I got really disturbed hearing President Robert Mugabe implying during his address to the Second All-Stakeholders’ Conference on the new constitution, that Parliament should exist to rubber-stamp Executive decisions. Why this was disturbing is that the words were uttered by a legally trained person who should understand and embrace the principle of separation of powers between the Executive, Judiciary and Legislature.
Report by John Makamure
Copac is a parliamentary committee, which basically means Parliament is legally in charge of the constitution-making process.
It is Copac that should consult Zimbabwean citizens and make the process all-inclusive and people-driven. Parliament is one of the three arms of government, the others being the Executive and the Judiciary. The principle of separation of powers requires that Parliament must make law, the Judiciary must professionally interpret the law and the Executive must dispassionately enforce the law. All these institutions must respect the law and abide by it. Under a strict understanding of the principle of separation of powers, each arm of the State should not interfere with the other arms of the State. The principle is aimed at ensuring the use of State power is not abused and constitutes a system of checks and balances on State power.
A key component of representative democracy is a strong Parliament. The Inter-Parliamentary Union defines a parliament as a generic term depicting a representative body of individuals to whom people have entrusted the responsibility of representing them by laying down the legal framework within which society shall be governed and seeing to it that legal conditions are implemented in a responsible manner by the Executive.
It is important to note from this definition that it is through parliamentarians, and not Cabinet or principals, that people expect to be represented, and that it is Parliament which is responsible for enacting the necessary legal framework and overseeing how the Executive is enforcing these legal conditions.
So there is nothing amiss in Copac refusing to delegate the constitution-making process to the Executive. As the elected body that represents society in all its diversity, Parliament has a unique responsibility for reconciling the conflicting interests and expectations of different groups and communities through democratic means of dialogue and compromise. So it is through Copac that we are most likely to see consensus being reached as happened with the current draft, although it was produced after long delays characterised by political bickering. It was only after political parties decided to interfere with the Copac-endorsed draft that we are now faced with the current disagreements.
While it is true that our Parliament has not been able to fulfill its law-making responsibilities by enacting legislation that advances the promotion and protection of human rights, this does not justify the Executive usurping the powers of Parliament. One of the main reasons why Parliament has been weak in the area of law making is the common practice whereby draft legislation emanates from the Executive.
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Private member Bills have been fewer and far between. In fact, attempts by individual members of Parliament to steer private member Bills in Parliament have met stiff resistance from partisan political interests. It is the Executive that has fueled this polarisation in Parliament because of their attitude that Parliament should merely rubber-stamp Cabinet decisions.
I like the current draft constitution in that it tries to weaken law-making by the Executive. We have numerous examples where ministers have abused their power to make statutory instruments and ended up creating chaos in the economy.
The draft constitution says that Parliament may, through an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act.
However, such action must not delegate Parliament’s primary law-making power; that statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights; that statutory instruments must be consistent with the Act of Parliament under which they are made; that the Act must specify the limits of the power, the nature and scope of the statutory instrument that may be made and the principles and standards applicable to the statutory instrument; that statutory instruments do not have the force of law unless they have been published in the Gazette; and that statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.
- John Makamure is the executive director of the Southern African Parliamentary Support Trust writing in his personal capacity. Feedback: [email protected]
