THE purpose of this BSR is to contribute to the body of knowledge on the duties and responsibilities of elected representatives at national, provincial and local levels.
By Alex T. Magaisa
This could help voters make informed choices as the country heads towards another general election in a few months’ time. A politically literate electorate is a critical component in building a liberal democratic culture. Political literacy helps voters to make informed decisions during elections.
However, over the last few years, I have observed that levels of political literacy are low and most people do not actually understand our system of government. For example, some of the things expected of Members of Parliament or what candidates for Parliament promise to the electorate are well beyond their capacity. This BSR gives an insight into our system of government, focusing specifically on the President and Cabinet, Parliament and Local Government.
What is the State?
The State is more than the government. The government may change but the State endures over time. The State includes the government, bureaucracy, military, Judiciary, Legislature and other institutions. The State is the entity which has legitimate authority over a defined geographic area and population. It derives its authority from and represents the people. The Constitution is the primary document that regulates the relationship between the State and citizens.
Citizenship provides the connection between the State and the people, who are regarded as citizens. The State has certain duties towards the citizens such as protection and likewise citizens have duties towards the state such as loyalty and paying taxes which the State has the power to levy and collect. Section 1 of the Constitution establishes Zimbabwe as a “unitary, sovereign and democratic republic”. Chapter 3 deals with eligibility for citizenship as well as the rights and responsibilities of citizens.
Chapter 4 demarcates areas from which the State is prohibited from interfering as far as the rights and freedoms of citizens are concerned. This is called the Declaration of Rights. It is an important chapter which demarcates the limits of the State, an important part of a liberal democratic system. If the individual is unhappy with the conduct of the State and believes the State has interfered with their rights, they are entitled to approach the courts of law for redress.
Arms of State
The State is made up of three arms: the Executive, Legislature and Judiciary. There are also other institutions which fall under the State. They include the military, police, civil service, and independent commissions and bodies such as the Zimbabwe Electoral Commission and the National Prosecuting Authority. This is why when an alleged criminal is prosecuted by the NPA, the case is described as the “State versus the individual”. Crimes committed against the individual are regarded as offences against the State. It is, therefore, the State that has the primary powers of prosecution. In exceptional circumstances, the courts may permit private prosecution as happened in the case against former MP, Munyaradzi Kereke. For the purpose of this article, we will focus on the Executive, Legislature and local authorities in order to understand their duties and responsibilities and what the electorate can expect from them.
The Executive is what most people commonly refer to as government. The President is the head of government and he is the principal officer of the State. Hence he is referred to as the Head of State and Government. In some countries, there is a separation between head of State and head of government. In our first Constitution, which we got at independence, the President and Prime Minister were two separate offices. The Prime Minister held executive power and was head of government while the President was the head of State and largely a ceremonial figure. This was the Westminster model, the system of government found in Great Britain, the former colonial master. When we got independence, they gave us a system that was similar to their own in a number of ways. Under that system, the Prime Minister was the leader of the party with the highest number of seats in parliament and was, therefore, an MP and was directly accountable to Parliament. That system allowed the opposition to hold the head of government to account more directly.
However, the then Prime Minister, Robert Mugabe, did not like the limitations imposed by this British-style system of government. He preferred a strong presidency. His allies, like Eddison Zvobgo, who also harboured ambitions to one day succeed Mugabe were happy to oblige and he was the architect of a seminal constitutional amendment which fundamentally altered the system of government in 1987. Constitutional Amendment No. 7 introduced the Executive Presidency, thereby replacing the office of the Prime Minister and the ceremonial Presidency, which had been held by Reverend Canaan Banana. As Executive President, Mugabe held an extensive array of powers which helped solidify authoritarianism.
During the process of making the new constitution which was adopted in 2013, strenuous efforts were made to reduce the President’s executive powers and to strengthen Parliament to provide balance. However, Zanu PF resisted many of these reforms, preferring to keep a strong presidency. Their mode during that process was to defend Mugabe, rather than to write a fair and democratic Constitution. Some people believe that despite these efforts, the constitution still gives too much power to the president. However, even those efforts to limit the President’s powers have already been undone, with Amendment No. 1 passed in 2017 giving more powers to the President to unilaterally appoint the Chief Justice, Deputy Chief Justice and the Judge President. This changed a rule which required candidates for these offices to be chosen through a process of public interviews which was more transparent and limited the power of the President. It is useful to note that the current President pushed for that amendment when he was Vice President and Justice Minister under Mugabe.
