Checks and Balances on the Power of the Executive in the Draft Constitution

Checks and Balances on Executive Power in the Draft Constitution

A Brief Background

 

Probably by far the most critical part of a constitution, apart from the Bill of Rights, is the distribution, allocation and limitations of power between the organs of the state. Traditionally, there are three main organs of the state, namely, the Executive, Parliament and the Judiciary.

The principle of separation of powers essentially requires that power is distributed and held separately among these organs. Parliament makes laws, the Executive creates policy and executes the laws while the Judiciary is responsible for the interpretation of the laws and the administration of justice. A core part of this principle is a system of checks and balances between these organs.

In practice, the Executive tends to wield the greatest power, particularly where there is the institution of the Executive President. It is what most people refer to as “the government”. This power is easily prone to abuse. It is therefore necessary to build in auxiliary mechanisms to limit the power of government. This is also referred to as a system of checks and balances. This is consistent with the principle of constitutionalism which encapsulates the idea of limited government.

Zimbabweans have, since the enactment of Constitutional Amendment No. 7 of 1987, which introduced the office of the Executive President, raised concern over excessive powers reserved for that office. Amendment No. 7 was introduced at a time when Zimbabwe was entertaining the idea of a one-party state and therefore created a powerful executive characterised by centralisation of power in the office of the president.

The wave of democratisation in Africa that followed the collapse of the Berlin Wall and the demise of the Soviet Union led to the disintegration of the one-party state. New constitutions in countries like Malawi and Zambia among others, introduced greater checks and balances on the executive, moving away from the one-party state. The campaign for a new constitution in Zimbabwe, led by civil society, was also motivated by the desire for good governance, which included greater checks and balances on the executive.

The current draft must therefore be seen against this background. It is not targeted at individuals but at a system. How then does the draft constitution deal with this problem? This piece is only the start – more articles will in future highlight the checks and balances enshrined in the constitution.

1. Removal of Authority to Legislate

 

1.1         The draft constitution makes a clear separation between the Executive and Parliament in terms of their respective authority. A clear effort was made to remove the President’s constitutional authority to legislate which exists under the current constitution. Under the current constitution, legislative authority vests in both the Parliament and the President. However, the draft constitution makes it clear that legislative authority vests only in Parliament.

 

1.2         This removal of the President’s legislative authority is significant as it will minimise the President’s interference in the law-making process, preserving that domain to Parliament.  This is likely to have an effect such laws as the Presidential Powers (Temporary Measures) Act, which gives powers to the President to make laws and has in the past been criticised as being prone to abuse.  

1.3         Critics will argue that it takes away the President’s power to veto legislation. The reality is that it simply makes the exercise of veto power consistent with best practice. The current constitution gives excessive power to the President because he can dissolve Parliament where it disagrees with him/her on a specific Bill. Elsewhere, such as in the US, where the President has veto power, Congress can override the President’s veto if it votes for the Bill by a two-thirds majority. If the Zimbabwe Parliament decided to do that, the President could dissolve it. This means effectively Parliament is unable to override the President’s veto and makes Parliament subservient to the President.

 

1.4         The draft constitution changes this and states that if the President disagrees with a Bill he must return it to Parliament and if Parliament insists and votes for the Bill by a two thirds majority, the President has no choice but to sign it into law. The draft constitution also provides that if the President disagrees with a Bill on its constitutionality he must refer it to the Constitutional Court for an advisory opinion. Overall, the draft constitution creates greater space for Parliament to perform its constitutional role to make laws without fear or favour. It curbs the overbearing influence that the President has in the law making process under the current constitution.

2. Accountability to Parliament

2.1         The draft constitution provides in specific terms that Parliament has oversight in respect of government. It makes it clear that the President and cabinet – essentially the executive arm of the state – are all accountable to Parliament. This is provided for in Clause 7.4 (2) which states that:

“In addition to their legislative functions both Houses of Parliament have the power to ensure that the provisions of this Constitution are upheld and that all institutions and agencies of the State and Government act constitutionally and in the national interest”

2.2         This is a critical clause which vets Parliament with the role of protecting the constitution. Institutions and agencies of the State and Government include the Office of the President and Cabinet, Executive and Non-Executive Commissions as police, defence, intelligence, electoral commissions, etc.  It means constitutionally all these agencies and institutions, including the human agents occupying them must be accountable to Parliament. Properly exercised, this power provides a useful mechanism to check the excesses of power held by these institutions and agencies.

