WHAT THEY REALLY DON’T WANT TO SEE IN THE NEW CONSTITUTION (Part 3)

Alex T. Magaisa

The last two pieces of this series of comparisons between the current and the COPAC Draft Constitution focussed on the differences between the two in respect of the Office of the President. The comparisons found much favour. This week, we continue with a focus on the security services sector.

The security structure is an important source of power both at national and international level. Those who can draw power from the security structure are likely to have control over others. Within the nation states, the political neutrality of the security structure is important, both for the fairness of the political process but also for the integrity of the nation-state. Since the security services providers are the only lawful holders of arms, it follows that they have exclusive control and a monopoly on the power drawn from the security structure. Any person or political party that can draw favour from the security sector will therefore have an unfair advantage over other competitors for political power. But more importantly, civilian politicians will always be at serious risk from the security service providers if the latter have free passage and interference in politics. Thus from an institutional point of view, power drawn from the security if not regulated and used properly, power drawn from the security structure can be a threat to the very existence of the nation state that it is supposed to protect.

The following is a comparative assessment between the current and Draft Constitution in respect of the security services sector.  Since this is a continuation from the previous two papers, we start from Issue 18.

 

Issue 18	Security Services
Draft Constitution	Chapter 12 dedicated to regulating the distribution of power to and among the security services
Current Constitution	There is no separate chapter. Provides for the structures of the security services but does not regulate the conduct of state power.
Change	The creation of a separate chapter in the Constitution recognises the security forces as an important source and centre of power within the state. The difference is that the new Constitution would not only provide for the creation of the structures in the security services but will also regulate the conduct of members of the security forces who like all other state structures are ultimately accountable not only to the Constitution but to the people from who authority is derived. The draft Constitution specifically requires that all the security services must be regulated by law through Acts of Parliament.
What they don’t want	Clear provisions for regulating the distribution and use of power within the security structures of the state.

 

Issue 19	Human Rights & Rule of Law
Draft Constitution	Clause 12.1(3) specifically enjoins those charged with power in the security services to have the utmost respect for the rule of law fundamental rights and the democratic values and principles enshrined in the Constitution
Current Constitution	There are no such specific obligations
Change	The difference is clearly that whereas the current Constitution is general, vague and unclear, the new Constitution would specifically require security services providers to adhere to and uphold human rights, the rule of law and the democratic values and principles in the Constitution. This sets the ultimate standards upon which the conduct of the security services must be measured.
What they don’t want	Clear constitutional statement that the conduct of security services must adhere to and uphold human rights, democratic values and the rule of law.

 

Issue 20	International Law
Draft Constitution	Requires that in securing national security, it must be done in accordance with the Constitution and the law – which also includes international law. This introduces a constitutional requirement to observe the rules of international law. Clause 12.3 (1) actually specifies that, “Members of the security services must act in accordance with this Constitution and the law, including customary international law and international agreements binding on Zimbabwe”. This would include such agreements as the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide.
Current Constitution	There is no such specific Constitutional requirement.
Change	The difference is that whereas the new Constitution would specifically introduce an international law standard in the conduct of security services, the current constitution is general and vague about these issues. Such international law would include treaties and conventions that protect human rights, including the prevention of abuse of power by security service providers through use of methods such as torture, genocide, etc.
What they don’t want	Clear requirement to adhere to international law in the conduct of the security services.

 

 

Issue 21	Inclusion of the Intelligence Service
Draft Constitution	The intelligence service is recognised and included as one of the security services of Zimbabwe. Clause 12.16 (1) states that “Any intelligence service of the State, other than an intelligence division of the Defence Forces or the Police Service, must be established in terms of an Act of Parliament which, subject to this Constitution, defines the structure, powers, functions and accountability of the intelligence service”. Emphasising political neutrality of the institution, Clause 12.16 (2) states that “Any intelligence service of the State must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution”.
Current Constitution	There is no such recognition.
Change	The fundamental change is that the recognition and inclusion of the intelligence service brings this key agency of state power with the constitutional realm. It would have the effect of requiring the intelligence service to adhere to and uphold the Constitution including its values and principles. As one of the state agencies and institutions it would be specifically enjoined to observe the constitutional standards set for all security service providers and state instrumentalities.  It is notable that Clause 12.1(2) requires that all security services (which include the intelligence service) must be regulated by Acts of Parliament ensuring therefore that no person is above the law.
What they don’t want	The recognition and regulation of the intelligence service by the Constitution.

