Amending the Constitution – Part 1

Source: 20 January 2020Democracy, Legislation

The Constitution of Zimbabwe Amendment (No. 2) Bill was published in the Gazette on the 31st December 2019 and again on the 17th January 2020. If the Bill is passed by Parliament it will make a large number of wide-ranging amendments to the Constitution, many of them minor but some very important indeed: for example one of them will materially limit Parliament’s oversight of foreign agreements that impose fiscal obligations on Zimbabwe.

In this and subsequent Constitution Watches we shall analyse the Bill’s provisions, but before doing so we should deal with some preliminary questions.

Should We Amend the Constitution at All?

We shall consider this question again later, but at this stage we note that if the Bill is passed by Parliament we shall have amended the Constitution twice since it was enacted just over six years ago. Formulating the Constitution took five years of wide public consultation, political bargaining and entailed considerable public expense. Zimbabweans are proud of our new constitution and it was acclaimed internationally. We should not amend it now unless it is absolutely necessary to do so. The Constitution is the supreme law and must not be tinkered with.

Should We Increase the President’s Powers?

The President has wide powers under the Constitution as it is, and when exercising many of them he can use his personal discretion without having to accept the advice of his Cabinet. This is particularly so when he appoints people to posts and offices under the Constitution or any other law: see section 110(2)(d) and (6) of the Constitution. Amending the Constitution to give the President even more powers or to expand the role of the President’s office risks putting Zimbabwe on the road to a dictatorship.

When Can Parliament Consider the Bill?

In terms of section 328(3) of the Constitution, a constitutional Bill such as this one cannot be presented in Parliament “unless the Speaker has given at least ninety days’ notice in the Gazette of the precise terms of the Bill.”

As we noted at the beginning of this Constitution Watch, the Bill was published twice, once on the 31st December last year and again on the 17th January. The Gazette notice announcing the first publication was signed by the Clerk of Parliament, not the Speaker, and stated that the Bill was being published in terms of the National Assembly’s Standing Order 134(1), which does not deal with the publication of constitutional Bills. Neither of these defects matter legally because it can be assumed that the Speaker instructed the Clerk to give notice on his behalf, and the Bill was published substantially in accordance with section 328(3) of the Constitution even if that section was not specifically cited. Nonetheless, when the Bill was published again the Gazette notice was signed by the Speaker and mentioned section 328(3), so the second publication was obviously intended to remove any doubt about whether the Bill has been properly published.

If we take the first publication to have been valid, the 90-day notice period will extend to the end of March, after which Parliament can consider the Bill. If we take the second publication to be the valid one, then the 90-day notice period will end on the 16th April.

Contents of the Bill

The amendments which the Bill proposes to make can be grouped under the following main headings:

  1. Limitation of Parliament’s power to approve international treaties
  2. Abolition of provisions for electing Vice-Presidents
  3. Extension of Party-list Members of the National Assembly
  4. Delimitation of electoral boundaries
  5. Appointment of additional non-parliamentary Ministers
  6. Alteration of membership of provincial and metropolitan councils
  7. Promotion and tenure of Judges
  8. Appointment and removal of Prosecutor-General
  9. Change of name of Civil Service
  10. Chief Secretary to the President and Cabinet
  11. Creation of office Public Protector and transfer of functions from Zimbabwe Human Rights Commission

In this and in subsequent Constitution Watches we shall consider each of these topics in turn.

1. Limitation of Parliament’s Power to Approve International Treaties

Section 327(2) of the Constitution states that international treaties do not bind Zimbabwe until they have been approved by Parliament. The term “international treaty” is defined to cover conventions, treaties or agreements with foreign States or governments or with “international organisations”, i.e. organisations whose membership includes independent States [see the definition in section 327(1)]. The effect of section 327(2), therefore, is that if the President concludes a treaty with, say, Botswana or Zambia, the treaty will not bind Zimbabwe until Parliament has approved it. The same applies to treaties concluded with organisations such as the International Monetary Fund or the World Bank because independent States are members of those organisations.

