INTERVIEW: Everson Mushava
President Emmerson Mnangagwa’s government last December gazetted the Constitutional Amendment Bill 2019, which proposed 27 amendments to the Constitution adopted in 2013 after a referendum. The Zimbabwe Human Rights NGO Forum, together with other lobby groups, has launched a campaign to mobilise people to reject the amendments. NewsDay (ND) chief reporter Everson Mushava caught up with Blessing Gorejena (BG), the NGO Forum executive director, to hear her views:
ND: Your organisation has launched a campaign to educate people about the proposed amendments to the Constitution. What is the thrust of your campaign?
BG: The thrust is aimed at preserving the sanctity of the Constitution, whereby we are saying the recently gazetted Bill by the government to propose 27 amendments to the Constitution is improper and also does not sit well with the tenets of democracy and good governance in the sense that this was more like an ambush. The government just woke up one night to say we are amending the Constitution without the citizens’ input in that process and any consultation to help us understand on the need for the amendments. A government which derives its authority from the people cannot just wake up to say we are tinkering with the Constitution without a compelling necessity.
ND: Last month, during a meeting with the media, you said the timing of the amendments was wrong. Why do you say so?
BG: The timing is wrong, but on top of that, it is not necessary. First and foremost, the government has neglected to implement the very core Constitution they are seeking to amend. What is the justification to tinker with the Constitution, including those provisions which have not been implemented like the one on devolution and presidential succession running mate? There are compelling priorities like addressing the socio-economic decline; people are suffering from hunger and looking up to the government of the day to provide for their basic needs such as health, education, water, power supply.
ND: You have mentioned the issue of the running mates which has generated a lot of debate among citizens. What do you think was the legal or political reason behind the proposal of that amendment?
BG: As a lawyer myself, I am finding it difficult to find the legal basis. If anything, it is actually an illegal proposal because we have a Constitution that was voted for by the majority of citizens. People said they needed running mates; of course, the clause was transitional to start kicking in 2023. It has not been tested. What we are seeing are very disturbing proposals that seek to concentrate power in the President as he is the one being given the power to appoint the vice-presidents, as opposed to what the current Constitution provides.
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The President is the one who is going to ascertain the tenure of the vice-presidents, which then brings a lot of questions around the issue of the concentration of power in one person, which the Constitution already gives, by the way, in its current format.
When talking about the issues of tenure of office, you recall the succession battles that have been outplaying, not only in Zanu PF, but also in MDC. This particular proposal is bringing in that uncertainty by leaving one person to determine when and how to then appoint vice-presidents. Now with these proposals, they are actually giving the President the power to decide when to hire and fire vice-presidents. To us, this is taking away that provision that gave some certainty on the succession debates in the event that the President leaves office during their tenure for whatever reason.
Under the circumstances, it does not guarantee that the President cannot handpick his deputies and force them to dance according to his tune as was the case during the late former President Robert Mugabe’s tenure. This is where these amendments are taking us back.
ND: What is wrong with the President handpicking his deputies?
BG: It is a disturbing trend that the President is the one with the authority to remove the vice-president from office. Under the current set-up, the Constitution provides, when it then kicks off in 2023, that only Parliament has the power to remove a vice-president after an inquiry into issues raised against him. The system gives assurance that there will not be any abuse of power.
There is also the issue around democracy and legitimacy, the people of Zimbabwe will vote for their vice-president through the running mate clause. The assumption is, when the President is voted for with his running mate, people have bestowed confidence to say, this is the person we would want in the event that the President dies or leaves office during tenure.
The person who then takes over has the mandate from the people. But the removal of the clause means the people’s right to vote for vice-president is now eliminated.
ND: You talked about the internal power dynamics in both Zanu PF and MDC. In November 2017, President Emmerson Mnangagwa was a victim of having an imperial president in the form of Mugabe who could hire and fire his deputy. But now Mnangagwa, as leader, wants the same powers used against him by Mugabe. Do you think there could be a special reason why Mnangagwa wants those powers?
BG: It is so difficult to understand why one would come up with such kind of a proposal because to me, if someone has experienced it before, then you would expect that person to be a proponent of democratic principles that give assurance and security of tenure. I would not know why because when looking at the amendments, the challenge we have with understanding these proposed amendments is that the Bill itself has not included the preamble to explain why these amendments are being called for.
Secondly, this provision has not been tested so everything is speculation. If we had had it before, experienced the challenges and identified the areas where we would need to improve, it could have been easy to identify were the challenges are coming from. It would have been easy for me to then maybe identify the reason. What we can only conclude is that it is all about consolidation of power because no one has attempted to explain to us the reason for that proposed amendment.
ND: Briefly, what other sections of the proposed amendments do you think Zimbabweans should be worried about and why?
BG: Basically, all the proposed amendments except, maybe two; which I will flag out as insignificant like the ones on the Chief Secretary to the Cabinet, the one that changes names between civil service and public service. Those I have considered them to be negligible.
First, let me deal with the Judiciary. The promotion of judges to the Constitutional Court speaks to the independence of the Judiciary. With the current system, for some of the people who have been following the processes there, the current set-up would allow for the judge who wishes to be promoted to the Supreme or Constitutional Court to go through a public process.