 

Issue 22	No armed militias or paramilitary bodies
Draft Constitution	Proscribes the formation of armed militias and paramilitary groups outside the structures of established laws.
Current Constitution	No such specific prohibition.
Change	The difference is that the new Constitution would specifically prohibit the formation of armed militias whether funded privately or by the state. All armed groups must be formed in accordance with the law and must therefore be regulated by and adhere to the law. It introduces clear accountability. This is recognition that holders of arms have immense power over others – they can threaten the security of the state and also threaten the security of the public.
What they don’t want	Clear rules that prohibit the formation of militias that can easily be abused to threaten the security of the people.

 

 

Issue 23	Diversity in Membership (should extend to leadership)
Draft Constitution	The new Constitution would require that membership of the security services must reflect the diversity of the people of Zimbabwe.
Current Constitution	No specific clause
Change	The difference is that it becomes a constitutional requirement to ensure that the security forces reflect the demographic composition of Zimbabwe.  Zimbabwe is a diverse country composed of people from different regions, cultures, races, tribes and different gender and sex. It is important that men and women be represented just as it is good for stability that the defence forces, police, intelligence services are not dominated by members of one region, tribe other such index. It allows people to have a sense of belonging and also enables the security forces to communicate and relate more closely to the communities that they serve.
What they don’t want	Clear requirement for diversity in the security services sector.

 

Issue 24	Political Neutrality
Draft Constitution	Clause 12.3 (3) prohibits the security services or any of their members from acting in a partisan manner, to further the interests of any political party or cause or to prejudice the lawful interests of any political party or cause or indeed to violate the rights of any person. A specific provisions states that “Members of the security services must not be active members or office-bearers of any political party or organisation”. Parliament is required to enact a law to ensure the political neutrality of members of the security services. Clause 12.6 (3) on the defence forces also states that Defence Forces “The Defence Forces must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution”.
Current Constitution	Makes no specific provision for political neutrality (although this is no licence for security services to be partisan).
Change	Although under the present system it is unlawful and undemocratic for security services or any of its members to openly demonstrate partisan support for one political party or cause the fact that the new Constitution would specifically make provision prohibiting such conduct makes things clear. It places the issue beyond doubt. The institutional integrity of the state requires a separation between the military and the politics and the independence of the security services. Security services must retain their political neutrality and independence in order to deliver an efficient service to the state. The division is important because the security services draw power from the exclusivity of their control of arms, which exclusive role is created by the law. For example, Clause 12.6 (2) states that “The Defence Forces are the only lawful military forces in Zimbabwe”. Since no one else apart from the security forces (and other authorised by law) can lawfully hold arms, it is important that they remain neutral in the political arena because any partisan loyalty would automatically confer an unfair advantage on the person or party that they support. It is important in this regard, to look beyond the politics of today and consider instead the importance of building institutions for the future.
What they don’t want	Specific constitutional rules that separate the security forces from politics and prohibit partisan political support by the security services.

 

Issue 25	Independent complaints mechanism
Draft Constitution	Clause 12.5 makes provision for the establishment of an independent mechanism for handling complaints against members of the security services. The independent complaints mechanism will also have  powers to remedy any harm caused by the misconduct of members of the security services
Current Constitution	There no specific constitutional provision for such a mechanism.
Change	The difference is that the new Constitution would specifically make provision for the establishment of an independent complaints mechanism which will have powers of remedying any harm caused. This is over and above the normal judicial mechanisms available to members of the public. In addition to providing specific avenues for redress for the public it also has the capacity to help develop a culture of accountability on the part of members of the security forces. The mechanism may take time to fully deliver results but developing this institution is critical in the long term as it could impact heavily on building a culture of accountability.
What they don’t want	An independent complaints mechanism which would provide members of the public with an easier, cheaper and probably faster and more efficient mechanism to resolve complaints against members of the army, police, etc.

