Draft Constitution 2012
WHAT THEY REALLY DON’T WANT TO SEE IN THE NEW CONSTITUTION (Part 2)
Alex T. Magaisa
The preceding blog presented the first part of the comparison between the provisions of the current Constitution and the Draft Constitution in respect of the Office of the President. I indicated that the powers vested in that office and the limitations of those powers form major points of contestation. Between 1980 and 1987, Zimbabwe had a ceremonial Presidency and a Prime Minister who exercised executive powers. The structure was modelled along the lines of the Westminster model in the Great Britain, the former colonial power. Therefore, like the British monarch, the President was the Head of State with largely a ceremonial role. The Prime Minister, like his British counterpart, was the Head of Government.
Constitutional Amendment No. 7, fundamentally transformed the legal structure of the state with the introduction of the office of the Executive President. The ceremonial Presidency was abolished as was the Prime Minister’s position – the two being replaced by a powerful office of the Executive President, which combined the ceremonial functions of the President and executive functions of the Prime Minister. There was always a risk of conflating the ceremonial functions and the executive functions with the risk of having ceremonial functions being exercised as if they were executive functions.
The major problem though was that the creation of an all-powerful Executive Presidency impacted on the other the other arms of the state, particularly Parliament. Its subservience, underwritten in the Constitutional provisions, was exacerbated by the fact that with the Unity Accord between ZANU PF and PF ZAPU in 1987, Zimbabwe was in all but name effectively a One Party State. When you have a Parliament that is almost exclusively held by one party with the party also holding the Presidency, it means that the Executive, through the agency of the Office of the President is able to dominate Parliament and Parliament will struggle to exercise its role of checking and balancing the Executive.
This series of papers demonstrates attempts through the proposed Constitution aimed at redressing this imbalance between the Office of the President and Parliament. This is Part 2 of the series that commenced in yesterday’s blog:
| Issue 8 | Presidential Veto on Legislation |
| Current Constitution | Section 51 of the Constitution allows the President a facility to dissolve Parliament if it insists by a two thirds majority on passing a Bill that he has vetoed. |
| Draft Constitution | Clause 7.16 states that if the President is not happy with a Bill passed by Parliament he may return it to Parliament for reconsideration but if Parliament approves the Bill by a two-thirds majority, then the President must either sign it into law or present it to the Constitutional Court for an advisory opinion on its constitutionality. If the Constitutional Court says that the Bill is constitutional, the President has no choice but to sign it. |
| Change | The difference is that whereas under the present Constitution the President can basically dissolve Parliament if it disagrees with him or her on a Bill, the new Constitution would take away this power and obligate the President to sign the Bill into law if any of the circumstances stated is satisfied. In other words, the new Constitution would limit the Presidential veto on legislation, making it consistent with best practice. It is undemocratic and absurd that under the current Constitution, the President can actually dissolve Parliament if there is a disagreement over a Bill. It gave the President too much power. |
| What they don’t want: | The limitations of the Presidential veto on legislation. |
| Issue 9 | Justiciability of Presidential Powers |
| Current Constitution | Section 31K limits the justiciability of the exercise of certain Presidential powers. It means that the power of courts to make judgment on the exercise of such powers is limited. |
| Draft Constitution | The proposed Constitution will not place specific limitations on justiciability of Presidential powers. |
| Change | The limitation on justiciability was introduced through Amendment No. 7 in 1987, which introduced the Executive President’s Office. The difference is that whereas the current Constitution limits the power of courts to determine the exercise of certain Presidential powers, the new Constitution will to specifically do that.The limitations on judicial powers under the current Constitution creates a moral hazard in that the President can abuse his powers or fail to observe the requirements of the procedural Constitution comfortable under the constitutional protection that such powers cannot be challenged before a court of law. This is particularly absurd where the President is required to act on the basis of consultations or advice or recommendation of other persons. Surely to place this beyond the jurisdiction of the courts is to give undue power to the office of the President and reduces the accountability of that office.There must be a facility to ensure that the President exercises his powers within limits as provided for by the law. The only limitation that might be expected is in respect of the subject matter – where some areas are non-justiciable for example whether or not a President should sign an international treaty. Otherwise the courts should generally have the power to determine whether the President is exercising his powers constitutionally and lawfully.
It would be absurd if it were otherwise given that the Constitution is the supreme law of the land and it obligates the President to observe its terms and defend it. To make the President’s exercise of those powers non-justiciable is to place him above judicial scrutiny and potentially above the Constitution which he is expected to uphold. The new Constitution would ensure that the President’s exercise of his powers is justiciable depending on the subject matter. If the Constitution is the supreme law of the land, then the President should adhere to it and everyone, including the President who is given power by the Constitution must be subjected to judicial scrutiny.