The Judicial Service Commission (JSC) advertises if there is a vacancy in those two courts. At the moment, it is just sitting as one court and on May 22, we have the Constitutional Court and the Supreme Court sitting separately. All the judges, except the Chief Justice and his deputy, are appointed to the Supreme Court. Come 22 May, we have a vacancy of five positions in the constitutional court.
What then happens is that if someone under the current provisions wishes to be considered to the position of the Supreme and Constitutional Court, the JSC will advertise their vacant positions, publicly nominates and the prospective candidates will then go through a public interview process where the public is able to assess and also get an appreciation of the legibility of a certain individual to occupy such office. Those who care to know can even appreciate the qualifications of that particular individual. With the current proposed amendments taking away that, it is now giving the President the power to appoint who is sitting at the Constitutional Court at the moment to either the Supreme or Constitutional Court.
It then removes the public participation, removes the transparency in the process such that we never get to know if there is a vacancy in the Supreme Court because the JSC is not going to advertise or either get to know the calibre of the person and the reasoning behind their promotion at the superior court, which is quite dangerous when we are talking about the independence of the Judiciary.
ND: Still on judges, what is your view about the President extending the retirement age of judges from 70 years to 75?
BG: The current provisions states that judges of the Constitutional Court can serve for 15 years or until they reach the age of 70 years and for all the other courts, including the Supreme Court, they serve up to 70 years. Now with the current proposed amendments, they are now saying for Constitutional Court and Supreme Court, it is no longer automatic that when a sitting judge in those two courts reaches the age of 70 years, they cease to be judges of the two courts.
Instead, they can then apply to the President for the renewal of their tenure on a yearly basis up to five years and the President will only assess their fitness on medical grounds. If he is happy that they are medically fit, then they can allow them to serve for one year. At the end of one year, if they wish to continue, they come back and have the same process done up to a maximum of five years. It then brings in a lot of questions in terms of objectivity of that judge. The moment you express the interest to serve your additional five years for example, after reaching 70, it means you will have to dance to the tune of the person appointing you.
No reasonable person would want to sit and adjudicate against the interests of the person who is going to renew their appointment come the expiry of one year because you want to be assured of that tenure. We are saying these are courts that come out with decisions that have a huge bearing on people’s rights and society. Why would we have a relaxed approach when talking of such important matters?
In my view, I think it is wrong and should not be encouraged. In terms of the power of the President, the JSC has just been reduced to a position of a mere adviser.
ND: How do the proposed amendments impact on the separation of powers in Zimbabwe?
BG: We have the doctrine of separation of powers where you have the Judiciary, the Legislature making the role, the Executive implementing the role. That aspect of checks and balances is removed because it is now the Executive that is running the show. The Judiciary is now the hands of the Executive, when we are talking of those courts. It is not something Zimbabweans would like to see.
ND: You made mention of the dangers of extending the tenure of judges by the President. How do you think this will impact on the handling of electoral petitions in Zimbabwe?
BG: In 2023, we are going for an election and the Constitutional Court has exclusive jurisdiction of presidential petitions like you noticed in 2018. Come May 22, we only have two judges who are elligible to sit in their Constitutional Court, such as the Chief Justice and his deputy, and we have five vacancies and suppose that these amendments are going to be passed by May 22, it means the President has the sole power to constitute the Constitutional Court. Suppose we get to 2023, he is there to contest. If there is a petition against the outcome of the presidential election, what do you think the judges now serving at the mercy of the President will do?
This is not what the people had voted for when we had 95% of some citizens voting in this Constitution. We wanted to come up with those safeguards that would ensure the independence of the Judiciary. Unfortunately, what these proposed amendments are simply doing is to take away that and it should not be encouraged. The same will happen of the appointment of the prosecutor general.
ND: But talking of the current prosecutor-general, he was still appointed after coming a distant sixth in the interview process. Doesn’t that show that even with the safeguard in the Constitution, the President still has powers to handpick, which makes the proposed amendments fait accompli?
BG: Currently, as you have pointed out with the current prosecutor-general, they are supposed to advertise the position, nominations, go through a public interview process, the country will get to know who did what, and they will question certain decisions. Now with these proposed amendments, they are seeking to take that away, give the President the power to handpick and remove the prosecutor-general. He is the one who presides over the National Prosecuting Authority of Zimbabwe. This is the institution that has been mandated to decide whether to prosecute or not to.
An example is that of the fight against corruption, someone is being arrested and the PG is the one that stands on behalf of the nation to prosecute against any ills to the society. The State is represented by the prosecutor. Having such kind of powers and having a person like the PG going through a public endorsement in my view, it provides the safeguards for independence, but now regardless of importance of such kind of an office, the President is now being given powers to appoint the person he wishes to that office.
What does it mean tomorrow when the President has an interest in a particular case? We have seen it happening before when we had the previous PG (Johannes Tomana), who declined the prosecution of (former Reserve bank of Zimbabwe governor Gideon Gono’s adviser) Munyaradzi Kereke. Lawyers had to fight and eventually got a private prosecution certificate. Kereke is in jail, and you can now understand why we talk of independence in that office.
