Liberating Parliament from the Shackles of Presidential Discretion

 

Alex T. Magaisa

 

1. The aftermath of the 2008 election demonstrated that Parliament is at the mercy of presidential discretion, which is easily prone to abuse.

 

2. In case memory fails the reader, after the March 2008 harmonised elections, elected members of Parliament and Senators (MPs) were, for almost half a year, unable to perform their constitutional mandate simply because Parliament had not been convened as required under the electoral laws.

 

3. They were unable to do so because Parliament could not have its first sitting without the relevant call which is supposed to be made by the President. Unless the President fixed the date of the first sitting, Parliament was effectively immobilised and unable to function.

 

4. At the time, there was due to be a presidential run-off election which later became a one-man race after Mr Tsvangirai, the  MDC-T leader and winner of the first presidential election withdrew from the contest citing extensive violence and intimidation against his supporters.

 

5. However, the fact that the Presidential election had not been concluded should not have precluded the convening of Parliament as required by the law. President Mugabe, whom, in accordance with the constitution, continued to hold office as President during the intervening period, could still have called for the convening of Parliament, thereby enabling the third arm of the state to function and perform its constitutional role. This did not happen.

 

6. As it happened, Parliament was effectively redundant and for months the country was running with only two arms of the state, namely the Executive and the Judiciary, a scenario that placed democracy and constitutional legitimacy at serious peril.

 

7. This situation was completely inconsistent with the principle of separation of powers. It also meant that there was no constitutional body carrying out the functions of checking and balancing the powers of the executive. More fundamentally, it meant that people were unable to express themselves and participate in government through their lawfully elected representatives of the people.

 

8. The MPs and Senators were powerless as they could only convene at Parliament following a call by the President. This effectively meant that constitutionally, the fate of Parliament was in the hands of one person. Legally, it meant that one arm of the state was constitutionally dependent for the start of its life on another arm of the state. This made Parliament subservient to the Executive from the very onset.

 

9. In crafting the new Constitution, attention was drawn to this negative circumstance, which clearly needed a solution in order to liberate Parliament from the shackles of Presidential discretion. It was important to ensure that Parliament has residual power to commence life, in the absence of a call by the President for its first sitting. The idea is essentially to give Parliament the power to assert itself in the event that the President fails to perform his legal duty to call for its first sitting.

 

10. This is achieved through Clause 7.30 of the draft constitution. It states that the first sitting of Parliament after a general election must take place at a time and date determined by the President, but the date must not be later than thirty days after the general election was held. Therefore, there is a 30 day maximum threshold within which Parliament must be convened for the first time.

 

11. In the event that the President fails to fix the date, the first sitting of both Houses of Parliament will be called for by the persons who last held office as President of the Senate and as the Speaker of the National. This must be done within seven days after the expiry of the thirty-day period within which the President should have called for the first sitting.

 

12. Further, in the event that the last Speaker and President of Senate fail or refuse to summon the respective Houses, the Chief Justice has the power to summon the House. This must be done within seven days after the expiration of the period within which the last President of Senate or the last Speaker of the National Assembly should have summoned the Houses.

 

13. Therefore, in effect, the Constitution now provides for a default position in the event that the President fails to act. However, the default position would not be enough if it ended there because it still leaves Parliament at the mercy of other persons’ discretion.

 

14. The biggest innovation of the draft constitution in this regard is that it now provides a ‘fail-safe’ default position that gives Parliament the power to convene itself in the event that the persons who have the power to call for the first sitting refuse or fail to exercise that power. This is provided for in the sub-clause that states that:

 

“If for any reason none of the persons specified in subsection (2) summons a House of Parliament, the members of the House must meet, in the chamber where the House usually meets, on the seventh day after the last date on which the House should have been summoned to meet in terms of that subsection, and the business of the House may proceed as if it were meeting on a date fixed in terms of subsection (1)”.

 

15. The effect of this provision is that parliamentarians can physically proceed to meet at Parliament building and commence business.  The persons who last held office as President of Senate or Speaker of the National Assembly will preside over the respective Houses but if none of those is available or unwilling to perform the role, the MPs and Senators present are entitled to elect members to preside over each House.

 

16. The net effect is that the fate of Parliament is no longer in the hands of one person. The draft constitution has built in default positions to ensure that if all else fails, Parliament should be able to commence life by itself without having to wait for the President’s call. The hope is that use of this power will not be required.

 

17. However, the possibility cannot be discounted. This clause is based on experience given what happened in 2008 when Parliament was left in limbo and there was technically, a constitutional crisis. The important thing is that whoever sits in the President’s Office will now have an incentive to act knowing that if they do not act, Parliament will ultimately have the power to exercise the right to assert itself. That can only be a good thing for democracy.

 

wamagaisa (2012)

 

wamagaisa@yahoo.co.uk