 

 

Issue 26	Deployment of Defence Forces
Draft Constitution	Clause 12.8 specifically requires the President to inform Parliament within seven days of the deployment of Defence Forces to defend Zimbabwe against external aggression. 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”.
Current Constitution	No specific constitutional requirement for the President to inform Parliament.
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 and 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. These rules would also have required Parliamentary approval of the deployment of troops into Mozambique to defend the Beira Corridor and therefore Zimbabwe’s national during the 1980s and into the DRC in the late 1990s.
What they don’t want	Provisions ensuring transparency and accountability in the use of the Defence Forces.

 

 

Issue 27	Term Limits for Commanders
Draft Constitution	Clause 12.9 (3) sets a maximum threshold of two terms for Commanders of the Defence Forces or any of their branches. Therefore, the Commander of the Defence Forces, the Army Commander, etc would serve for a maximum of two terms. Each term is set at five years.
Current Constitution	There is no constitutional term limit.
Change	The biggest change is that the new Constitution would set a maximum term limits. This is important for the institution not only to minimise the risk of entrenchment but also to promote progression in the ranks of the defence forces as it opens up vacancies and facilitates promotion of subordinates.
What they don’t want	Maximum term limits for Commanders.

 

Issue 28	Appointment Procedures
Draft Constitution	Clause 12.11 on the membership of the Defence Forces Commission provides that members are appointed by the President subject to the approval of Parliament, following the procedures set out in the Sixth Schedule. As we have seen in this series, the Sixth Schedule sets out a rigorous appointments procedure which ensures that Parliament must approve Presidential nominees. Commanders of the Defences Forces are appointed by the President on the advice of the Defence Forces Commission. (There are similar provisions in respect of other branches of the security services, such as the Police and Correctional Services).
Current Constitution	There is no requirement for Parliamentary approval in the appointment of members of the Commissions.
	The change is that the institution of the Defence Forces Commission (and similar Commissions) is likely to have more independence than is the case at present because the appointment of its members will require Parliamentary approval. If Parliament executes its mandate well, it will check and balance the power of the President so that members of these Commissions are not puppets of the President. These Commissions have a serious responsibility of advising the President in appointing the Commanders, which means their independence and integrity is fundamental.
What they don’t want	Transparency and accountability in the appointment of members of the Defence Forces Commission (and similar Commissions) which have the important responsibility of advising the President in the appointment of key officers in the security services sector.

 

Issue 29	Illegal Orders
Draft Constitution	Clause 12.3 prohibits members of a security service from obeying an order that is manifestly illegal.
Current Constitution	There is no equivalent provision
Change	The new Constitution would effectively make it clear that obeying an illegal order is not defence for members of the security services. For example, torture is manifestly illegal and if a soldier is ordered to torture an individual he cannot argue that he was obeying an order because that order would be manifestly illegal. This places primary responsibility in the hands of the soldier or member of the security services – he can obey lawful orders but he cannot obey manifestly illegal orders. If members of the security services are ordered to perform acts that would constitute genocide and they proceed to perform those acts, they would not defend themselves by saying they were obeying orders because such orders would be manifestly illegal.
What they don’t want	Ensuring that the individual member of the security services takes primary responsibility for his or her actions and has the option to disobey orders that are manifestly illegal.

 

Conclusion

It goes without saying that, the security services sector plays a critical role within the nation state. They are the sole lawful bearers of arms. This exclusivity and monopoly over arms is a source of immense power. This power needs to be controlled constitutionally to ensure that civilians retain control of the affairs of the state. The converse would be a dictatorship by the military which is the very antithesis of democracy and civilised government.  The provisions of the Draft Constitution try to balance the power of the security services sector and the civilians. A civilian, the President is the Commander in Chief and Parliament plays an important role in checking the power of the President to prevent abuse and misuse of the security services.

Political neutrality of the security services is very important. As we have seen structurally the security sector is a key source of power and any person or political party that is favoured by the security services will naturally have an unfair advantage over other competitors. It is important to look beyond the politics of today and think about the institutions that we want for the good of the nation-state. A partisan security services sector is a serious hazard and threat to the threat of the nation-state that it is otherwise designed to safeguard. The Draft Constitution makes reasonable provisions that can be used and improved upon to build credible and enduring institutions in the security services sector. But of course, this does not find favour in some circles. 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)

 

wamagaisa@yahoo.co.uk