ND: You have talked of consolidation of power by the President while whittling the powers of Parliament. What are the dangers? BG: The limitation of Parliament’s oversight role in approving treaties that would have been signed by government, between government and foreign organisations is worrying. What these amendments are proposing to do is that we have two types of treaties that can be signed; the first which they now call international treaties are treaties that are signed between the government and another State or inter-governmental agencies and companies that have a membership of other State parties. Those have to go through Parliament, but now the current provisions of the Constitution had separated to say for those international treaties, obviously they cannot be binding on Zimbabwe until they have been rectified and approved by Parliament. The second segment are treaties that involve the government and foreign organisations. These foreign organisations will be the likes of private banks and foreign countries that are not made up of any State, private entities or persons. The current provisions were giving Parliament the power to oversee those agreements that would impose physical obligations on the country. Why? It is because Parliament should be able to control government expenditure; it should be able to assess the effect or impact of such kind of agreements.
We know that our country has incurred huge debts, foreign debts which we even citizens are asking where it came from, who negotiated on whose behalf, but unfortunately, they are also binding on us. What this particular provision was seeking to do was to cushion the country from being mortgaged unknowingly and bring in some oversight mechanisms through which Parliament is then able to then query Executive decisions around that before the country is bound on certain decisions. These proposed amendments are seeking to take that away, meaning the Executive can go on to negotiate treaties, borrow from any foreign organisations without anyone checking on that.
ND: As a leader of the organisation that deals with human rights, what is your comment on the section to do with the public protector?
BG: That is another worrisome provision as well that as human rights organisations we are finding it difficult to understand why. Context is always critical. Before the 2013 constitutional order, we used to have the ombudsman, later then called the public protector. With this new constitutional order, the portfolio was transferred to the human rights commission, inheriting a huge load of cases that the ombudsman dealt with. From our observation, it appears as if the human rights commission was faring well, what did the government do — that portfolio was not sufficiently funded.
The second point relates to the importance of these cases, the public protector has envisaged from the amendments. It is talking about issues of maladministration, violations of human rights by public officials. That is an important aspect. When we are sitting here as the Human Rights NGO Forum, a majority of the cases that we have had to litigate are cases that involve actions by public officials.
That power has been removed from the Human Rights Commission given to a public protector who is appointed by the President, who serves before the President, reports to the President and dealing with such kind of a critical portfolio. What is it being taken away? It is an independent form whose commissioners have been appointed through a publicly-approved process by Parliament, who report to Parliament and their work is supposed to be independent. This means it compromises the rule of law and neglects the ability of citizens to get effective remedies and justice over their cases because serious questions are going to be raised over the independence of the public protector, who reports to the President.
Some might want to argue that this aspect of public prospector as much as it has worked so well in South Africa, the common experience being that of Thuli Madonsela. We also need to assess deeper. That is why I said context is important. Who is Thuli and where is she reporting to?
As Zimbabweans, we should not be blinded by these developments. I am not just giving one entity; there are so many other mechanisms that have been created in our setup that speak to the same issue. Mildred Chiri (Auditor-General) is doing similar work and has investigated reports speaking to a wide array of issues but have we seen any single of her recommendations being implemented, none. We also talk of an Administrative Court, that is another institution that has also been mandated to look at issues of administrative justice also closely linked to public protection.
What has the government done to capacitate and empower those kind of institutions, nothing, but instead we rush to create new institutions that impose additional obligations on our fiscus. Do we have that luxury at the moment when we are saying they are other competing interests like the socio-economic decline? The sincerity of the government should be questioned.
ND: I understand the next process is public hearings. Do you think the public hearings offer people an opportunity to block these amendments considering Zanu PF, the proponent, has two-thirds majority in Parliament?
BG: That is one of the disheartening factor or fact on the ground. One thing I would insist on is the sanctity of the Constitution and also the fact that it is every citizen’s duty to preserve that sanctity. To say something that was overwhelmingly endorsed, 95% of those that voted in 2013 voted for this Constitution, which is an expression of their wishes and aspirations on how a written social contract would be expressed. This is what the citizens of Zimbabwe would have envisaged in terms of what should bind them as a nation. The power to stop this lies with those few elites sitting in the Parliament, with the mandate to represent people.
It may seem like far-fetched, but they are so many avenues that the public can utilise, the public hearings, the public can also appeal to Parliament through written submissions, they can engage their citizen MPs, put them to task over this. When they are representing us in Parliament, they should represent our wishes. We also need to put our executive to task, they cannot just shortchange the citizens they are accountable to the people. This is how we have been taking our campaign and advocacy around this Constitutional Amendment Bill.
ND: Should Zimbabweans hope to succeed in blocking the amendments?
BG: In the context of advocacy, you just do it to make a point to place things on record. For us we refuse to be silenced by anything, we still talk even if they go ahead and publish, we still challenge in the courts of law. The Constitution belongs to us, it was not meant for the President, Cabinet or parliamentarians. This is the second time to amend the Constitution, the first amendment went unnoticed and the same ambush was being attempted now to just come up with an omnibus of 27 sections.
