Bill Summary: Constitution of Zimbabwe Amendment (No. 2) Bill [H.B. 23, 2019]

On January 17, 2020, the Speaker gazetted the Constitution of Zimbabwe Amendment (No. 2) Bill [H.B. 23, 2019] (Bill).

Under Section 328 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (Constitution), a Constitutional Bill (i.e. a Bill that seeks to amend the Constitution) may not be presented in either the Senate or National Assembly unless the Speaker has given at least 90 days’ notice in the Gazette of the precise terms of the Bill. As such, April 17, 2020, is the earliest date on which the Constitutional Bill may be tabled in Parliament for its First Reading. In the interim, Parliament is required to invite and convene meetings for the public to express their views on the proposed Bill immediately after the Speaker has given notice of the Constitutional Bill (Section 328(4)).

To pass, the Bill will require at its last reading in the National Assembly and the Senate, the affirmative votes of two-thirds of the membership of each House. Section 328(5). Because the Bill does not seek to amend Chapter 4 or Chapter 16 of the Constitution, it will not be put to a referendum. Section 328(6).

Summary of proposed amendments

Proposed amendments on the same subject will be discussed under the same headings:

Clauses 2 to 8remove the constitutional provisions relating to the nomination of Vice-Presidents as running mates prior to an election and the taking over by the first Vice-President to finish off the President’s term if the President ceases to hold office before the end of his or her term. These provisions were due to become operational in 2023.  The proposed amendment retains the status quo where the President appoints Vice Presidents after being elected into office. In turn, clause 9 adopts the provisions in the Sixth Schedule as the operative provisions relating to the question of succession to the presidency, i.e. if the President ceases to hold office before the end of his or her term, the Vice-President who last acted as President takes over until the former President’s party nominates a successor.

Clause 10 – proposes to increase the number of Ministers (and deputy Ministers) who can be appointed from outside Parliament from five to seven.

Clause 12 – proposes to amend section 161 so as to remove the link between delimitation and population censuses.

Clause 11extends the provision for the party-list women members of the National Assembly by another two extra Parliaments (from two to four Parliaments), and makes provision for the party-list representation of youths in the National Assembly adding a further 10 youths to the National Assembly.

Clauses 13 – amends the constitutional provisions for the appointment of judges. The President, on the recommendation of the JSC, will be able to appoint (promote) a sitting judge of the Supreme Court or High Court to a higher court without the judge having to be interviewed and without the JSC having to interview other possible candidates for the post.

Clause 14 – amends the constitutional provisions judges’ tenure in office. On reaching 70 years of age, Judges and acting judges of the Constitutional Court and the Supreme Court, if they wish, may be allowed to continue in office for periods of one year at a time so long as the President, after consultation with the JSC, is satisfied that they are fit to continue. However, under section 328(7) of the Constitution, if a “term-limit provision”, i.e. a constitutional provision that limits the length of time a person may hold office, is amended so as to extend that time, the amendment will not apply to anyone who held the office before the amendment.

Clauses 15, 24, 26 and 27rename the Civil Service. Once the amendment is passed, the Civil Service will once again be referred to as the Public Service. The amendment clarifies that the Public Service is there to implement the policies of the Executive branch of the Government, to assist the Executive in the administration of the country and to deliver public services to the people. Currently, the Constitution gives the Civil Service responsibility for the administration of Zimbabwe.

Clause 16introduces provisions for the appointment and role of the Chief Secretary to the Office of the President and Cabinet and his or her deputies. It empowers the President to fix their terms of office even if the Chief Secretary is “the most senior member of the Public Service”. Conditions for other members of the Public Service are fixed by the Civil Service Commission (to be renamed the Public Service Commission).  

Clauses 17 and 18reintroduce the office of the Public Protector who will take over the function of protecting the public against abuse of power and maladministration by the State and public institutions and by officers of such institutions. The Public Protector will be appointed by the President subject to consultation with the JSC and the Committee on Standing Rules and Orders.

Clause 19amends provisions relating to the appointment of the Prosecutor-General. The President will still appoint the Prosecutor General on the advice of the JSC, but without the post being advertised and intervention of a public interview procedure. The JSC will nominate a suitable candidate (rather than come up with a list) who the President will appoint. Clause 19 makes special provision for the Prosecutor-General’s removal from office: it shall be for “serious” rather than “gross” misconduct and by way of a Tribunal appointed by the President at his own initiative. The President is not bound to follow the tribunal’s findings.

Clauses 20, 21, 22 and 25remove members of Parliament from the membership of provincial councils, merge the provisions relating to provincial and metropolitan councils by removing the special provisions relating to the latter (they will no longer be chaired by mayors, but be elected in terms of section 272 like provincial councils), and provide for the election of 10 of the members of Metropolitan Councils by a system of party-list proportional representation.

Clause 23removes reference to “foreign organizations or entities” from the provision entitling Parliament to approve or veto agreements concluded with non-State institutions, e.g. foreign banks. Parliament’s authority is limited to agreements concluded with “international organizations”, i.e. organizations whose members include independent States.

Source: Southern African Parliamentary Support Trust (SAPST)