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| What they don’t want: | That the President’s exercise of powers can be challenged before a court of law and made accountable to the people and the Constitution. |
| Issue 10 | Power to Appoint Ministers |
| Current Constitution | Section 32 gives the President the power to appoint an unlimited number of Ministers and Deputy Ministers (This has been qualified by the provision of the GPA which has not been adhered to and will lapse when the GPA comes to an end) |
| Draft Constitution | Clause 6.16 6 provides for specific limitations on the number of Ministers and Deputy Ministers. |
| Change | The difference is that whereas there is no limitation on the numbers of ministers and deputy ministers under the current Constitution, this will change under the new Constitution which makes specific limitations on the number – 25 and 15 respectively. Any change would require the consent of Parliament. This curbs the power of the President and minimises the risk of ministerial appointments on the basis of patronage. Importantly, it avoids the risk of a bloated Cabinet and the costs that come with it. |
| What they don’t want: | Limitations on the number of ministers and deputy ministers that may be appointed by the President. |
| Issue 11 | Assumption of Office by new President |
| Current Constitution | Section 28 allows for the immediate inauguration of the President on the day upon which he is declared to be elected or within forty-eight hours. |
| Draft Constitution | Clause 6.7 states that where there is no challenge to the election of a President, the new President will be inaugurated on the ninth day after the date of the declaration of the result of the presidential election but if there is a challenge, he or she will be inaugurated within forty-eight hours after the date on which the Constitutional Court makes its final decision. |
| Change | The difference is that whereas the current Constitution allows immediate inauguration and fails to take into account challenges to the Presidential election, the new Constitution would provide for an orderly inauguration that accommodates potential challenges and allows for finality in the resolution of any dispute before inauguration.The problem with the current system is that it encourages a rush to inauguration, a situation whereby even where there is a disputed result, the declared winner nevertheless assumes the Presidency. The person challenging the result is forced to fight the election result from a position of weakness while his opponent is already serving the new term. Experience shows that it is extremely difficult to fight a person who has already been sworn in to office. It is fairer and better to have the matter resolved before anyone assumes office and this is what the new Constitution proposes to do.It will mean that if there is a dispute to an election result it must first be resolved by the Constitutional Court before the winner is inaugurated. The new Constitution accommodates a presidential election challenge before inauguration which the current Constitution does not do. The new system would be fairer than the current one.
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| What they don’t want: | A fair system that provides for orderly, fairer and democratic transition and inauguration taking into account electoral challenges. They prefer a system that permits the phenomenon of the rush to inauguration which facilitates the stealing of elections and places the challenger at an unfair disadvantage. |
| Issue 12 | Resolving Presidential election dispute |
| Current Constitution | Disputes over the Presidential election are subject to the Electoral Act. |
| Draft Constitution | Clause 6.6 specifically provides for a procedure to resolve disputes of the Presidential election result. It sets out clear time limits and ensures that there is finality to litigation before the Constitutional Court, which will be the highest court in the land. |
| Change | The difference is that the new Constitution will provide a for a clear, expeditious and efficient method for resolving Presidential election disputes. The current system is problematic because matters are handled under the Electoral Law by the Electoral Court and experience has shown that the procedure under the Electoral Act is painfully slow and inefficient. Unlike the new system it does not provide for time limits on resolving such disputes.It also involves serious delays because even if the Electoral Court makes a decision it will still be subject to an appeal. The absurdity of the current system is illustrated by the fact that judgment on the 2002 Presidential election petition is yet to be delivered by the court – 10 years and almost two terms after the event. The new procedure under the Constitutional Court, together with the time limits provides for finality in dispute resolution. |
| What they don’t want: | A fair, quick and efficient method of resolving disputes over the Presidential election result leading to finality in litigation. |
| Issue 13 | Presidential Appointments |
| Current Constitution | The President has wide discretion to appoint senior government officials, including Commissioners, Ambassadors, Governors, etc. Even the provisions for consultations and advice under the GPA have been given short shrift. |
| Draft Constitution | The new Constitution provides for the creation of a Parliamentary Public Appointments Committee which will approve Presidential appointments and also select candidates for other key appointments. |
| Change | The key difference is that the President’s power to appoint senior public officials will not be subject to Parliamentary checks and balances compared to the present system where Presidential discretion is excessive and almost unfettered. |
| What they don’t want: | Provisions to check and balance the power of the President in the appointment of senior public officials. |
| Issue 14 | Voters’ Roll |
| Current Constitution | Under the Electoral Act, the Electoral Commission shares responsibility with the Registrar General’s Office which, in fact, is in charge of the voter registration process and the voters’ roll |
| Draft Constitution | Clause 13.8 (c.) states that the Electoral Commission will be solely in charge of registering voters, the compilation and maintenance of the voters’ rolls and registers and to ensure their integrity. |