There is no mandatory obligation on the President to attend Parliament to answer questions from MPs. The President may attend if he is asked to do so by Parliament but he can choose not to. Proposals to have the President answer directly to Parliament were strongly resisted by ZANU PF during the constitution-making process. They argued that the President was popularly elected on his own account in a separate election. A progressive President who wants to promote accountability would have no problem answering the call of Parliament. Mugabe never answered to Parliament. It would be good for the current Parliament to test Mnangagwa’s progressive credentials by calling him to answer questions, for example on election preparations. His response would be a useful indicator as to what kind of leader he is and whether he will follow Mugabe’s path of treating Parliament with disdain.
The President is elected on a nationwide basis. Since elections are harmonised and voting is polling station-based, it means voters must vote at the polling station at which they are registered to vote. The winner must get an absolute majority to be declared president. This means getting at least 50% + 1 of the total votes cast in the election. Should they get less than the minimum threshold, there will be a run-off election which will pit the winner and the first-runner up. This is what happened in the highly controversial 2008 elections when Morgan Tsvangirai was declared as having won the first election but since it was not an absolute majority, a run-off had to be held.
The Executive also includes members of the Cabinet. They are appointed by and serve at the pleasure of the President. The majority of Cabinet members are appointed from Parliament while the President is permitted to appoint up to 5 Ministers from outside Parliament. The idea is to allow the President to appoint persons with certain skills needed in Cabinet but may be missing from among the elected parliamentarians.
In choosing a President voters must understand that they are selecting the principal officer of the State. This person must be astute and capable of providing national leadership, with a clear vision for the country. Since the President has a lot of power, the person must be someone who can exercise restraint and is not prone to abuse of power. Voters must look at the track record of candidates whether in government or elsewhere to determine how they have exercised power and whether they have abused it. If they have abused it, the likelihood is they would not hesitate to do it again. It is important to look at their attitude to the Constitution. If they have violated or disregarded the constitution before, they are likely to do it again. Old habits die hard. But there are many factors to consider.
The legislature consists of Parliament and the President. It has legislative authority which specifically means the power to make laws “for the peace, order and good governance of Zimbabwe” according to the Constitution. Only the legislature can make primary legislation. The legislature also has the power to amend the Constitution in a manner and in circumstances that are specially provided for in that Constitution. For example, it can only amend the Constitution if approved by at least two thirds majority of Parliament and further, it can only amend a provision of the Declaration of Rights if the change is approved by referendum and is a progressive change which adds to rather than subtracts from already existing rights. The Legislature also has the power to confer powers on other authorities, such as a Minister, to make subordinate legislation. However, when such authorities make subordinate legislation, they must stick to their mandate otherwise their legislation will be declared null and void.
The net effect of this is that law-making is the primary responsibility of a Member of Parliament or Senator (hereafter referred to collectively as MPs). We shall return to these duties as this is an area where most people are unsure about the role of MPs and what they should expect from them in terms of the law. First, it is important to note that Parliament consists of two separate Houses: the National Assembly and the Senate.
The National Assembly consists of 270 MPs (which for a small country is unreasonably large). Of these, 210 MPs are elected directly in 210 physical constituencies spread across the country. The remaining 60 is a quota for women who are chosen on the basis of proportional representation based on the number of votes for members of the National Assembly in the 10 provinces. This means each province has 6 female MPs based on proportional representation. The next election is the last in which this additional quota of 60 women is allowed. In the 2023 elections, there will be no quota of 60 additional female MPs. The quota was introduced for the two parliaments as an affirmative action measure to promote women’s presence and participation in politics and in Parliament.
The Senate consists of 80 Senators. 6 are elected from each of the 10 provinces (total 60) on the basis of proportional representation based on the number of votes for each party in the election of National Assembly members. The party list must ensure that female and male candidates alternate to enhance gender equality. 18 of the Senators are Chiefs – the President and Deputy President of the National Council of Chiefs and 2 from each of the 8 provinces (excluding the Metropolitan provinces). The final two are special seats reserved for representation of persons living with disabilities. There is a special provision in the Electoral Act which defines the electoral college which represents the interests of persons living with disabilities.
