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Constitution of Zim Amendment (No.1 and No.2) Bills: The summary

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THE Constitution of Zimbabwe Amendment (No.1 and No.2) Bills, which are awaiting presidential assent, will serve to aid President Emmerson Mnangagwa’s power consolidation bid, by weakening other arms of the state such as the judiciary.

OWEN GAGARE

The Bills, when assented to, will allow him to extend Chief Justice Luke Malaba’s term beyond 70, enabling him to be in office during the 2023 elections, when he might need him to superintend over any electoral challenges, like he did in 2018.

The Zimbabwe Amendment (No.2) Bill allows him to remove the running mate close so that he has a pliant deputy, while giving him greater control over cabinet, the Prosecutor-General and Public Protector. Below is a summary of the Bills, taken from an analysis by Veritas, a lawyer grouping with an interest in constitutional, legal and parliamentary affairs.

Constitution of Zimbabwe Amendment (No.1) Bill
The main effect of the Bill is to change the procedure for the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court.

These appointments will now be made by the President after consultation with the Judicial Service Commission (JSC).

Constitution of Zimbabwe Amendment (No.2) Bill

The executive and the judiciary
It permits the President to promote judges of the High Court and the Supreme Court to a higher court on the recommendation of the JSC, without the need for public interviews, thereby opening the door to promotions on the basis of political suitability and cronyism.

It allows judges of the Constitutional Court and the Supreme Court to continue to serve beyond the current retirement age of 70, if the President, after consulting the JSC, consents to their doing so. 

This will strip those judges of their security of tenure and hence their independence, since they will hold office from year to year subject to the President’s consent.

The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance. Judicial officers must be independent and impartial, and must be perceived to be so by the general public. 

By increasing the President’s power over judges, the Bill will reduce their independence and their perceived impartiality.

Retreat from devolution
One of the principles of good governance, itself a founding value of the constitution, is the devolution and decentralisation of governmental power and functions [section 3(2)(l) of the constitution]. 

Pursuant to this principle, chapter 14 of the constitution establishes provincial and metropolitan councils to further the social and economic development of Zimbabwe’s provinces.

The Bill will reduce the size of councils by providing that members of Parliament will no longer be council members.  This may improve the efficiency of the councils, but it will make them less representative of the political leadership of their provinces. 

By making councils less influential, the Bill will correspondingly increase the influence and power of central government. 

Concentration of power in the President personally
The second main theme of the Bill is to concentrate executive power in the person of the President.  The President’s personal power will be increased in the following ways:

Power to choose vice-presidents
Starting from the election in 2023, presidential candidates will have to nominate two vice-presidential candidates to stand together with them as a team; if elected, the vice-presidents will have the same security of tenure as the President ‒ i.e. the President will not be able to dismiss them ‒ and succession in the event of the President’s ceasing to hold office will be fixed before the election.

The Bill seeks to preserve the system that is currently in force, under which the President chooses vice-presidents after his or her election and they hold office at the President’s pleasure. This will increase the President’s control over his vice-presidents.

Appointment of non-parliamentary ministers
The Bill seeks to allow the President to appoint up to seven ministers from outside Parliament.  At present, he can appoint only five.

Increasing the number of non-parliamentary ministers will extend the President’s power to control his cabinet as well as extending his powers of patronage. Non-parliamentary ministers, moreover, may not be amenable to attending Parliament and answering questions from parliamentarians.

Appointment and dismissal of the Prosecutor-General
At present, the procedures for appointing and dismissing the Prosecutor-General are the same as those for a judge.

The Bill proposes to alter this by removing the need for public interviews of candidates before the President appoints a Prosecutor-General, and by giving the President the ultimate discretion to decide whether or not a Prosecutor-General should be dismissed.

Once again, the President’s personal power will be increased.  It may be noted that in deciding on the appointment or dismissal of a Prosecutor-General the President will not have to act on the advice of his cabinet:  sections 110(2)(d) and (6) of the constitution. 

The proposed amendment will also, of course, decrease the Prosecutor-General’s independence, something on which great weight was put during the constitution-making process.

Chief Secretary to the President and cabinet
By making the Chief Secretary to the Office of the President and Cabinet a constitutional office-holder, the Bill will increase his or her status and the already extensive influence of the President’s Office. 

By giving the President, rather than the Civil Service Commission, power to fix the Chief Secretary’s salary and term of office, the Bill will once again increase the President’s personal power because he will not have to consult the Cabinet.

Public Protector
Here, too, the Bill will increase the President’s personal power by allowing him to appoint and dismiss the Public Protector after mere consultation (in this case with the JSC and Parliament’s Committee on Standing Rules and Orders).

In other words, the office of Public Protector will be yet another office within the President’s gift. 

Extending provision for party-list members of the National Assembly
Extending the provision for 60 party-list women members of the National Assembly for another 10 years, and adding 10 party-list youth members to the National Assembly, will increase the number of parliamentarians on whom the government can rely for support without significantly increasing the real power of women and youths in politics ‒ a goal which would be better achieved by appointing more women and youths as ministers and putting measures in place to ensure parties select more women and youths for election in constituencies.

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