Government Urged to Withdraw Constitutional Amendment Bill No.2

The Election Resource Centre (ERC) encourages the government of Zimbabwe to withdraw and refer for further consultations efforts to amend the Constitution through Constitutional Amendment Bill No. 2 which is before Parliament. The Bill, if passed as is, poses a threat to national cohesion given the polarising effects of some of the proposals being explored. From an election perspective, twenty out of the twenty-seven clauses in the Bill have the potential to affect the credibility of the 2023 elections. Given the contentious nature of elections in Zimbabwe, Government of Zimbabwe is best advised to withdraw the proposed bill, refer it to multiple platforms in existence for purposes of inclusive consultation to build a national consensus on whether amending the constitution would be the best route forward and if it is, whether the proposed content best addresses current national challenges.

ERC notes that Clauses 2 to 8 of the Bill removes provisions for Vice-Presidents to be elected together with the President and replaces them with provisions for the President to appoint them. Such a change takes away the power of the citizens to elect Vice-Presidents. The proposed change also means that in the event of a President being incapacitated while in office, his successor may be appointed by the incumbent and the political party represented by the former president and not the people. The proposed changes are in potential conflict with the principle of democracy which dictates that all Executive authority is derived from the people.

Under clause 10 of the bill, there is a proposal to increase the number of additional ministers appointed by the President outside of Parliament from the current five to seven. From an election viewpoint, such an increase in appointments by the president results in forty-one percent of the Executive being accountable to the appointing authority. Direct election of the Executive, as opposed to appointment, contributes to more representative governance as there is allegiance to the voter that is created.

Through clause 11 the Amendment Bill seeks to extend the provision for the women’s quota in the National Assembly by another two Parliaments (from 2 to 4 Parliaments). The proposed changes fall short of equal representation as envisioned in Section 17 of the Constitution. From all assessments done of election results, the quota system has not achieved the desired equal representation of men and women in public offices. The Constitution is too important to be amended to extend provisions which have proven ineffective in the past.

Clause 12 of the Amendment Bill proposes a decoupling ZEC’s delimitation function from the population census held every 10 years. While it is agreed that it was necessary to link delimitation to a census in the first place since delimitation is on the basis of registered voters and not population, it is equally not necessary to delink the two processes constitutionally when the same sought after effect can be achieved through Amending Section 12 of the Census and Statistics Act.

Clause 13 and 14 on the appointment of judges and their tenure of office seeks to give the President appointing authority of sitting Judges for the Supreme Court or High Court. The proposed changes will tilt the electoral playing field in favour of a sitting president who may be a candidate in that he or she will decide who determines any challenge to his or her election in court should the election be disputed.

The introduction of the Public Protector, in Clause 17 and 18 of the Amendment Bill, who will take over some of the functions of the Zimbabwe Human Rights Commission may introduce bias in the oversight of public maladministration in favour of the state. It is common cause that cases of human rights violations tend to increase where there is political competition and an appointed authority with the mandate to address such violations may have reduced objectivity should their appointment be at the discretion of one of the candidates in the election as well as citizen complaints against state agents during elections.

The removal of public interviews during the appointment process of the Prosecutor General in Clause 19 makes the office beholden to the appointing authority who may be an interested party in an election. According to Section 133 of the Electoral Act, Special Investigative Committees are set up to conduct investigations in relation to election-related violations. These committees include the office of the Prosecutor General who must prosecute, once investigations are concluded by the police. A Prosecutor General appointed by a candidate may be biased towards the appointing authority thereby tilting the prosecuting decisions against anyone contesting the appointing authority.

In conclusion, given the electoral implications of amending the Constitution as proposed in the Constitutional Amendment Bill No. 2, broad-based consensus must be the basis of moving forward. Decisions on how future elections will be conducted cannot be left to the party with a majority in Parliament or control of the Executive. If anything, the ruling party has everything to gain from being consultative on decisions that affect the future of the country.

Source: Election Resource Centre (ERC)

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