| Change | The difference is that whereas the Registrar General is in charge of the voters’ roll and voter registration, under the new Constitution this power will be held exclusively by the Electoral Commission. The Registrar General’s Office has been severely criticised for its inefficient handling of voter registration and a voters’ roll whose integrity and credibility has been questioned. It is important that the body in charge of running elections must have complete control of the voter registration process and the voters’ roll. |
| What they don’t want: | Provisions for a safer, secure and more credible institutional mechanism for registration of voters and compilation and maintenance of the voters’ roll. They prefer instead to retain the much criticised and inefficient system over which the Registrar General presides. |
| Issue 15 | President’s accountability to Parliament |
| Current Constitution | No specific provision for accountability to Parliament |
| Draft Constitution | Clause 7.4 (2) states that Parliament must 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.Clause 7.4 (3) also states that all institutions and agencies of the State and Government are accountable to Parliament. |
| Change | The difference is that whereas the current Constitution does not make specific reference to the executive’s accountability to Parliament, the new Constitution would specifically make all state and government institutions and agencies directly accountable to Parliament. The Presidency is an institution and agency of the state and government and must therefore be accountable to Parliament. |
| What they don’t want: | A system that makes the President accountable to Parliament, which comprises of the representatives of the people. |
| Issue 16 | Deployment of Defence Forces |
| Current Constitution | No specific constitutional requirement for the President to inform Parliament. |
| Draft Constitution | Clause 12.8 specifically requires the President to inform Parliament within seven days of the deployment of Defence Forces to defend Zimbabwe.There is also a specific requirement for prior approval of Parliament for the deployment of the Defence Forces within the country to support the police to maintain public order and other civilian agencies in the event of an emergency or disaster or outside in fulfilment of international commitment of defence of national interest.Where it is not reasonably possible to seek prior approval, it must nevertheless be obtained within fourteen days. In that case the President has onerous obligations to give sufficient detail of the deployment including,
“(a) the reasons for the deployment; (b) the place in Zimbabwe or the country where the Defence Forces are deployed; (c) the number of people involved; and (d) the period for which the Defence Forces are expected to be deployed”.
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| Change | The difference is that whereas the current Constitution provides almost unfettered powers to the President for the deployment of Defence Forces, the new Constitution would require accountability to Parliament depending on the nature of the deployment. The President would be constitutionally required to inform Parliament in in other cases to seek prior approval of Parliament.This accountability prevents or at least minimises the abuse of the Defence Forces and facilitates accountability of the President and the Defence Forces to the people through their parliamentary representatives. If this rule applied, the 1980s deployment of the Fifth Brigade in Matabeleland during Gukurahundi or the use of the defence forces during Operation Murambatsvina, for example, to be lawful would have required Parliamentary approval if this constitutional requirement existed at the relevant times |
| What they don’t want: | Making the President accountable to Parliament and ultimately the people in regard to the use of the Defence Forces. |
| Issue 17 | First Siting of Parliament |
| Current Constitution | Under the Electoral laws, MPs who have been elected in a General Election must wait to be called by the President before they can be sworn into office and commence business. |
| Draft Constitution | Clause 7.30 gives Parliament the power to commence business if the President fails or refuses to call MPS to their First Sitting after a General Election. |
| Change | The difference is that whereas under the current laws the President holds the power to determine when Parliament first convenes and starts business, under the new Constitution Parliament would have the power to commence business on its own. The fate of Parliament is no longer in the hands of one person in the form of the President. |
| What they don’t want: | Provisions that enable MPs to convene and commence the business of Parliament in the event that the President fails or refuses to call them to their First Sitting after a General Election. |
Conclusion
As I stated at the start of this series of papers comparing the current and the draft constitutions, in creating a new Constitution, it is important to separate the individuals from the institutions. Reform of the President’s Office should be seen as institutional reform because that office will be occupied by different types of characters. Of course, reforms cannot ignore our experience – a country that does not learn from its errors is likely to repeat those mistakes in the future. Experience is not a bad teacher. My own conclusion is that even though the Draft Constitution might require improvements in some respects, it makes important improvements that enhance accountability and transparency in the conduct of the affairs of the state. The Constitution may have retained the Executive Presidency but it has done so with important checks and balances to ensure that the risk of abuse of power is minimised. But of course there are those who would rather these changes never see the light of day. But at least the public deserves to know the difference between the current and the proposed constitutions. You be the judge.
waMagaisa (2012)
these series are so informative and easy to follow, thanks a lot
Thank you Faith. Glad to know they help.
A very informative and clear comparison of the current constitution and the draft constitution.