This means there is no direct election for members of the Senate. They do not represent specific constituencies but they represent the province. Their election is based on the votes that are obtained by candidates contesting elections for the National Assembly. The main parliamentary election is therefore at the level of the National Assembly. Senators ride on the success of candidates for National Assembly seats. Members of Senate tend to be older, with the minimum age to qualify set at 40 while the minimum age to be an MP at the National Assembly is 21. The Senate route is therefore a far easier way of getting into Parliament for those who are no longer interested in the gruelling winner-takes-all competition in the National Assembly. They will still enjoy the same privileges and benefits of being in Parliament. Some people think the Senate is a waste and it is difficult to argue against it given the size of the country and the fact that it really doesn’t add much to the legislative process. It is now being used more like a retirement home for older politicians who can no longer stand the heat of competitive politics in the National Assembly.
The President can appoint members of Cabinet from both the National Assembly and the Senate. The 5 additional members of Cabinet who are appointed from outside Parliament are allowed to sit and speak in either House but they do not have the right to vote when a vote is called in Parliament. The Attorney General who is appointed by the President is also allowed to sit and speak in either the Senate or National Assembly but he has no power to vote.
What is the constitutional role of MPs?
As already stated, MPs are the law-makers of the nation. In practice, however, Bills are almost always initiated by Ministers. Private members’ Bills can be initiated by individual members but it’s a struggle to get them through the process without government backing. After getting Cabinet approval, Bills are brought to Parliament where they go through the various stages before they are passed by simple majority. However, they do not become law until they are signed by the President.
There is a committee of parliament called the Parliamentary Legal Committee (PLC), the majority of whose members must be lawyers, which scrutinises every Bill before it is passed by Parliament to check and ensure that it does not violate the fundamental rights and freedoms set out in the Constitution. This is why it is important to have some lawyers in parliament, preferably from each party so that the PLC is fairly and adequately represented. The PLC has a critical role in fulfilling Parliament’s role in defending the Constitution and its members are usually the busiest. This role however, may not be known by constituents, yet it is a critical one in the exercise of Parliament’s mandate.
Since their primary role is to make law, the effectiveness of an MP is seen by their participation in the law-making process. The quality of laws depends on the quality of MPs and their ability to debate issues. MPs who have no capacity to understand what they are doing or the laws they are passing serve no purpose. It is possible that some MPs have never contributed to a debate on a Bill except raising their hand to vote for legislation at the end of the process. By comparison, some MPs have been very active in the law-making process, questioning Bills and Ministers and proposing amendments. This is the work that MPs are elected to do and it would be good if the electorate were properly informed on the performance of their MP in this process.
The second role of Parliament is to protect the Constitution and to ensure that all laws are constitutionally compliant and that the government and all institutions and agencies act constitutionally and in the national interest. Therefore, when a government signs a loan agreement with another country, it is incumbent upon Parliament to check and scrutinise the agreement to ensure that it is in the national interest. If a President or Minister is violating the constitution, Parliament has a duty to take measures to protect the Constitution. The removal procedure (commonly referred to as impeachment) which was activated to remove former President Robert Mugabe last November is an example of a mechanism designed to protect the Constitution.
The third critical role of Parliament is to hold the government accountable. The system of checks and balances is very important in a liberal democracy. It provides a check and limitation on power, therefore preventing its abuse. According to section 119(3) of the Constitution, Parliament plays this oversight role, ensuring that “all institutions and agencies of the State and government at every level are accountable to Parliament”. It follows that one of the most critical roles of an MP, apart from the law-making function is to hold government accountable.
One way by which MPs hold Ministers to account is by asking them questions in Parliament. Vice Presidents and Ministers are required by the Constitution to attend Parliament to answer questions when called to do so by Parliament. Some Ministers have a habit of avoiding Parliament or arrogantly refusing to answer questions. Voters should take note of such MPs because they are undermining the role of Parliament. The Constitution has facilities to support MPs role in holding government to account. For example, section 148 provides extensive privileges and immunities to MPs, which means they have freedom of speech in Parliament and committees. This gives them protection from liability for civil or criminal proceedings for whatever they say or produce in Parliament. There is therefore no reason why an MP should shy away from participating in parliamentary debates.
