Constitutional Amendment No. 2 Bill: Parliament’s Justice, Legal and Parliamentary Affairs Committee Report Highlights

Remember those public hearings about the Constitutional Amendment No. 2 Bill? They went ahead last month, despite concerns around Covid-19, physical distancing and public gatherings. Last week, the Chairperson of Parliament’s Justice, Legal and Parliamentary Affairs Committee, Misheck Mataranyika presented feedback from these consultations, and the Committee’s recommendations regarding the proposed constitutional amendments.

You can find the Committee’s report if you read the Hansard for 9 July, but it hasn’t been published as its own document on Parliament’s website (yet).

What did people say about the amendment Bill? Only that it: “Contributes to political instability, disadvantages women, disempowers youth, undermines the independence of the judiciary, reduces checks and balances, corrodes judicial independence, encroaches on the competency of the Zimbabwe Human Rights Commission, threatens prosecutorial independence, defeats the principle of separation of powers, public accountability and good governance. . .” Yes, these are just some of the phrases the public used about the amendment Bill.

But despite overwhelming public sentiment against the Bill, and even though the Committee’s report itself outlines the many concerns from the public about the amendments, the Committee recommends Parliament make a few changes and then adopt the amendments.

Here’s a summary of the report:

Vice Presidents
The proposed constitutional amendments would see Vice Presidents appointed by the President after s/he is elected, rather than being nominated and standing jointly in the election. The Committee noted that “the majority of the submissions received pointed towards a desire to maintain the system of running mates.” People said the running mates system would create certainty in Presidential succession and avoid instability and a possible power vacuum.

“Technocrats” in Cabinet
Another proposed amendment would increase the number of Ministers the President can appoint from outside Parliament from five to seven. The report said “some were of the view that the status quo is adequate as far as the appointment of Ministers and Deputy Ministers is concerned. They opined that the increase of the number of Ministers from five to seven appears to be only cosmetic and not driven by an inclination towards improving governance in Zimbabwe.”

Youth and Women’s Quotas
The Committee said the majority of submissions rejected the extension of the women’s quota. “The majority of members of the public felt that there is need to implement Sections 17, 56 and 80 of the Constitution of Zimbabwe. It was further argued that the proportional representation system had served to disadvantage women; the women have no constituencies. Other submissions noted that there should be 105 constituencies reserved for women where they compete against themselves.” Some similar arguments were made regarding the proposed youth quota. “Those against the youth quota noted that this system disempowers the youth; the youth should be voted for into Parliament.”

President Appointing Judges without Public Interviews
Noting the feedback about this clause, the Committee said: “Some members of the public were of the opinion that the manner of appointment of Judges is central to the values of democracy, the idea of separation of powers, checks and balances in a democracy and an efficient and independent judiciary to sustain the separation of powers. They submitted that the proposed amendment to promote Judges of the High Court and the Supreme Court to a higher court by the President without subjecting them to public interviews as provided by the current constitutional framework could undermine the independence of the Judiciary. It was submitted that promotion of the Judges of the High Court and the Supreme Court in procedures not open to public scrutiny could reverse the gains that were made by the current constitutional framework.”

Extending Judges’ Retirement Age
One proposed amendment would enable Supreme Court and Constitutional Court judges to extend their retirement age from 70 to 75, subject to an annual medical review and approval by the President. Concerns about this clause, according to the report, included: “Some were of the view that the proposed amendment should be rejected on the basis that, although the President extends the term of office after consultation with the JSC, the President does not appear to be bound by the recommendations of the JSC and this may lead to the corrosion of judicial independence.”

Civil Service Name Change
One of the proposed amendments would change the title “Civil Service” to “Public Service.” Confused as to why this would even matter? Members of the public don’t know why either. “The public noted that rather than changing the name, there is need to initiate and implement Civil Service reforms that will ameliorate the working conditions of the civil servants.”

Creating the Office of the Public Protector
Another amendment would see the creation of the Office of Public Protector to investigate maladministration in public institutions. But according to the Committee, “Some were against the amendment as it allows the Public Protector to encroach on the competency of the Zimbabwe Human Rights Commission and amounts to a duplication of roles between the two independent institutions. Their recommendation was not to create the office at this juncture, given limited resources but to strengthen the already existing Chapter 12 Independent Commissions.”

No Public Interviews for Prosecutor General
One proposed amendment would remove the requirement for public interviews for the Prosecutor General. On this amendment, the Committee noted “Some members of the public welcomed the provision, however others were of the view that the current appointment process promotes accountability and transparency. The process ensures that there is scrutiny, and increases public confidence in the office of the Prosecutor-General who is appointed based on merit. Removal of the public process as contemplated by the amendment was viewed as a threat to Prosecutorial Independence.”

Removing Parliamentary Oversight on Agreements with Foreign Entities
Currently, Parliament has oversight over financial agreements made by the President with foreign entities (like loans). The amendments propose narrowing this to apply only to international organisations. According to the Committee, “Some members of the public submitted that the removal of the term ‘foreign organisations or entities’ seeks to limit the types of agreements or treaties that must be approved by Parliament to become part of Zimbabwean law. The role of Parliament is to play an oversight role over Executive functions and removing agreements with foreign organisations or entities beyond the scrutiny of Parliament, defeats the principle of separation of powers, public accountability and good governance.”

Highlighted Recommendations from the Committee

  • The major issue that the public expressed was the need to urgently align laws and full implementation of the Constitution rather than rush to amend the Constitution. The Committee urges the Executive to prioritise the realignment of laws to the Constitution and its full implementation.
  • The Committee recommends continuation with the women’s quota system for another ten years. Meanwhile, Government must take robust measures to ensure that the Constitutional provisions of 50-50 are implemented.
  • Regarding the issue of appointment of Prosecutor General, the Committee recommends that he/she should go through public interviews.
  • On the promotion of Judges by the President, the Committee recommends that their promotion may be done without public interviews but must be on the advice of the JSC.
  • The Committee does not recommend the creation of the Office of the Public Protector but instead urges the State to strengthen the already existing Chapter 12 Independent Commissions.
  • On Parliamentary oversight, the Committee recommends that there is need to maintain and strengthen the system of checks and balances and thus all agreements that impose fiscal obligations on the State must get Parliament approval as a way of enhancing accountability.
  • Except for certain highlighted areas, the Committee recommends the amendments be adopted as presented.

Read the full report in the 9 July Hansard here

Source: Kubatana