The government has gazetted Constitution of Zimbabwe Amendment (No. 1) Bill. This is the first proposed amendment since the Constitution came into force on August 22, 2013. It is important to remind readers that the previous Constitution was amended a whooping 20 times.
Opinion: John Makamure
It is not surprising why such a development was condemned by constitutional scholars, given that the supreme law is sacrosanct.
The Constitution of Zimbabwe Amendment (No.1) Bill seeks to change the appointment procedure of the Chief Justice, deputy Chief Justice and the Judge President of the High Court. Section 180 is being amended to allow appointment to the three offices to be done by the President after consultation with the Judicial Service Commission.
If the appointment of the three is not consistent with any recommendation made by the commission during the course of consultation, then the President will have to “inform the Senate, of that fact, as soon as possible”.
The Bill is clear that “for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final”. The President is only obliged to inform the Senate, but the Senate has no power to act on that information, neither can the appointment be challenged in a court of law. I really don’t understand why the Senate has to be informed if it has no power to do anything. Such provisions make the Bill bad law.
Anyway, my article will not dwell too much on the content of the Bill. Rather, I will focus on the processes that it will follow in Parliament. Section 328(3) states that a Constitutional Bill may not be presented in the Senate or the National Assembly unless the Speaker has given at least 90 days’ notice in the Gazette of the precise terms of the Bill.
This means the Bill can only be introduced in Parliament from April. Crafters of the Constitution came up with this time frame in order to give members of the public sufficient time to debate the Bill and decide if it should proceed or not. Amendment of a Constitution, which is the supreme law of the land, is such an important issue that it has to obtain seal of approval from the public to proceed. I repeat that the Constitution is sacrosanct. One cannot, therefore, wake up tomorrow and decide to change a provision for his or her own interests. The citizens have to give one the go-head.
What I am talking about is confirmed by section 328(4) of the Constitution, which states that immediately after the Speaker has given notice of a Constitutional Bill, Parliament “must” invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, “and must convene meetings and provide facilities to enable the public to do so”.
My interpretation of this provision is that it speaks to serious public consultation, and not merely going through the motions as happened in some instances in the past. For a Constitutional Bill, it is mandatory for Parliament to consult citizens in all corners of the country.
This means huge amounts of financial resources must be provided by the government to allow Parliament to carry out such consultation as envisaged by the Constitution. There is no other option. Anything to the contrary can be open to constitutional litigation. The government must understand that amending a Constitution is a very expensive exercise. It is not a micky mouse game.
The public consultation envisaged by section 328(4) is similar to a referendum. We all know how expensive a referendum is.
Although it is only amendments to provisions of Chapter 4 (Bill of Rights) and Chapter 16 (Agricultural land) which have to be subjected to a proper referendum, my interpretation of section 328 is that the public meetings that have to be convened by Parliament are some form of a referendum that will require millions of dollars to be convened.
We know that for a Constitutional Bill to be passed it requires at least two-thirds of the total membership of either house to say yes. We also know that the ruling Zanu PF has the required two-thirds majority in Parliament.
However, it is not about numbers in Parliament.
This is not significant. What is important is what the people have said. Passing a Bill contrary to public sentiment is a serious violation of the tenets of democracy.
A small group of individuals can not sit in Parliament to decide for the majority and then claim that they are advancing democracy. That must be rejected by every right-thinking Zimbabwean.
We must all be guided by the founding values of transparency, justice, accountability and responsiveness, among others.
Accountability and responsiveness mean the views of the people must hold sway in political and economic decision-making. So we cannot just temper with the Constitution when we feel like fulfilling our own narrow interests. If we have to do that, then there must be serious and wider public consultation.
Let us not make it a habit to amend the Constitution willy-nilly. As the supreme law of the land, the Constitution must be respected as such. We cannot start amending it when the ink is not even dry. Parliament must protect the Constitution, as provided for in section 119. Protection of the Constitution also means preventing haphazard amendments.
John Makamure is the executive director of the Southern African Parliamentary Support Trust. Feedback: firstname.lastname@example.org and my facebook page.