CREATING AN AUTHORITARIAN EXECUTIVE AND A PUPPET PARLIAMENT – PART 3
A T Magaisa
- 1. Introduction
1.1 In the last two parts of this series, we assessed further changes to the Copac draft Constitution suggested by ZANU PF. We noted that these changes demonstrate a high concentration of powers in the office of the President and the executive while weakening Parliament and other institutions. We demonstrated that the checks and balances introduced by the Copac draft have been removed or weakened.
1.2 In this third part, we consider further provisions that have a similar effect. The same method is employed whereby the provisions of the Copac Draft are compared to the provisions suggested by ZANU PF. The net result is the diminution of checks and balances that would otherwise enhance the principle of constitutionalism and a more accountable government.
- 2. Independent Complaints Mechanism
2.1 The Copac Draft provides for the establishment of an institution known as the Independent Complaints Mechanism (ICM) to deal with public complaints regarding the misconduct of members of the security services. The ICM is designed to provide an independent, quick, efficient and professional resolution of public complaints against members of the security services without having to go through the judicial process. It would also have the power to remedy harm caused by such conduct.
2.2 The establishment of such an institution would go a long way to promote accountability through a quasi-self-regulatory service just as is the case with professional bodies for lawyers, accountants, doctors, etc. It would also ensure that problems are resolved quicker than they are when taken through the procedures of the courts of law. Further, it would also mean like the professions, the security services would have to raise their professional standards and keep a vigilant look at their members. It is a system that places responsibility for correcting wrongs right at the doorstep of the security services just as it does for bodies such as the Law Society of Zimbabwe, the Institute of Chartered Accountants of Zimbabwe, the Health Professions Council, etc. In a nutshell the purpose of the ICM is to promote a culture of accountability on the part of the security services.
2.3 However, ZANU PF has deleted this provision for the establishment of an ICM. There is no justifiable reason for its removal and no specific reason has been given for the deletion. It is one of those provisions that is completely missing from the ZANU PF draft although the fact that it has been deleted has not been highlighted. This is one attempt to promote institutions of accountability and resolution of disputes which has been deleted through the ZANU PF amendments.
- 3. Appointment of Judges
3.1 The judiciary is the third critical arm of the State which interprets the Constitution and the laws of the land. It also has the power to review the conduct of the executive and its institutions and in so doing provides critical checks and balances on the exercise of executive power. In order to execute its role more effectively and impartially, the judiciary must be independent. Its independence is dependant on a number of factors but one of the critical ones is the method of appointing judges. The process of appointing judges must not be left to one person but rather it must encapsulate adequate checks and balances.
3.2 The Copac draft seeks to do this by ensuring that while the President makes the ultimate appointments, the actual selection process is effectively done by the Judicial Services Commission (JSC). Under the Copac draft, the JSC makes public calls for the nomination of candidates for judicial office. The nominations can be made by the President or members of the public. The JSC conducts public interviews and provides 3 names of candidates to the President from which he or she must select an appointee.
3.3 As long as the JSC is sufficiently independent and professional, this open and transparent process can be expected to yield candidates of merit. The President has a choice but only among the 3 candidates submitted to him or her by the JSC. This means the President does not have unfettered discretion to appoint whoever he or she wants as a judge. This is a procedure that provides a good base for judicial independence.
3.4 However, ZANU PF has suggested a different model. Under their model, the President appoints a judge “after consultation” with the JSC. As we have already observed in Part 2 of this series, when the President is required to appoint “after consultation with” another authority, it means he or she has the option of ignoring that authority’s recommendations.
3.4.1 This means under the ZANU PF proposal, the President would have almost unfettered discretion to appoint whoever he or she wants as a judge. This model gives too much discretion and power to the President, enabling him or her to pack the judicial bench with his or her favoured judges consequently compromising judicial independence.