However, while some MPs are very active in Parliament and committees, some may go through the whole term without uttering a single word. Some simply come to sign the register, sleep or leave Parliament shortly afterwards. They do this to make sure they get their allowances. These MPs are not performing their core mandate. They are not fit for purpose. The electorate must demand to know the performance of their MP in parliament, which is why it is important to have a performance monitoring mechanism to help citizens who do not have access to parliamentary activities.
Another way through which Parliament holds Ministers and others to account is through portfolio committee hearings. There have been some high profile portfolio committee hearings in recent years, made more visible to the public thanks to technology, social media and civil society groups such as Veritas and OpenParly. These committees have the power to call any person to testify before them under oath. Some MPs have been very active in this role, demonstrating the performance expected of MPs. The limitations of other MPs are exposed on such occasions since they fail to perform or where they try, their performance is inept. If MPs who sit in such a committee are unable to contribute to the process, they are not fit for purpose as this is one of the primary roles of an MP. It is important therefore to monitor the performance of MPs in such committees and processes.
There are other specific powers that Parliament can exercise in terms of the Constitution. One of them, as referred to already, is the power to impeach the President on the basis of any of the listed grounds. Another is the power to review and approve the national budget. Parliament also has oversight of State revenues and expenditure, making sure that all revenue is accounted for and expenditure is properly incurred and limits are observed. It must also set limits on public borrowings by the State. Section 300(3) of the Constitution is clear that within 2 months of a loan agreement or guarantee being concluded, the Minister must publish its terms in the Government Gazette. At least twice a year, the Minister of Finance is required to report to Parliament on the performance of the loans raised or guaranteed by the State. Thus, all these deals that government is reportedly signing must be thoroughly scrutinised by Parliament. But these provisions will work more effectively if MPs are competent enough to perform the scrutiny.
Parliament also has a role in the deployment of armed forces outside the country and can stop such deployment if two thirds majority of MPs and Senators agree. The President is required to promptly and in detail inform Parliament whenever the defence forces are deployed anywhere in or outside the country. Through the Committee on Standing Rules and Orders, Parliament has an important role in the appointment of members of the judiciary, independent commissions and other senior constitutional officers.
Do MPs have a role in development at constituency level?
The above is a general overview of the role of MPs in Parliament, which is the principal arena of their mandate. This is their core mandate: law making, defending the Constitution and holding government to account. Some MPs are very active in the performance of this core mandate, while others are barely visible. Some are very well equipped to perform their role while others are completely out of their depth. They just attend and collect their allowances without making any effort at all. This is partly why Parliament is weak. It is not because Parliament does not have powers. The Constitution gives Parliament wide powers, which if effectively exercised could make a big difference to the quality of governance in Zimbabwe. Regrettably, there are no minimum educational qualifications for MPs and Senators. A proposition to set minimum educational qualifications was shot down on the ground that it would be elitist and exclusionary.
The above notwithstanding, most people traditionally and predominantly associate an MP with a developmental role. This is partly because of our electoral system, which for the most part, has traditionally been based on constituencies. An MP in the National Assembly has a defined physical constituency and population which he or she represents. It is the MP’s source of political authority and influence and in turn it has expectations from its representative. In addition, when candidates campaign to become MPs, they tend to make grand developmental promises to constituents based on specific problems and aspirations in the constituency. The result is that for most people, the core mandate of the MP is development of the constituency. People have real problems: poor schools, food shortages, poor roads, poor medical services, etc and they look to their local representative to solve these problems.
However, the reality is that the MP has no capacity to solve these problems and it is not even their responsibility within the framework of government. One could lobby government to prioritise their area or seek donors to offer help but otherwise they have no fund to attend to these challenges. The authorities that are responsible are central government and the local authority. Both have the powers to collect taxes and therefore have public funds which they can use to fix these challenges. An MP is not legally empowered to raise or collect taxes. The promises that MPs make during election campaigns are beyond their capability which is why most are never delivered.
The Constituency Development Fund (CDF) is actually a big problem which gives the impression that an MP has the role and capacity to deal with developmental issues. It was introduced partly in response to the gap between public expectations of MPs and the MPs’ lack of capacity to meet those expectations. However, the CDF is woefully inadequate and only serves to raise expectations beyond what the MP can usefully do. It doesn’t help that there has been lack of transparency and corruption in the use of the CDF fuelled by rent-seeking behaviour among MPs. The public ought to have a better understanding of the core mandate of MPs and candidates must not raise expectations which they clearly cannot meet because they simply do not have the capacity. Instead of solving the problem, the CDF only serves to unnecessarily raise expectations which they cannot meet. The public must know that parliamentary candidates who promise them great developmental feats in their constituencies are not being truthful.
