PRESIDENT Emmerson Mnangagwa’s dictatorial tendencies and his power consolidation bid have been strengthened by the expected passing of Constitution of Zimbabwe Amendment (No. 2) Bill which allows him to concentrate power in his hands while undermining other arms of the state, such as the judiciary and the legislature.
OWEN GAGARE
The Bill will also 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.
In addition, the Bill allows him to remove the running mate close, helping him contain Vice-President Constantino Chiwenga, who in any case is already on the backfoot because of the incremental gains Mnangagwa has scored since the 2017 military coup which thrust him into power.
Government officials told The NewsHawks that through the Bill, Mnangagwa had taken a step closer to fully consolidating power.
“This is a giant step in his consolidation bid which has been on the agenda since the day he came into office. The Bill is significant and should be seen as part of the consolidation drive,” said an official.
“It has been long in coming but it was all calculated. First it was managing Zanu PF dynamics by containing his deputy Chiwenga, by removing his key military backers from the army by, among other things, giving them diplomatic positions, removing commanders of the units which played prominent roles in the coup as they were seen as being loyal to Chiwenga.
“He further consolidated by surrounding himself with his close friends and associates mostly from his ethnic Karanga clan and, of course, Covid-19 was helpful in his consolidation bid as it claimed the lives of Chiwenga’s closest allies from the military, Foreign Affairs minister Sibusiso Moyo and Agriculture minister Perrance Shiri.”
In a Constitution Watch bulletin, Veritas, a lawyers’ grouping with an interest in legal, constitutional and parliamentary issues, came to the conclusion that the Bill had “two primary interlinked aims, which are: to increase the Executive’s power, mostly at the expense of the other arms of government, namely Parliament and the Judiciary, and to concentrate that power in the person of the President.”
Veritas also noted that the constitution should not be amended lightly and that tge government had not given reasons for the Bill.
“It has not even explained why any of the proposed amendments are necessary or desirable. The Bill’s memorandum does no more than state, very briefly, what the amendments will do but does not explain the reasons behind them.
It is important that such an explanation should be given because section 328(4) of the Constitution requires Parliament to convene meetings at which members of the public can express their views on proposed constitutional amendments. How can members of the public formulate sensible views on the Bill, much less express them, if they do not know why the Bill has been put forward?” asked Veritas.
Below is an assessment of the Bill by Veritas:
Themes of the Bill
Increase in the power of the Executive
The Executive and Parliament
(a) Limiting Parliament’s power to veto loan agreements
Clause 23 of the Bill, if proceeded with, will deprive Parliament of its right to approve or veto financing agreements entered into by the government with foreign entities such as banks. This right is essential for Parliament to oversee state revenues and expenditures in terms of section 299 of the constitution, and removing it would seriously diminish Parliament’s power vis-à-vis the executive.
On 3 March, Justice minister Ziyambi Ziyambi indicated to the National Assembly that he does not intend to proceed with clause 23, but the clause remains part of the Bill. The fact that he may withdraw the clause suggests it was not properly thought out in the first place ‒ in other words, there were no compelling reasons for it.
(b) Extending provision for party-list members of 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 on 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.
The executive and the judiciary
The Bill seeks to permit the President to promote judges of the High Court and the Supreme Court to a higher court on the recommendation of the Judicial Service Commission (JSC), without the need for public interviews, thereby opening the door to promotions on the basis of political suitability and cronyism.
Allow 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, 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, which itself is a founding value of our 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. As stated in Constitution Watch 5/2020, 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, that is, 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. Obviously 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: section 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 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 Judicial Service Commission 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.
Conclusion
The effect of the Bill will be to remove constitutional limits on the exercise of power by the executive and to concentrate that power in the central government and in the President personally. It would be an exaggeration to say that the Bill represents a wholesale assault on Zimbabwe’s democracy: it does not go that far. If enacted, however, it will amount to a chipping away at our constitutional democracy and will go some way towards restoring former president Robert Mugabe’s constitutional dictatorship.