3. Checks in Senior Appointments

3.1         Perhaps the most significant check on current presidential powers is reflected in the process of appointing senior public officers. The independence of institutions of the state is affected greatly by the manner in which public officers are appointed and removed. The process requires transparency, rigour and a high consideration of merit. There must also be security of tenure and any removal must be consistent with Due Process.

3.2         The current constitution gives excessive powers to the President in making these appointments. The check on power has been a requirement for consultation which really is ineffective because the president is not bound to follow whatever he is given by way of consultation. The independence of the bodies with which he is required to consult has also been questionable since members of those bodies are also appointed by the President.

3.3         The draft constitution (in Clause 7.38) creates a new institution, to be known as the Parliamentary Public Appointment Committee, which builds on the current role of the Committee on Standing Order and Rules in certain appointments provided for under Amendment No. 19.

3.4         This committee of Parliament is charged with the duty of approving certain specified appointments to public office, such as the Chief Justice, the President of the Supreme Court of Appeal, the Judge President of the High Court, Commissioners, etc. It will also approve the appointment of the country’s external representatives – ambassadors, and other senior diplomats. The PPAC will have the power to conduct public interviews to add rigour and transparency to the appointment process.

3.5         In specific cases, the President will be bound by the decisions of the PPAC and must choose appointees only from a shortlist presented by the PPAC. The Sixth Schedule of the draft constitution provides details of the elaborate procedure that must be followed in such appointments. The important aspect is that the PPAC will be made up of parliamentarians who have been elected by the people and this process gives Parliament a role in the appointment of senior public officers. It acts as an important check on the power of the President.

4. Check on the Power of Mercy

 

4.1         A fourth aspect is in regard to the power of mercy which traditionally has been the exclusive domain of the President. This encapsulates the power to grant pardons, amnesty, etc to criminal offenders. Experience has shown that left in the hands of one person this power is easily abused. It can be an incentive for impunity because persons who commit offences, including acts of political violence, may do so in expectation of receiving mercy from the person holding presidential office. It is important that the exercise of this power be checked by an independent institution.

 

4.2         Therefore, the draft constitution departs from the present position in that the exercise of the power of mercy is now subject to the mandatory consultation of an Advisory Committee on the Power of Mercy created under Clause 6.23 of the draft constitution.  The majority of the members of this Committee must be approved by the Senate. The net effect is that the exercise of the power of mercy will now be subject to a system of checks and balances and this will hopefully have positive impact in reducing the culture of impunity.

5. Other Areas

5.1         There are other critical areas where parliamentary approval of Presidential declarations is required by the draft constitution, including the deployment of the defence forces, the declaration of a state of emergency under Clause 6.24, etc. This means that without parliamentary approval, such declarations will be unconstitutional and illegal. It must be noted that in terms of Clause 6.10 failure to obey, uphold or defend the constitution and wilful violation of the constitution are grounds for removal of a President.

Finally, I have observed that there has been an outcry in some quarters, holding the view that the Office of the President has been reduced in stature and made subservient to Parliament. This view is flawed but is, in many ways, welcome because it merely confirms that the draft constitution has probably done a good job of providing for checks and balances on the executive. A constitution that espouses the principle of constitutionalism, as does the draft constitution, must properly provide for limited government and, in so doing, it must have a carefully crafted system of checks and balances. The President already wields great authority. The constitution merely seeks to ensure that there are checks on the exercise of that power and this is what the draft constitution does.

I actually believe more could be done to check the powers of the executive but what is presently provided for must be commended not derided. There is an erroneous belief that this constitution is made for one individual. It is not. Our existence is temporal; indeed, individuals come and go – but the constitution will be there to serve future generations.

waMagaisa (2012)

wamagaisa@yahoo.co.uk