THE passing of the Constitutional Amendment (No.2) Bill by Senate on Tuesday is a tragic move for Zimbabwe, as the country – courtesy of its legislators – has set itself up for constitutional failure by creating an imperial president and entrenching despotism, analysts have said.
Described as a sad milestone by analysts this week, the passing of the Bill, which was aided by several MDC-T members, has far-reaching ramifications for democracy in Zimbabwe. Unsurprisingly, there was joy in the Zanu PF camp which found a convenient alliance in a captured ‘opposition’.
The Bill sailed through the Third Reading stage after 65 senators voted in the affirmative, while 10 rejected it.
It now awaits President Emmerson Mnangagwa’s assent, after which it becomes the Constitution of Zimbabwe Amendment (No.2) Act, thus effectively changing the constitution, adopted by 94.5% of 3.3 million people who voted in a referendum on 16 and 17 March 2013.
Although Mnangagwa promised widespread reforms when he took over power in a military coup in 2017, which included alignment of the existing laws with the 2013 constitution, he has not only abandoned the alignment midway, but also looks poised to trample the country’s supreme law for political gain.
With political reforms remaining a sticky issue in Mnangagwa’s international re-engagement, the current amendments have worsened Zimbabwe’s pariah status, with the country’s chances of re-joining the Commonwealth receding by the day.
This amendment seeks to change the retirement age of judges, obliterate the public interview process for judges which was largely viewed as a critical component in ensuring the transparency of the process, remove the presidential running mate clause, extend the women’s quota, introduce a youth quota, increase the number (from five to seven) of cabinet ministers chosen from outside Parliament, and vary the devolution clauses.
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.
The President’s personal power will be increased in that there will not be a need for seeking advice from Cabinet when appointing the Prosecutor-General.
It increases the President’s personal power by allowing him to appoint and dismiss the Public Protector after consulting the Judicial Service Commission and Parliament’s Committee on Standing Rules and Orders. The public protector will thus be beholden to the President.
Prior to the passing of this particular Bill, the Constitution of Zimbabwe Amendment (No.1) Act was controversially passed in the Senate on 6 April. The Amendment (No.1) Bill had failed to muster two-thirds majority support in the Senate in 2017, hence making its passing a monumental nullity.
This latest development has given Chief Justice Luke Malaba a new lifeline to controversially extend his tenure beyond his looming retirement on 15 May 2021. Malaba turns 70 on 15 May but can now stay as chief justice beyond 2023 where he is expected to play a critical role in securing Mnangagwa another term.
Malaba’s new tenure would be entirely dependent on Mnangagwa’s whim, posing a fatal danger to judicial independence and democracy.
According to the 2013 constitution, the nomination and appointment process of judges must be conducted in a public and transparent manner. All judges are appointed by the President from a list of candidates provided by the Judicial Service Commission.
Mnangagwa’s power consolidation agenda has reached a new low. He has gotten rid of the running mate clause, which only comes to effect after 2023, according to the 2013 constitution.
Pre-emptively, Mnangagwa seeks to scrap the running mate clause so that he has absolute power to choose his deputies.
According to former Zimbabwean prime minister Arthur Mutambara, the purpose of the running mate clause is to avoid a situation where the country’s President (or any leader of a political party) appoints or allows the ascendancy of weak, mediocre, and disposable vice-presidents who are never meant for succession or assumption of the country’s presidency.
The choice of vice-presidents, therefore, becomes an election issue.
While this considerably weakens his coup partner Vice-President Constantino Chiwenga, it also clears the path for Mnangagwa to stay in power longer, having successfully eliminated ambitious elements within the rank and file of Zanu PF.
“At the centre of the aversion for the running mate clause, we find the inordinate lust for unbridled personal power, the objective of managing party factions to one’s selfish ends, the capacity to undermine rivals and the ambition to single-handedly control both party and national succession. An elected Vice-President Chiwenga will be a more assertive national leader and a formidable rival in the party to Mnangagwa,” Mutambara said in his analysis of the passed Bill.
Stephen Chan, a professor of world politics at the University of London’s School of Oriental and African Studies, said the constitutional amendments create an imperial President and undermine judicial independence.
“Basically, this is an increase in presidential power and an erosion of normal checks and balances such as the independent integrity of the judiciary,” Chan said.
Chan said Zimbabwe was trudging a ruinous path where the President is not subject to legislative checks and balances.
“The US president also has such power, but everything is subject to ratification in senate hearings – which is far from automatic and can be quite a strenuous process, so a check and balance is retained there. This seems not to be the case in Zimbabwe,” he added.
Political analyst Ibbo Mandaza described the move as tragic and predictable, considering Mnangagwa’s power retention moves since taking over from Mugabe in 2017.
“It is tragic and predictable. It is hinges on presidential powers. It looks like Mnangagwa and Zanu PF are still in the mode of imperial presidency,” Mandaza said.
“If we are to be reforming, we must do away with an executive presidency.”
“I say it is tragic because it highlights that the state in Zimbabwe is authoritarian with no capacity of reform,” Mandaza added.
Mandaza added that the support that Zanu-PF enjoys from the MDC-T was expected.
“It is pathetic, but also predictable, given what Douglas Mwonzora and his merry men and merry women have done. They are no longer an opposition. They are now a branch of Zanu PF,” he said, adding that challenging the amendments in court would be a waste of time as Zanu PF retains a majority.
According to a constitutional analysis by Kubatana.com: “The proposed legislation makes it unequivocally clear that the President would enjoy absolute authority, stating that the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section. The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.”
Analysts argue that this would set a wrong precedent and enable Mnangagwa to tamper with the presidential term limit and further entrench imperial rule in Zimbabwe.
As such, Zanu PF has abused its two-thirds majority for power, scoffing at millions of Zimbabweans who voted for the 2013 constitution.
“What Zanu PF has done in both the lower House and the Senate is abuse its two-thirds majority or supermajority. The fact that a party wins such a majority does not justify it to abuse that strength against the people or in negating the national interest,” Mutambara said.
It is also apparent that the passing of the Amendment (No.2) Bill is within the broader context of Zanu PF’s chicanery of maintaining a stranglehold on power beyond 2023.
“Amendment (No.2) is a classic case of unbridled weaponisation of law. As indicated earlier, it is part of the consolidation of political power and repurposing of state institutions towards this objective.
Amendment (No.2) is about authoritarian consolidation – an affront and negation of democracy,” Mutambara said.
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