Nevertheless, it is important for MPs to understand that people who vote for them in their constituencies expect them to represent their interests. They are the link between the people and the government. This means they must hold regular meetings with their constituents, listening to them and taking their grievances to the government, through parliament. They must be present and visible to the people in their constituencies. An MP cannot just be elected and disappear for 5 years or long periods of time and only return at election time, seeking re-election. The invisibility of MPs for long periods of time is what causes people to lose confidence in MPs and politics.
Provincial and Local Government
There are three layers of government: National, Provincial and Local. So far, we have discussed the national. Under the devolved system, there is now a provincial layer in addition to the local which has always existed. However, since the Constitution was adopted in 2013, Zanu PF has refused and/or failed to implement the provincial layer of government and under the new dispensation it has signalled an intention to amend and remove it citing lack of funding.
Members of provincial councils consist of all MPs and Senators of each province and in addition persons who are elected by proportional representation based on the votes obtained by candidates for the National Assembly elections. The provincial chairperson is elected from a list submitted by the party with the highest number of National Assembly seats in the province. The function of the provincial council is to ensure “social and economic development of the province”. It is therefore this provincial council that has a developmental role.
At present however, this has not been implemented. Instead, Mnangagwa just like Mugabe before him has chosen Ministers of State responsible for the provinces, who are as powerless and useless as the provincial governors before them. The correct position is that there must be a provincial chairperson elected in accordance with the constitution and in charge of a provincial council which is supposed to provide a developmental mandate in each province. The attitude shown so far by ZANU PF suggests that this layer will be scrapped completely should they win the next election.
Local authorities manage urban and rural areas. They are responsible for governing the local affairs of the people within the area of their jurisdiction. Councillors are elected to local authorities and these elections are held concurrently with the election of MPs and President. Local authorities are headed by mayors or chairpersons elected from among the councillors. In other words, one of the elected councillors is elected to become the mayor or chairperson. However, where an executive mayor is provided for, they have to be elected directly by registered voters in the local area.
Local authorities have the power to make by-laws and other regulations necessary to administer their areas. They also have the power to levy rates and taxes and can raise revenue to enable them to carry out their mandate. It is therefore the mayor or chairperson and councillors who have responsibilities to provide services within the local area. Harare City Council and its councillors would be responsible for ensuring that grass on road sides and verges is cut, pot-holes are filled, storm-drains are clear, street lights are operational and clinics are well-equipped.
In short, service delivery in local areas is the responsibility of councillors and the local authority, not MPs and Parliament. Unfortunately, most people are oblivious of these responsibilities and they expect from MPs what is actually a responsibility of councillors. People should hold their councillors to account because service delivery is part of their direct responsibility through the local council. For their part, as already explained, MPs should not promise what they do not have the capacity to deliver. The problem is that in order to increase their political stock they want to claim glory for projects that are done by local authorities and when local authorities fail they refuse responsibility. But as they say, success has many fathers while failure is an orphan.
This BSR was designed to provide information on the way our system of government works and the duties and responsibilities of the different layers of government and arms of the State. The Executive arm, headed by the President and Cabinet is responsible for policy-making and implementation. The Legislature makes the laws and holds the Executive to account. Local authorities are also responsible for social and economic development at the local level. This is where councillors play a critical role and they deal with development issues at the local level more than the MPs who operate at the parliamentary level.
Oft-times, the roles of MPs and councillors have been confused and mixed up, with MPs often being asked to account for a mandate which properly belongs to councillors. MPs are partly to blame for this because they make promises that are not part of their mandate and often claim glory for what isn’t their role. The CDF has added to the confusion and caused constituents to develop expectations that MPs can’t meet simply because they have no capacity to satisfy them.
For voters, it is important to look at the quality of candidates and choose candidates that have the capacity to perform their mandate at local and parliamentary level. If they vote along party lines, they will be lumped with the same old dead-wood that has failed. It is high time they focus on the quality of the candidate and
Alex T. Magaisa is a lawyer in Zimbabwe, lecturer of law in the United Kingdom, Zimbabwean political strategist, and blogger. He currently lives in the UK. Magaisa is known for his political and social commentary work on issues affecting Zimbabwe