Amending the Constitution – Part 4 – Constitution Watch 4 / 2020

Introduction

In Constitution Watches 1, 2 and 3 of 2020 we analysed the provisions of the Constitution of Zimbabwe Amendment (No. 2) Bill. In this Constitution Watch we continue our analysis, looking at the remaining provisions, i.e. those dealing with the appointment and removal of the Prosecutor-General, those which will alter of the name of the Civil Service, those which will establish the office of Chief Secretary of the President and Cabinet as a constitutional office, and those which will re-establish the office of Public Protector.

Appointment and Removal of Prosecutor-General

Section 259 of the Constitution establishes the office of Prosecutor-General, who heads the National Prosecuting Authority. He or she is appointed by the President on the advice of the Judicial Service Commission [JSC] following the current procedure for the appointment of a judge [section 259(3)] and he or she can be removed from office in the same way that a judge can be removed [section 259(7)].

Clause 19 of the Constitution Amendment Bill proposes to alter section 259 so that:

• The procedure for the appointment of a judge will not be followed when appointing a Prosecutor-General. Although the President will have to act on the advice of the JSC when appointing a Prosecutor-General, the post will not have to be advertised, public interviews of applicants will not have to be conducted, and the JSC will not prepare a list of candidates for the President to choose from. Instead the JSC will nominate a suitable candidate and the President will appoint him or her.
• The grounds and procedure for dismissing a Prosecutor-General will be changed so that:
• The Prosecutor-General may be dismissed for “serious misconduct” rather than “gross misconduct” as at present [it is not clear what the difference is].
• The President will be entitled on his own initiative to appoint a tribunal to investigate the removal of a Prosecutor-General; at present he can do so only on the recommendation of the JSC.
• The tribunal will not include members nominated by the Law Society.
• The President will not be obliged to act on the recommendation of the tribunal when deciding whether or not to dismiss the Prosecutor-General. He will be able to do so even if the tribunal finds there are no grounds for dismissal.

Comment

Clearly the President will have much greater personal power to appoint and dismiss a Prosecutor-General, and, to the extent that the President’s powers are enhanced, the Prosecutor-General’s independence will be diminished.

The constitution-makers were at pains to ensure the independence and impartiality of the Prosecutor-General and all his or her subordinates ‒ see sections 260 and 261 of the Constitution.

The provisions making the procedures for appointing and dismissing a Prosecutor-General the same as those for judges help strengthen the independence of the office and so make it more likely that the Prosecutor-General will be impartial and non-partisan. Weakening those provisions may well bring us back to the days of politically motivated prosecutions.

Change of Name of Civil Service

Clause 15 of the Bill proposes to change the name of the Civil Service to “Public Service”; it will also change the description of the Service in section 199(1) of the Constitution from:

“(1) There is a single Civil Service, which is responsible for the administration of Zimbabwe.”

to:

“(1) There is a single Public Service to implement the policies of the Executive branch of the Government, to assist it in the administration of Zimbabwe and to deliver public services to the people.”

Comment

The new section 199(1) will emphasise that civil servants are subordinate to the Executive branch of government. Civil servants have always been subordinate to their Ministers, in the sense that they are supposed to carry out all lawful instructions their Ministers may give them. They must give their Ministers honest, fair and accurate advice when called upon, and if a statute gives a civil servant a personal discretion to carry out a particular function then he or she must exercise that discretion independently, honestly and fairly. But otherwise civil servants must implement the lawful policies of the Government. The new section 199(1) will not therefore change the law in relation to civil servants. But is it necessary to amend the Constitution to emphasise their subordination?

The name change, from Civil Service to Public Service, is of no legal consequence but it will bring back the confusion between public servants and public officers that existed before the present Constitution came into force. A judge will not be a public servant but is and will be a public officer. A permanent secretary will be both a public servant and a public officer. A police constable will not be a public servant but is and will be a public officer. The Chief Secretary to the President and Cabinet (see below) will be a public officer and a public servant but the Public Protector (again see below) will not be a public servant though he or she will be a public officer. Confused? You have every reason to be.