3.4.2 Under this model, the President is not obliged to appoint the candidate advised by the JSC. The only sanction is that if his chosen appointment is inconsistent with the JSC’s recommendations he or she is required to inform the Senate but this too is useless because there nothing stated as to what Senate can do in those circumstances.
3.4.3 It is also notable that under ZANU PF’s proposals, the public’s right to nominate candidates for judicial office has been deleted. Only the President can make nominations meaning he or she can nominate his or her favourites. This restriction is yet another attempt to carve out exclusive space for the President to shape the composition of the judiciary.
3.4.4 Further, it is also notable that under the ZANU PF proposals, the specific requirement for public interviews in the judicial selection process has been dropped completely. This openness and transparency that this would have encouraged will consequently be lost.
3.5 Overall, compared to the Copac procedure, the ZANU PF-proposed procedure carries the risk of creating a judiciary that is no more than a puppet of the Presidency.
- 4. Election of Parliamentary Officers
4.1 In a multi-party democratic Parliament, the election of the chief officers of Parliament, namely the Speaker and his or her Deputy and the Senate President and his or her Deputy, are critical processes. As with all elections, they must be free and fair and this is also dependent on the authority that is responsible for the conduct and supervision of the elections. Under the current Constitution, the authority responsible for the conduct and supervision of these elections is the Clerk of Parliament. Experience in recent elections has shown that having the Clerk in this role can be problematic.
4.2 The Copac draft proposes that the authority to conduct and supervise elections of the chief parliamentary officers must be the Chairperson of the Zimbabwe Electoral Commission or his or her nominee. This makes sense because the election of parliamentary officers is an integral part of the entire electoral process. It is therefore reasonable that the body that is responsible for all elections should exercise this role.
4.3 ZANU PF has however changed the Copac draft by reverting to the procedure used under the current Constitution. This means that under their model, the elections of the Speaker, Senate President and their deputies are conducted by the Clerk of Parliament. There is no reasonable justification for retaining a procedure that has been affected by controversy. There is no reason why the Chairperson of ZEC should not be entrusted with this role, given the overall mandate of ZEC in electoral processes.
4.4 In addition, the Copac Draft proposes that when these officers have been elected, they take their oaths before the Chief Justice or a judge of the Constitutional Court as opposed to doing so before the Clerk of Parliament as is the current law and practice. ZANU PF wants the Clerk of Parliament to retain this role and no justification has been provided for removing the Copac provision. These provisions give a misleading appearance of the rank of the Clerk of Parliament in the Parliamentary structures. The Clerk is a mere employee of Parliament and there is no reason why he or she should administer the oath for his employers. Respect for Parliament and its senior officers must be accorded by requiring the senior officers to tale their oaths before a member of the judiciary and not before an employee of Parliament.
- 5. Head of Parliament
5.1 The Copac draft makes is plain that the Speaker is the administrative head of Parliament, with the Senate President as his or her deputy. ZANU PF has changed the wording of this clause, preferring to highlight the role of the Clerk of Parliament. There is no reason for removing the provision that makes it clear that the Speaker is the head of Parliament.
5.2 The effect of ZANU PF’s changes is to dilute the authority of the Speaker as the administrative head of Parliament. This gives too much power to the Clerk, an employee, at the expense of the Speaker and the Senate President who are supposed to head the institution of Parliament. Note that ZANU PF has also deleted the Copac draft provisions limiting the Clerk’s terms of office to two terms of six years each, which means the Clerk is appointed for an unlimited period. The threshold for removing the Clerk has also been raised from the usual simple majority to two thirds majority vote of MPs which makes it almost impossible to remove a wayward Clerk. The simple point which no one seriously disputes is that the Clerk must operate under the direction of the Speaker whose role as head of Parliament must be clearly set out.
- 6. As we conclude this part, we observe yet again that the changes proposed by ZANU Pf have the effect of creating and strengthening space for the Presidency and the executive generally and weakening other institutions, such as Parliament and the Judiciary, which are otherwise supposed to provide important checks and balances.
Wamagaisa (2012)
