CREATING AN AUTHORITARIAN PRESIDENT AND A PUPPET PARLIAMENT (Part 2)
A T Magaisa
- 1. Introduction
1.1 In the last article, we assessed provisions on the dissolution of Parliament, terms of office of heads of security services, the power to declare war and peace, political accountability of the security services and noted that in almost every case, ZANU PF’s proposed changes enhance the power of the Executive President while weakening Parliament. The checks and balances in the Copac draft are weakened and the proposals do not enhance the principle of constitutionalism.
1.2 This is the second part which considers the further provisions whose effect is the similar. We shall use the same method, comparing the Copac Draft and the ZANU PF amendments. This paper must therefore be read as a continuation of the first paper.
- 2. Elected or Appointed Vice Presidents
2.1 Under the Copac Draft, the two Vice Presidents (VPs) are elected as running mates of the Presidential candidate. The fact that they are elected gives them greater legitimacy if one of them has to succeed the President in the event of death, resignation or incapacitation. ZANU PF has however deleted all provisions providing for the election of the VPs. Instead, under the ZPF model, the two VPs will be directly appointed by the President as is currently the case. This is consistent with the approach where the President is given unfettered powers of appointment and as we shall see in the next article, the President also directly appoints the Provincial Governors (PGs), another departure from the model under the Copac draft which has stronger checks and balances that limit Presidential discretion.
2.2 Further, in the Copac Draft, VPs are required to attend Parliament and Parliamentary Committees to answer questions. In addition, Chapter 6 of the Copac Draft states that Parliamentary Standing Orders may provide for the questioning of VPs and PGs in Parliament. The object of these clauses is to ensure that VPs and PGs are held to account by Parliament. However, ZANU PF has changed these provisions, the effect of which is that VPs and PGs are no longer mandatorily required to comply with this obligation.
2.3 This reluctance to make VPs and PGs accountable to Parliament is probably a reflection of the refusal to hold the President accountable before Parliament since the VPs and PGs are direct Presidential appointees. The view is probably that making it an obligation for the VPs and PGs to attend Parliament and answer questions is tantamount to questioning the Presidency.
- 3. Composition of Senate (Presidential Power to Appoint Senators)
3.1 The ZANU PF changes also increase the power of the President over the composition of the Senate as the President can effectively appoint up to 30 senators and this is how this is achieved:
3.1.1 As we have noted, under the ZPF model all 10 Provincial Governors are directly appointed by the President – and each one of them gets a seat in the Senate. The 2 Vice Presidents appointed by the President and they also become non-constituency Senators. There are also 18 chiefs who legally owe their appointment to the President. This means under the ZPF model the President is given the power to appoint at least 30 Senators. Since there are 92 seats in the Senate, this means one person will have the power to appoint almost one third of all Senators – a patently undemocratic circumstance.
3.1.2 Under the Copac Draft, VPs are elected alongside the President so they are not Senators while the Chairpersons of the Metropolitan Councils – Harare and Bulawayo – are not Senators because they already hold Mayoral positions in their cities. The remaining 8 Provincial Governors are not direct Presidential appointees since they are, in effect, chosen by the political party with the highest political representation in each province.
3.1.3 First, ZANU PF’s changes unnecessarily increase the size of Parliament (from 88 to 92), quite apart from their undemocratic character in that they allow more power to the President to affect Parliamentary numbers. All this merely strengthens the hand of the Executive President, giving him or her significant power to affect the composition of Parliament. It also means that if the President’s party does not win the Senate elections, the President can always claw back significant space for his or her party through the appointment of 2 VPs, 10 Governors as Senators.
- 4. Approval of Senate in Constitutional Appointments
4.1 The Copac draft has a provisionwhich requires that where an appointment has to be approved by the Senate, the appointed person cannot start work until Senate approval has actually been given. The purpose of the clause is to ensure that the Senate actually exercises its power of approval and that it is not overridden by a powerful appointing authority – usually the President. If this clause does not exist, the appointing authority can always make an appointment and ignore Senate or allow the person to start work even before Senate has given approval. The collective effect of this would be to make Senate redundant.
4.2 ZANU PF hasremoved this clause rendering the Senate almost irrelevant in an appointment process where its approval is required. The President can make an appointment and ignore Senate notwithstanding that its approval would be required. If the intention is not to weaken Senate, there would have been no need to delete the clause making it obligatory that where an appointment requires Senate approval, the appointee cannot commence work without actually getting that approval.
- 5. Definition of “on the advice of” in Constitutional Appointments
5.1 The words “on the advice of” are usually employed where an authority or a person is required to make appointments working with another person or authority. Another set of words that is used as an alternative is “after consultation with” and sometimes “in consultation with” another person or authority. However, there have been problems with assigning the legal meaning of these words, leading to uncertainty and confusion over whether the person required to act “on the advice of” or “after consultation with” another person is legally obliged to follow the advice or recommendations of that other person.
5.2 The Copac draft sought to lay to rest any doubts over the meanings of these phrases. It states in clause 18.22 that when a person is required to “act on the advice” of another authority, he is legally obliged to follow that advice. This makes for a stronger set of checks and balances where you do not want the person to have too much discretion but rather, you want him or her to rely on the advice of another body.
5.3 It also states that when a person is required to act “in/after consultation with”, it means that he must listen to the recommendations but is not obliged to follow them. This gives him more discretion and he or she can even ignore the recommendations of the other person. The trouble with this phrase is that where you have an arrogant person who does not listen to advice it is not a good set of checks and balances. In an environment where you want the powerful person to act on the advice or recommendations of others, you have to go with “on the advice of” rather than “in/after consultation with”.
5.4 The Copac draft had provided definitions for both phrases for the avoidance of any doubt. However, ZANU PF has in its amendments removed from the part that defines the words “on the advice of” leaving only the definition of “in/after consultation with”. There is no reasonable justification for the removal of this definition which seeks to make things clear and certain. In fact the deletion betrays ZANU PF’s reluctance to use the words “on the advice of” which contain a higher threshold of adherence in preference for the weaker “in/after consultation with” which allows the person to ignore the recommendations. The latter leaves the appointing authority with weaker checks and balances and he or she can pretty much do as he or she wishes. It allows room for arbitrary appointments under the guise of “consultation” whereas the rejected “on the advice of” makes for stronger checks and balances.
- 6. Conclusion
6.1 We have observed in this article that the ZANU PF amendments have the following effect:
6.1.1 VPs and PGs are directly appointed by the President departing from the situation where VPs are directly elected and PGs represent a party with the highest political representation in each province. When persons are elected, they are more likely to be accountable to the electorate but when they are appointed, they become beholden to the appointing authority.
6.1.2 The removal of the mandatory requirement for VPs and PGs to attend Parliament and answer questions from parliamentarians takes away Parliament’s power to bring these offices to account.
6.1.3 The fact that the President appoints the 2 VPs and the 10 PGs as Senators means that in addition to the 18 chiefs, he or she has the power to appoint up to 30 senators and therefore significantly affect the balance of power in Parliament.
6.1.4 The removal of the requirement that where a person’s appointment requires Senate approval must actually receive this approval before commencing work, means the approval requirement can be circumvented, thereby making its effect redundant.
6.1.5 The removal of the definition of the words “on the advice of” which is often used in provisions for constitutional appointments has the effect of maintaining vagueness and uncertainty but it also betrays the reluctance to subject the President’s appointment powers to a more rigorous standard of checks and balances.
wamagaisa (2012)
