This article appears in today’s issue of Newsday.

Government Must Exercise Caution on Constitutional Amendments

Alex T. Magaisa

The major purpose of this article is to urge Government to exercise caution in its proposals to amend the Constitution. A government Minister was quoted recently by the state weekly paper, indicating that constitutional amendments were imminent. But the national charter is barely two years old, has not been fully implemented, and yet Government is already giving signals that it wants to amend it. The justification they are giving is that it is too expensive to implement. This sounds like a very convenient excuse to avoid aspects of the constitution that Zanu PF never wanted.

Having participated in the constitution-making process, and knowing the compromises that were made and also having reviewed the problems regarding some of the clauses, I appreciate that there will be need at some point to fix some weaknesses but these revisions must not fundamentally alter the content which was overwhelmingly endorsed by the people.

This need for caution and the importance of protecting the constitution is the spirit that is evident in the provisions regulating the amendment of the Constitution. I intend here to give a simplified outline of the procedure for the amendment of the Constitution which is dealt with under s. 328 of the Constitution.

As I demonstrate, the procedure is deliberately complex and onerous in order to act as a strong disincentive to unnecessary amendments of the Constitution. The underlying and predominant object behind the onerous provisions is to ensure that the Constitution is protected from amendments at the whim of a sitting government.

The Constitution is an important national document, upon which all laws are founded. The process of making the Constitution was arduous and burdensome. It took a number of years and involved complex negotiations to arrive at a document that reflects a broad range of interests, not the views of a single political party. It required approval at a referendum. With an approval rating of more than ninety percent, the reasoning is that it should take something very important and unavoidable, to require an amendment to the Constitution.

Since political parties in charge of government prefer to panel-beat constitutions and laws to suit their own demands, it was agreed that the Constitution should be given sufficient protections against unnecessary amendments. Not only would this undermine the will of the people, as expressed through the referendum, but it would also be retrogressive as it would lead to a narrower and more partisan Constitution.

This is not to say that there should be no amendments at all to the Constitution. Like all laws, there may be recognition through experience, that it is necessary to amend the Constitution. Some things may not work in the way that was envisaged when the Constitution was passed. It may be necessary to tweak it, but only when it is really necessary.

This was the reasoning when important safeguards were established in s. 328, so that, while recognising that amendments to the Constitution may be necessary, nevertheless, such amendments should go through rigorous scrutiny and through an onerous procedure. This would mean that anyone who wants to amend the Constitution would have to possess a very good reason and solid grounds for doing so.

Now, I will set out the procedural safeguards in s. 328, designed to regulate the procedure for amending the Constitution and therefore to prevent unnecessary amendments.

The safeguards include:

1. The requirement that a Constitutional Bill has to be passed by a special majority in Parliament. Before Presidential assent is given, the Speaker of the National Assembly and the President of the Senate must provide certificate to prove that the Bill was passed by a special majority. Usually, ordinary Bills are passed by a simple majority. However, a Constitutional Bill requires a two-thirds majority of the members of both Houses – the Senate and the National Assembly. It is important to emphasise that this is in respect of all members, not just members who are present when the vote is taken. All of this means the requirement of a special majority is a particularly onerous one.

2. There is also a requirement that any amendment of the Declaration of Rights in Chapter 4 must be put to a national referendum, where it has to be approved by a majority of voters. Parliament alone does not have the power to amend the rights provided for in the Declaration of Rights. This ensures a high level of protection of the fundamental rights and freedoms contained in the Constitution. This adds to the onerous character of the constitutional amendment procedure in respect of fundamental rights and freedoms.

3. A further safeguard is that any Constitutional Bill must be subject to a wider consultative process before it is presented to Parliament. The Speaker has to give at least ninety days’ notice before a Constitutional Bill is introduced to Parliament. After this notice has been given, Parliament is required to invite members of the public to express their views on the proposed Bill. This can be done in public meetings and through written submissions. Parliament has a duty to convene meetings and provide facilities to enable the public to do so. This is a reflection of the process that was used during constitution-making, the idea of which is to ensure that the public is heard and actively participates in the making and amendment of the constitution.

4. A further limitation on the power of amendment is that any proposed amendment which seeks to extend the length of a term-limit provision, will not apply to a person who held or occupied that office, or an equivalent office, at any time before the amendment. This means an incumbent cannot be a beneficiary to a constitutional amendment which seeks to extend his or her term of office. This provision removes the incentive for incumbents to amend the constitution in order to extend their term of office.

5. Since all these safeguards could be removed if the provision which provides for them is easily amended, the provision contains an important mechanism of self-defence. S. 328(9) provides that the provisions which require amendments of the Declaration of Rights and circumscribe the power to extend term limits must not be amended unless they are put to a national referendum. This means amendments to the provision which deals with amendments can only be amended via a national referendum, which makes it very onerous.

The effectiveness and efficiency of the safeguards depends on the balance of power in Parliament and in particular, the strength of the ruling party vis-à-vis the opposition. Where the ruling party has a special majority, these safeguards are easier to surmount as it is likely that a ruling party will be able to whip its members to vote in favour of the Constitutional Bill.

Therefore, in the case of ordinary Constitutional Bills, which require only a special majority, the ruling party would be able to meet that threshold if they have the special majority. Applying this to the present Parliament, it is clear that with a special majority, Zanu PF would be able to meet the threshold to pass amendments to the Constitution, unless there is rebellion within its ranks.

In regards to special Constitutional Bills – for example, Bills that seek to amend the Declaration of Rights – in addition to the special majority in Parliament, they would have to be put to a national referendum. This means if the current government wishes to amend such provisions that require this special procedure, it would have to organise a referendum. Referendums demand resources – time, money and organisational capacity. This is onerous and burdensome.

Given that the country is struggling under the weight of economic challenges, it would have to be a serious matter that would justify taking this route. This means unless it is absolutely necessary, it is hard to see why the government would want to amend provisions that require this special route.

Is it necessary to amend the Constitution?

The first two years of the new Constitution have shown obvious reluctance on the part of government to implement some parts of the Constitution. For example, the devolution provisions have not been implemented. Commissions provided for in the Constitution have not yet been established. Laws required under the Constitution have not been established or realigned. Yet, against this background, the government is already discussing proposals to amend the Constitution.

While there are areas of concern, the proposition to amend the Constitution at this early stage sends very negative signals. This is a negotiated Constitution, and one that was approved overwhelmingly by the majority of Zimbabweans. Any justifications for its amendment so early in its life would have to be on very solid grounds.

These propositions give rise to fears that Zanu PF only wants to get rid of provisions that it never wanted in the first place. Obvious targets would include provisions on devolution and commissions such as the National Peace and Reconciliation Commission. This will be justified on the grounds of lack of money to sustain these institutions, but in reality the reason would be to avoid provisions that they were always opposed to but had to agree to in the constitution-making process.

Amending the Constitution so early only opens the flood-gates to more amendments and before we know it, we shall back to where we were before the constitution-making process. This is a dangerous route to take and the government needs to exercise restraint. If indeed, there where is any reason for changes, then the government should convene a national forum at which the propositions will be scrutinised and if changes must be done they will be done on the basis of a broad-based consensus.

wamagaisa@yahoo.co.uk