Section 327(3) of the Constitution goes further and states that agreements which are concluded with “foreign organisations or entities” and which impose fiscal obligations on Zimbabwe do not bind Zimbabwe until they have been approved by Parliament. So if the President or the Minister of Finance concludes a loan agreement with, say, the African Export-Import Bank or a Chinese bank or any other organisation which does not have a foreign State as a member, that agreement must be approved by Parliament because it imposes a fiscal obligation on Zimbabwe, i.e. the obligation to repay the loan. And it must be remembered that the power to approve such agreements includes a power to refuse to approve them, so section 327(3) gives Parliament a right to veto the agreements.

Clause 23 of the Bill proposes to alter section 327(3) of the Constitution so that it will apply only to agreements entered into with “international organisations”, i.e. organisations such as the IMF and the World Bank whose members include foreign States. Section 327(3) will no longer apply to agreements with foreign banks or similar non-State institutions even if the agreements impose fiscal obligations on Zimbabwe. Hence Parliament will no longer have the constitutional power to approve loan agreements with such non-State institutions.

Comment

Parliament’s role in monitoring and overseeing expenditure by the State, enshrined in section 299 of the Constitution, is fundamental to good governance, one of the founding values on which the Constitution is based. A vital part of that role is the power under section 327(3) of the Constitution to veto loan agreements which Parliament considers will impose too great a burden on the country. Clause 23 of the Bill will emasculate this power.

Over the past few decades the Government has entered into innumerable loan agreements with foreign governments, banks and other entities, paying little or no regard to how the loans can be repaid. As a result Zimbabwe’s foreign debt is enormous, crippling the country’s development.

That is perhaps the main reason why section 327 of the Constitution was enacted: to curb Government’s profligacy by giving Parliament the right to approve or to veto agreements that might increase Zimbabwe’s foreign debt.

To amend section 327 so as to remove or reduce Parliament’s powers will be utterly pernicious and will encourage a return to reckless spending by the Government, mortgaging the birthright of future generations.

2. Abolition of Provisions for Electing Vice-Presidents

There is provision in Chapter 5 of the Constitution for presidential candidates to nominate two Vice-Presidential candidates, and for all the candidates to be elected together in the same election. In the event of the President ceasing to hold office before the end of his or her term, the first Vice-President takes over as President for the remainder of the President’s term.

These provisions were due to come into operation in 2023 [see para 14 of the Sixth Schedule to the Constitution] In the meantime the system that was in force under the previous constitution continues, whereby only the President is elected and, after his or her election, he appoints up to two Vice-Presidents who hold office at the President’s pleasure ‒ i.e. the President can dismiss them at any time.

The Bill proposes to make the current system permanent by replacing the provisions for elected Vice-Presidents with new ones under which:

  • Only the President will be elected
  • As soon as the President assumes office after an election he or she will appoint up to two Vice-Presidents
  • Vice-Presidents will hold office until the President removes them from office [which he will presumably be able to do at any time, though the Bill does not say so specifically]
  • In the event of the President dying, resigning or otherwise ceasing to hold office, the Vice-President who last acted as President will take over until the former President’s party nominates a successor.

Comment

This proposed amendment will have the effect of increasing the President’s personal political power at the expense of his party.

The system of elected Vice-Presidents was inserted in the Constitution to give some certainty to presidential succession, in contrast to what happened under former President Mugabe, who avoided nominating a successor and used the succession question to play party factions off against each other. If we revert to the previous system whereby Vice-Presidents are nominated by the President and hold office at his pleasure, we risk repeating the factionalism that prevailed under Mr Mugabe.

There is also the matter of legitimacy. Vice-Presidents who take over from a President who dies or resigns will have a degree of democratic legitimacy if they were elected as vice-presidential running mates of the President. Voters who voted for the President can be assumed to have accepted them as potential successors of the President. A Vice-President who has merely been appointed by the President will not enjoy such legitimacy.

There is a further, perhaps unintended, consequence arising from the Bill’s amendment of section 91(2) of the Constitution. That provision states that a person who has served two terms as President is disqualified from election for a further term as President and from election as Vice-President. The provision was intended to prevent a President who has already served two terms from securing the election of a pliable friend as President and continuing to govern the country as the friend’s Vice-President ‒ in other words, to do as President Putin of Russia did in 2008 when he exchanged roles with his Prime Minister.

The amendment of section 91(2) will prevent a person from being elected as President after serving two terms, but it will not prevent him or her from being appointed Vice-President. It is most unlikely but, if it happened in Russia, it might just happen here.

Source: Veritas

See also Part 2, Part 3, Part 4, Part 5