Chief Secretary to President and Cabinet

The Bill proposes to insert a new section 204A into the Constitution establishing the office of Chief Secretary to the Office of the President and Cabinet, together with an unstated number of deputy Chief Secretaries. The Chief Secretary is to be “the most senior member of the Public Service” and other permanent secretaries will report to him or her “on any matter affecting them as a class” [whatever that means]. The Chief Secretary’s salary and other conditions of service will be fixed by the President, unlike other permanent secretaries whose conditions are fixed by the Civil Service Commission.

Comment

There seems no good reason to make the office of Chief Secretary a constitutional one. The amendment does not say what, if anything, the Chief Secretary and his or her deputies are supposed to do.

More importantly, perhaps, the terms of office of the Chief Secretary and his or her deputies are to be fixed by the President so in this respect they will differ from permanent secretaries, who are appointed for five-year terms renewable once [section 205 of the Constitution]. The amendment does not say whether or on what grounds the President will be able to remove the Chief Secretary or a deputy from office, so they may become appointees for life enjoying salaries fixed by the President without regard to the Civil Service Commission or even the Ministry of Finance.

Creation of Office of Public Protector

Clause 18 of the Bill will create the offices of Public Protector and Deputy Public Protector, both of whom will be appointed by the President after consultation with [not necessarily with agreement of] the JSC and Parliament’s Committee on Standing Rules and Orders.

The Public Protector will be responsible for investigating allegations that public officers and authorities have exercised their functions unjustly, where there is no remedy by way of court proceedings reasonably available to the persons who have suffered injustice. The public officers and authorities who may be investigated by the Public Protector will be members of “any Ministry or department” and “such other persons and authorities as may be prescribed by or under an Act of Parliament”.

Some functions of the Zimbabwe Human Rights Commission [ZHRC] are transferred to the Public Protector: specifically, the investigation and remedying of conduct that violates human rights and freedoms, where the conduct is committed by “an organ of the State or a public institution or any officer of that organ or institution”. An Act of Parliament may exempt officers and authorities from investigation by the Public Protector.

Comment

The Lancaster House Constitution created the office of Ombudsman (later renamed Public Protector) but the present Constitution abolished the office in 2013, repealed the Public Protector Act and transferred the Public Protector’s unfinished cases to the ZHRC [para 16 of the Sixth Schedule to the Constitution]. This amendment will reverse all that, and there seems no good reason why it should do so. The people who held the office of Ombudsman/Public Protector before 2013 did not distinguish themselves and the office afforded the public little protection against misgovernment. In 2013 the ZHRC had to take over the Public Protector’s backlog of hundreds of cases that had not been dealt with; it trained its officials to deal with them and has finalised them and current cases with commendable efficiency. The ZHRC, incidentally, was not consulted about the proposed constitutional amendment.

The extent of the jurisdiction to be conferred on the Public Protector is not clearly defined. As already stated, his or her jurisdiction is limited to investigating the conduct of “any Ministry or department or any member of such Ministry or department”; the power to investigate anyone else will have to be conferred through an Act of Parliament”. It seems therefore that the Public Protector will be able to investigate the conduct of civil servants and possibly their Ministers, but not the conduct of members of the Defence Forces or the Police Force unless they are prescribed under an Act of Parliament.

Furthermore, the relationship between the new office and the Zimbabwe Human Rights Commission is not clear-cut. Although some of the Commission’s investigatory powers are transferred to the Public Protector, the Commission will be able to take over investigations “where it determines that the dominant question in issue involves a matter pertinent to its function”. To divide responsibilities between the Commission and the Public Protector in such a vague way almost encourages jurisdictional disputes and delays.

Finally, appointments to the office of Public Protector will essentially be in the gift of the President: he will merely have to consult the JSC and the Committee on Standing Rules and Orders before making such appointments and will not have to get their consent. The same will apply, presumably, to dismissing the Protector so he or she will hold office at the President’s pleasure.

The establishment of this office, like the office of Chief Secretary to the President and Cabinet, will represent another extension of the President’s personal power.

(Analysis of the Constitution Amendment Bill will be continued in Part 5)

Source: Veritas