Draft Constitution 2012

WHAT THEY REALLY DON’T WANT TO SEE IN THE NEW CONSTITUTION (Part 1)

Alex T. Magaisa

What is it that they find disagreeable about the proposed Constitution? COPAC last week announced a deadlock in the constitution-making process. The impasse apparently emerged after ZANU PF came back from their inter-party consultation process with substantive amendments that would change the draft constitution in a significant way. This comes after months of negotiations in which all parties, including ZANU PF, participated and agreed the substance of the draft constitution.

A key area of contestation is the President’s Office.  The problem is a circumstance of our recent history. Save for the first seven years of the ceremonial Presidency, when the office was occupied by Reverend Banana, the office of the Executive President has been occupied by one man: Robert Mugabe. It’s fair to say his name has almost become synonymous with the Zimbabwean Presidency. When therefore, reforms are suggested in the Office of the President, some see it not as reform of a national institution but rather as an attack on President Mugabe the man.  When suggestions are made to make the Office of the President more accountable to the people through Parliament, it is seen as a direct attack on President Mugabe.

There is no separation between the institution of the Presidency and the individual holding that office. Forgotten in all this is that President Mugabe is not going to occupy the President’s Office forever; that someone – another person will one day sit in that office. The focus must therefore be on the institution rather than the individual. When discussing the Presidency, we must be asking ourselves: What kind of President do we want? Do we want a President with extensive powers, unlimited by Parliament or do we aspire for a Presidency that is accountable to the people through their representatives in Parliament?

I believe that we must make a constitution to save ourselves from ourselves. This is because history has proven that humankind cannot be trusted with unlimited power.  We have to put in place checks and balances to save ourselves from our own excesses.

To identify the differences, I have worked through the COPAC Draft Constitution and compared it with the present Constitution in regard to the Office of the President. My assessment is that there are significant differences and further, that the Draft Constitution makes important improvements to the Office of the President, making it more accountable to the people.

I had drawn a table so that the comparative assessment would be easy on the eye. But the blog space did not accommodate the table well – it became an eyesore – so I decided to change format. Instead of presenting all the issues, I will start with the first seven to be followed by more tomorrow.

Issue 1	Executive Authority
Current Constitution	There is no specific clause stating the source of Executive authority
Draft Constitution	Clause 6.1 (1) states that “Executive authority derives from the people of Zimbabwe …”
Change	The difference is that the new Constitution specifies the source of executive authority as deriving from the people of Zimbabwe whereas the current Constitution does not. This is an important constitutional statement which makes it clear that whoever exercises executive authority is ultimately accountable to the people because it is from them that such authority is derived. It means that whoever is vested with executive authority by the Constitution is exercising authority delegated by the people of Zimbabwe.  He or she exercises such authority at their pleasure. The people from whom executive authority derives have the right to withdraw it from whomsoever it is delegated in terms of the Constitution. It reaffirms the principle of people power.
What they don’t want:	The firm and clear constitutional restatement that executive authority derives from the people.

 

Issue 2	Sharing Executive Authority
Current Constitution	Section 31H states that the executive authority of Zimbabwe shall vest in the President which he may exercise directly or through the Cabinet, a Vice-President, a Minister or a Deputy Minister.
Draft Constitution	Clause 6.1 (2) states that the national executive authority of Zimbabwe vests in the President and the Cabinet.
Change	The difference is that whereas the current Constitution vests executive authority exclusively in the President, the new Constitution would vest executive authority in both the President and his Cabinet.The new Constitution specifically and directly vests Cabinet with executive authority whereas the current Constitution makes it exclusive to the President, delegating it to Cabinet as he or she wishes. The new Constitution means Cabinet will be directly accountable to the people, from whom, as we have seen, executive authority is derived.  It also means Cabinet will have to take their responsibility more seriously and the President will also have to take the Cabinet more seriously. Opponents of this clause feel it dilutes the President’s executive authority which in their view should be held exclusively.
What they don’t want:	That executive authority is shared between the President and Cabinet and that Cabinet is accountable directly to the people from whom authority is derived.

