HomeLocal NewsProposed constitutional amendments: What political, legal experts say

Proposed constitutional amendments: What political, legal experts say

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Reforms to Rig Elections: Arthur Mutambara, former Zimbabwe Deputy Prime Minister

WE have been talking about the need for political reforms to level the playing field thus facilitating credible, free and fair elections in Zimbabwe. While we have argued that political reforms are necessary, but not sufficient, we have also emphasised that without these reforms all other interventions are futile.

We having been insisting on dialogue and agreement about these reforms, and thereafter their effective implementation.

As we posit these averments, it is instructive to note that Zanu PF is actually designing and implementing political reforms — albeit in the opposite direction!

While we are in a political slumber and majoring in minors, Zanu PF is busy carrying out political changes to enable the theft and rigging of elections.

More importantly, they are putting in place political reforms that will allow them to steal or rig those polls with absolute impunity.

One of the key objectives of the 2013 Constitution was to whittle down the authority of an all-powerful presidency. This was not sufficiently addressed but significant inroads were made.

However, on December 17, 2019, the Zanu PF government announced a raft of measures to roll back that progress and reintroduce an imperial presidency through Constitutional Amendment Bill 2019.

They seek to remove the running mate clause so that the President will appoint and fire his two deputies. They intend to abolish the use of public hearings for the appointment of Judges and return that authority to the President.

Furthermore, they propose the appointment by the President of the following: Chief Secretary to President and Cabinet and the deputies; Public Protector and deputy; and the Prosecutor-General.

This is an unequivocal and unambiguous reconstruction of the pre-2013 all-powerful presidency. In fact, it is even more consolidated and over-reaching than that obtaining pre-2013.

An imperial presidency is central to the orchestration of fraudulent electoral processes. It enables the rigging of elections and guarantees impunity for electoral theft.

When one is aggrieved with electoral outcomes, where do you go? To the courts (High Court, Supreme
Court, and Constitutional Court), right? Who will be manning those courts? Compromised judges appointed by an illegitimate President who is a product of electoral theft! What justice do you expect?

A further cynical part of the Zanu PF’s constitutional changes announced on December 17 is the obvious and shameless reward to Chief Justice Luke Malaba for his role in upholding the results of the fraudulent 2018 presidential elections.

He is due for retirement soon, but Zanu PF has put a specific provision that allows him (beyond the retirement age of 70) to renew his contract annually, for a period not exceeding five years.
How sick can we get?

Let us be woke. Political reforms are taking place. They are just in the opposite direction. Zanu PF is busy implementing reforms to rig elections with absolute impunity.

Another fool’s errand: Advocate Thabani Mpofu

On December 17, 2019, the nation became aware that Cabinet had considered and approved Constitutional Amendment Bill, 2019, which seeks to introduce a gamut of amendments to the Constitution of Zimbabwe, 2013.

The contemplated amendment is a sovereign disgrace which shows that this government feels little disposition to submit to the wholesome restraints of constitutionalism.

Although the whole amendment is the relentless work of rascals, I am particularly taken by the invalid attempt to increase the retirement ages of the Chief Justice, his deputy, judges of the Constitutional and Supreme courts.

The attempt to amend the Constitution is in that regard an unprovoked and unjustified vote of no confidence in the entire judiciary. There is evidence that it is meant to benefit only one person, with other senior judges being used as a cover up.

Various learned and eminent citizens have already panned this as an attack on judicial independence, democracy and constitutionalism. I add my voice to the loud chorus of boos. This is what all modesty wish to see buried in everlasting oblivion.

The intention to amend is, however, not well thought out and is quite frankly illiterate nonsense.
It seems to me that the regime has not considered provisions of section 328(7) of the Constitution, which reads as follows:

“Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The effect of this provision, being underpinned as it is by a non-obstante clause, is that if the amendment sails through, the new law will have no effect on the tenure of office of the Chief Justice, his deputy and the current judges of the Supreme Court who must all retire once they reach the age of 70.

The effort is, therefore, a pointless re-arranging of the deck chairs on the Titanic. I bet my last dollar, the miscreants who are behind this amendment are not alive to this legal position.
They have accordingly wasted time but have in the process shown us the lengths to which they are prepared to go in undercutting the spirit of the constitution. Mwari ave navo!

