allowed to extend tenure
for a maximum of five, one year periods. Put differently, Supreme Court and
Constitutional Court Judges will be able to serve as judges until they attain
75years if they so wish. The judge so wishing will have to submit a medical
report confirming that he/she is still mentally and physically fit to remain in
office. The Bill proposes that the report be submitted to the President who
will have to consult the Judicial Service Commission (JSC) in determining the
‘application’ for extension.
7. Appointment
of Prosecutor General.
The current system entails
that the Prosecutor General (PG), that is to say the head of the National Prosecuting
Authority (NPA) is appointed through a public interview process conducted by
the JSC. The JSC first advertises the post after which the public and the President
nominates candidates. Those nominated will be subjected to public interviews.
The JSC then prepares a list of the best three candidates. The President then
picks the PG from that list …Clause 19 proposes that the President be allowed
to appoint the PG without advertisement of the post, nominations nor the public
interview process. What the president ought to do in terms of the Bill is to
seek advice from the JSC.
8. Removal
of the Prosecutor General
The current system
provides that the PG is removed from office due to ‘gross misconduct’ among other factors. The Bill proposes ‘serious misconduct’ in place of ‘gross misconduct’. The current system
provides that the appointment of a tribunal to determine the suitability of the
PG is recommended by the JSC. The Bill seeks to introduce a system in which the
President considers the appointment of a tribunal on his/her own initiative.
The Constitution
provides that in determining whether or not a PG must be removed, the President
must act on the recommendation of the tribunal. If the Bill is to be passed,
the President will no longer be mandated to act on the Tribunal’s recommendations.
The current system provides that at least one of the members of the tribunal be
a lawyer chosen by the Law Society of Zimbabwe. The Bill disregards the latter
provision.
9. Chief
Secretary to the Office of the President and Cabinet.
Clause 16 proposes to
insert a new section in the Constitution which will make provision for the
appointment and role of the Chief Secretary to the Office of the President and
Cabinet and his or her deputies. The Chief Secretary will be appointed by the President
and will be the most senior member of the Public Service. The terms of office
and conditions of service such as the salary of the Chief Secretary and his or
her deputies will be fixed by the President.
10. The
ZHRC & Office Public Protector.
There used
to be an office of the Ombudsman before it was later renamed to Public Protector
(PP). The Constitution abolished this office and conferred its powers to the
Zimbabwe Human Rights Commission (ZHRC). Clause 18 of the Bill proposes to recreate
the PP’s office. The President will appoint the PP and his/her deputy after
consulting the JSC and the Parliament’s Committee on Standing Rules and Orders.
A Public official or institution may at times act in a
manner which results in injustice. The office of the PP will be responsible for
investigating such injustices in cases where there would be no court remedies
for the aggrieved person. The PP will also take over functions of the ZHRC in
the investigation and administration of justice in cases involving public
officers or public institutions. Clause 17 proposes that
the ZHRC takes over some investigations instituted by the PP and further
proposes that it refers some investigations to the PP. The Bill proposes that there be an Act of parliament
which may confer additional functions of the PP or exempt some public officials
and institutions from being investigated by the PP.
11. Provincial
& Metropolitan councils.
The Bill seeks to remove members of Parliament from the
membership of provincial councils and merge the provisions relating to
provincial and metropolitan councils. Members of Parliament will no longer be
council members. This means that a member of parliament who is elected to a council
will cease to be such.
12. Parliament
Control over Fiscal Obligations.
To allow the Parliament
to control fiscal obligations that impose heavy burdens on the country, the
Constitution provides that an agreement which is not an international treaty
but which has been concluded by the President with one or more foreign
organisations or entities and which imposes fiscal obligations on the country is
not binding on the country until it has been approved by Parliament. The Bill
seeks to reduce Parliament’s control by using the term ‘international organisation’ in place of ‘foreign organisation’.
13. Minor
Amendments
Chapter 10 of the
Constitution makes provision for the Civil Service which is responsible for
administering the country. Clause 15 of the bill proposes to change the description
and name of the Civil Service to ‘Public
Service’. Clause 27 provides for the substitution of the term ‘Civil Service Commission’. It proposes that
it be referred to as the ‘Public Service
Commission’.
Conclusion.
As long as the
Constitution amendment procedure set out in section 328 of the Constitution is
strictly followed, nothing ought to stop the Constitution of Zimbabwe Amendment (No.2) Bill, 2019 from being
passed into law. So far, everything seem
to have been done above board. The Parliament has since opened the floor for
citizens to make written submissions regarding the Constitutional Bill. The
dates and venues for public meetings have since been set. Those who wish to
criticize, condemn, applaud or commend the Bill have an opportunity to
peacefully do so during these public meetings. It is hoped that this editorial
will be a handy tool for academics, lawyers, politicians, students, journalists
or concerned citizens who wish to analyse the Bill.
Fiat
Justitia Ruat Caelum!
