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Dissecting constitutional amendment No 2 – Part II

Opinion & Analysis
In the last article, we looked at proposed constitutional changes with a direct bearing on the Legislature. The focus this week is on the Executive.

just saying:Paul Kaseke

In the last article, we looked at proposed constitutional changes with a direct bearing on the Legislature. The focus this week is on the Executive.

In the previous article, I alluded to puzzling amendments without a clear rationale or basis for the changes. One such change affects the Executive directly and can be found in Clause 15 of the Bill.

The clause amends section 199 of the Constitution by renaming the civil service to “public service” and extending the functions of the civil service. Whereas the current framework merely states that the civil service is responsible for the administration of Zimbabwe, the suggested formulation states: “There is a single Public Service to implement the policies of the Executive branch of the government, to assist it in the administration of Zimbabwe and to deliver public services to the people.”.

The formulation is odd because it states the obvious — that the civil service implements policies of the Executive. By its very nature, the civil service has always performed this function. This is either a meaningless overstatement of the obvious or a deliberate restatement of the functions almost as if civil servants need to be reminded where they owe their loyalties. It does not, in my view, warrant any further discussion nor should it be included as an amendment. There is no logical reason for its inclusion as an amendment. Another odd inclusion is the function “to assist in the administration of Zimbabwe”.

The current framework in section 199 of the Constitution holds that the civil service is responsible for the administration of Zimbabwe. There is a slight, but important variation in that the suggested amendment mandates the civil service to “assist” in the administration. That is a peculiar change.

From being responsible for the administration to assisting in the administration, is a huge shift. That raises the question, who else will be responsible for administration if not the civil service?

This could either be the effect of clumsy drafting or an intended inclusion since government went to great lengths to include the wording in the amendment. Perhaps only time will tell what the significance of this change is, but it is something to look out for. Overall, however, Clause 15 is an unnecessary and suspicious amendment to the Constitution.

Another surprising amendment is the express inclusion in the Constitution of the Chief Secretary to the Office of the President and Cabinet. The proposed Clause 16 of the Bill will create section 204A of the Constitution and will, therefore, be a new provision that sets out the appointment and function of the Chief Secretary.

This is absent from our Constitution, but if I may speculate, a possible reason for this odd amendment is to secure the existence of the office and prevent it from being abolished when administrations change. By constitutionalising the office, it becomes a constitutional imperative that a sitting President appoints the Chief Secretary. It will no longer be at the whim of the political direction of the administration. Apart from this, there seems to be a deliberate attempt to create an all- powerful Chief Secretary. For instance, the suggested changes make the Chief Secretary the “most senior member of the Public Service” and make other permanent secretaries subordinate to the Chief Secretary in “matters affecting them as a class”.

While the section fails to set out what the latter means, in its most literal sense, it creates an additional centre of power that may well conflict with existing structures.

This amendment will see the Chief Secretary’s term of office and remuneration fixed by the President directly, unlike other permanent secretaries whose terms and salaries are the preserve of the Civil Service Commission. In theory, the amendment will mean that there is nothing prohibiting a Chief Secretary from serving until the age of 90. There is also no process to remove the Chief Secretary.

The President is not given any parameters to dictate when the Chief Cecretary should be removed, thus creating a super office subject to very few checks and balances. There are important questions that need to be asked at this stage: Why is there a desire to create a super-powerful Chief Secretary whose working conditions and terms are the President’s discretion? Why has the Chief Secretary been chosen as an exception to the Civil Service Commission processes? It may well be that the Chief Secretary may enjoy powers akin to a Cabinet minister, but without the title. This amendment might be puzzling, but it should not be ignored. It suggests the beginning of power games through legal instruments.

In 2018, I predicted that President Emmerson Mnangagwa’s administration was likely to urgently push for five constitutional amendments and one of these was increasing the number of non-parliamentarians in Cabinet.

The trigger for that prediction was a gaffe by the President when he appointed his first Cabinet wherein, he exceeded the number of permissible non-Members of Parliament ministers in Cabinet. Clause 10 of the Amendment Bill will change s104 of the Constitution by increasing the maximum appointable number of non-MPs from five to seven. It is no secret that I am a proponent for a more meritocratic-driven Cabinet that is leaner and more efficient, so this change gets a thumbs up from me. It is a tragedy that our Parliament does not present the kind of leaders with expertise and skills required to effectively change our country, so relying on Parliament to fill up Cabinet posts is not ideal.

There are those who argue that more non-MPs will reduce accountability in Parliament, but that is not founded. Parliament holds the Executive, in its entirety, accountable. This is irrespective of whether the minister is an MP or not. Non-MPs and MP ministers will still account to Parliament. If the President reduces the size of his Cabinet while making use of more non-MP ministers, this amendment should be welcomed. If, however, the President intends to further bloat the Cabinet, then this should be scrutinised carefully.

Perhaps the most controversial of the proposed amendments that affect the Executive, is the deletion of the running mate clause. In terms of s92 of the Constitution, both the President and the Vice-Presidents are elected. This clause was, however, only intended to come into operation 10 years after the first election under the new Constitution.

The amendments proposed by the government will remove this clause in terms of Clauses 2-9 of the Amendment Bill. One of the results of the multiple deletions is that the President will, in his sole discretion, appoint a Vice-President. Interestingly, by deleting “Vice-Presidents” from section 91 of the Constitution which deals with the qualifications of the President and Vice-President, there will be no age limit for one to be a Vice-President.

Indeed, this also means the Vice-President needs not necessarily be a Zimbabwean citizen by birth or descent, ordinarily resident in Zimbabwe or be a registered voter. This is the unintended result of what can only be termed reckless legislative drafting and it would appear that the drafters failed to include provisions which cover for the deletions. If this is not further remedied, it will lead to an absurdity. On the removal of the Vice-President, Clause 8 will effectively abolish any grounds for the removal of the Vice-President.

This would thus mean that the Vice-President serves at the pleasure of the President who can revoke the appointment at any stage without reasons or without any legal grounds to do so. Section 97 of the Constitution will now deal with the removal of the President only.

Should this amendment sail through, as it is almost guaranteed to, there will be no constitutional basis to remove an ailing Vice-President since the grounds of incapacity will only apply to the President and not the Vice-President. This, in my view, is very significant considering the previous attempts by opposition MPs to push for the removal of Vice-President Constantino Chiwenga on grounds of incapacity.

It is unfortunate that the running mate clause will be removed from our Constitution because it would have given voters direct control in determining who occupies the country’s highest offices. The deletion seems to serve an internal political agenda rather than one of national interest and that is most regrettable.

In the next edition, we examine the changes that will affect the Judiciary and other institutions supporting democracy. Until then, please take time to check the Bill for yourselves and participate in the current Parliamentary Committee hearings to make your voice known. This is your Constitution and your voice matters…just saying!