Towards a dictatorship: LSZ

On December 17, 2019, Cabinet at its 45th meeting approved several amendments to the Constitution.
Some of the notable proposed amendments relate to the appointments of vice-Presidents, Prosecutor-General, Public Protector, promotion of judges and the terms of office of judges.

The other notable proposed amendments relate to the composition of the provincial councils and the extension of the provision on the women’s quota which was scheduled to end in 2023.

The Constitution provides for its amendment. Although amendments to the Constitution are allowed these ought to be necessary for the promotion of the rule of law and protection of the principles of democracy.

Our Constitution is a democratic document which came out of extensive consultations. It is a national document which should be enduring. Amendments to the Constitution must be necessary for the enhancement of enshrined rights, accountability and good governance. Amendments must not be retrogressive.

In terms of section 92 of the Constitution, the presidential candidate chooses running mates who upon election become the national Vice-Presidents. The rationale for the provision was to introduce a non-disruptive succession plan while ensuring that in the event of a Vice-President taking over the office of President he would be having the people’s mandate.

The effect of the proposed amendment to section 94 means that Vice-Presidents will no longer be elected, but appointed by the President. This removes the transparency and democratic process sought to be achieved by section 92 in relation to the assumption of these important offices.

In addition, the Vice-President’s tenure will be at the pleasure of the President. An amendment is expected to cure a problem or mischief. This is not apparent in the present case. The proposed amendments further seek to change the procedures for the appointment of the Prosecutor-General.

The current procedure for the appointment of the Prosecutor-General is similar to that of the judges. This is a transparent way of appointing this important office, which like the judiciary ought to enjoy prosecutorial independence.

The proposed amendment whereby the President appoints the Prosecutor-General upon consultation with the Judicial Services Commission (JSC) is reverting to the old constitution.

The current provisions promote transparency in the appointment process. This will not be achieved under the proposed amendment. It is not clear what mischief the proposed amendment seeks to address. The fact of the matter though is that the amendment is retrogressive. It emasculates a position that is pivotal to our criminal justice.

The amendment will remove the Prosecutor-General’s independence. The appointment system also does not guarantee meritocracy as the basis for appointment. This cannot be achieved by simply consulting the JSC. In any case in terms of section 339, such consultation may not be binding on the President.

Section 180 sets out the conditions that must be met in relation to the appointment of judges. The proposed amendment seeks to provide for the President to appoint a sitting judge to a higher court upon consultation with JSC.

This approach seeks to reverse the elaborate, and transparent system currently in place. It is not clear why we should depart from the current system. The proposed changes will take us back to the pre-2013 era, where judicial appointments were shrouded in a veil of secrecy.

The proposed extension of the tenure of judges albeit on a contract basis and subject to medical certification on fitness, is not desirable in a country with a vibrant legal profession. There are many legal practitioners who are fit to hold the office of judge.

The introduction of the office of the Public Protector should be based on a true desire to achieve administrative justice especially by public offices. The 2013 Constitution deliberately omitted this institution on the basis that the functions could be effectively undertaken by the Zimbabwe Human Rights Commission.

The Justice ministry recently lamented that this commission is under-resourced. Instead of properly funding the Zimbabwe Human Rights Commission, the Cabinet is creating another institution which will have its own resource-chewing bureaucracy.

On the other hand, the present Constitution already provides for the establishment of an independent complaints mechanism to deal with misconduct by members of the security sector.

This has not been instituted and yet Cabinet finds it necessary to create the Public Protector’s Office. The Executive is failing to diligently and without delay perform all constitutional obligations as provided in section 324.

The proposal to remove MPs and Senators from provincial councils also appear ill conceived. The presence of these members was supposed to bring the nexus between national and local development.

The proposed amendments will perpetuate the disconnect between the national programmes and the local/provincial programmes, thus creating development inertia.

The Law Society of Zimbabwe reiterates that the provisions to the Constitution ought to be guarded jealously. Any proposed amendments to the Constitution should be for the people and by the people.

The Law Society of Zimbabwe further reiterates its position that the Constitution of Zimbabwe should be jealously guarded and protected in pursuance of the supremacy of the rule of law.

The proposed amendments to the Constitution at most, are unnecessary, retrogressive and are not in the interest of transparency, good governance and respect for the rule of law. Accordingly, the LSZ categorically denounces them.

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