Issue 3	Precedence
Current ConstitutionDraft Constitution	Section 27 states that the President takes precedence over all other persons in Zimbabwe.
Draft Constitution	Clause 6.2 simply states that the President is the Head of State and Government and the Commander-in-Chief of the Defence Forces but omits the clause that he shall take precedence over everyone else.
Change	The difference is that whereas the current Constitution gives precedence to the President over all other persons which suggests superiority of one person over others, the new Constitution omits this anachronistic clause consistent with equality and non-discrimination provision in Clause 4.7 of the Bill of Rights which states that “Everyone is equal before the law and has the right to equal protection and benefit of the law”.There is no need for a provision that gives the impression that the President is superior to those who elect him or her into office. The idea that one has precedence over others derives from ancient monarchical systems and modern democracies ought to be moving away from that archaic system.
What they don’t want:	That the President is at law equal to all other persons.

 

Issue 4	Presidential Duties
Current Constitution	Clause 31H simply provides for a general duty to be observed by the President.
New Constitution	Clause 6.3 provides for specific duties to be observed by the President.
Change	The difference is that whereas the current Constitution makes provision for specific duties that the President must observe, the current Constitution only provides for a general duty. Not only does the new Constitution require the President to uphold the Constitution and the laws of Zimbabwe but it also goes further  to specify that the must  respect,o specifiy that he must  e Constitution and the laws of Zimbabwevision for specific duties that the President must observe, the obey and defend the Constitution and ensure that it is faithfully observed. Therefore the new constitution creates positive obligations on the President to take positive steps to ensure respect for the Constitution. If others disobey or violate the Constitution he must defend and ensure that it is respected.  Also different from the current constitution is the positive duty stated in the new Constitution that the President must promote the observance and fulfilment of fundamental human rights. This statement places specific obligations on the President in the protection of human rights.
What they don’t want:	The specific duties that the President must observe, including the duty to promote the enjoyment of human rights.

 

Issue 5	Legislative Authority
Current Constitution	Section 32 states that the legislative authority of Zimbabwe vests in the Legislature which shall consist of the President and Parliament.
Draft Constitution	Clause 7.1 the national legislative authority of Zimbabwe is derived from the people and is vested in and exercised by Parliament.
Change	There are two differences:First, that unlike the current Constitution, the new Constitution specifies that legislative authority derives from the people of Zimbabwe.  Second, and more importantly, unlike the current Constitution, the new Constitution omits the President from the legislature.  This means that the President does not have the authority to make laws unless, of course, Parliament delegates that power. It keeps the President away from the law-making domain of Parliament which is now given this exclusive power, consistent with the principle of Separation of Powers.
What they don’t want	The removal of the President from the legislature and confining the office to executive functions.

 

Issue 6	Power of Mercy
Current Constitution	In terms of Section 31I the President has a wide discretion to grant pardons, amnesties, reprieves, etc, to criminal offenders.
Draft Constitution	Clause 6.23 allows the President to exercise the power of mercy but in exercising the power he or she must consult an Advisory Committee on the Power of Mercy created under the Constitution.
Change	The difference is that whereas under the current Constitution the President acts alone in exercising the prerogative of mercy, under the new Constitution he would have to consult an independent committee when exercising this power. This acts as an important check to minimise the abuse of the power of mercy which might be used to grant pardons to political allies who would have committed offences in expectation of getting reprieves. This would otherwise encourage a culture of impunity.Secondly, by substituting the terminology of “prerogative of mercy” with the new formulation of the “power of mercy”, the new Constitution moves progressively away from the language and culture of prerogatives deriving from ancient monarchical systems. It also opens the door for the judicial review of the exercise of such powers. Judicial review is a known important check on the exercise of executive power.
What they don’t want:	Subjecting the President’s exercise of the power of mercy to checks and balances and modernising the language and concepts in the Constitution.

 

Issue 7	Presidential Terms of Office
Current Constitution	No term limits.
Draft Constitution	Clauses 6.4 and 6.8 provide that a President will serve a maximum of two terms of five years each.The Constitution also provides that a person who has served at least three years will be deemed to have served a full term Change
Change	The difference is that whereas the new Constitution would provide for maximum term limits for the President, the current Constitution provides for unlimited terms.
What they don’t want:	Presidential term limits allowing for life presidency.

 

 

Part 2 will be published tomorrow.

 

waMagaisa (2012)

 

wamagaisa@yahoo.co.uk