The Sunday Mail
GAZETTING of the Constitutional Amendment (No. 2) Bill late last year has triggered a series of procedural events that will culminate in the second recalibration of the country’s supreme law since it came into effect in 2013.
The Bill seeks to introduce 27 amendments to the Constitution and could fundamentally alter the country’s constitutional jurisprudence.
The first amendment, three years ago, was to Section 180 which granted the President authority to appoint the Chief Justice, Deputy Chief Justice and Judge President of the High Court after consultations with the Judicial Service Commission (JSC).
Initially, Section 180 provided for the President to make these appointments from a list of three nominees selected by the JSC after public interviews.
Other minor amendments included a provision for the subordination of the Labour Court and the Administrative Court to the High Court.
Amending the Constitution is not a novel exercise in Zimbabwe, with the Lancaster House Constitution having been amended 19 times prior to the adoption of the 2013 document.
Like all constitutions, the 2013 Constitution was not perfect.
It was borne out of the crucible of political compromise between three political parties with diverse ideological dispositions.
Those who followed the constitution-making process — superintended over by the Joint Monitoring and Implementation Committee (JOMIC) — will admit that it was a protracted and rancorous give-and-take exercise where the parties sought to protect their turf and fashion the country’s constitutional order to their liking.
The end product was a generally tolerable document, albeit a flawed one.
Regardless, 95 percent of the 3,3 million Zimbabweans voted in favour of its adoption in the March 2013 referendum. Now, with the Government of National Unity (GNU) long forgotten and Zanu-PF firmly in control, an opportunity has arisen for the ruling party to tidy up and refashion it to its liking.
Controlling a two-thirds majority in both chambers, it is a given that the amendments will pass.
But amending the Constitution is an emotive issue in any jurisdiction, with the intentions of the drafters often being called to question. Zimbabwe’s case is no different.
From one side of the aisle, the proposed amendments represent a premature mutilation of the country’s supreme law for short-term political expedience. The President, they argue, wants to shore up his power base in the face of assumed power struggles within his ranks. In their view, constitutions should never be changed.
On the other side, the argument is that there are no hidden intentions, only the pressing need to tie-up loose ends which were overlooked during the acrimonious negotiations that characterised the constitution-making process.
Constitutions are “living” documents after all and should naturally change to align with changing socio-economic and political realities.
For instance, they argue, certain “alien” clauses with no relevance to Zimbabwe’s genetic construct such as the co-election of the President and his deputies need to be removed as they serve no logical purpose.
In fact, the Kenyan constitution is the only one in Africa that has a running mate clause.
To illustrate how, in its current form, our Constitution has some dysfunctional clauses, Section 121 (5) provides for disqualification of persons from contesting in a Senate by-election.
This provision is quite curious because Senators are elected through proportional representation and not through direct election, therefore, there can be no by-elections for the Senate.
Further, another provision which makes the full constitutional implementation problematic is the questionable coupling of the delimitation exercise and the national census.
The Constitution obligates the Zimbabwe Electoral Commission (ZEC) to draw up new electoral boundaries every 10 years, immediately after a national population census, which is due in 2022.
Zimbabwe goes for its harmonised elections in 2023 and this could leave the elections management body with inadequate time to carry out delimitation of constituencies ahead of the polls.
Failure by ZEC to draw up new boundaries, at least six months before the elections, will see the country going for elections using boundaries drawn up 15 years prior to the elections. This gives impetus to the urgency needed in dealing with decoupling of the two exercises.
Additionally, given Zimbabwe’s current fiscal position, Government may not be in a position to fund the two major national exercises within a space of 12 months.
While the ongoing public consultations on the Bill will give us a peek into what “ordinary” Zimbabweans think of the proposed changes, the discourse so far has been disappointing.
The analyses being offered so far by some of our prominent legal minds and civil society have been a rabidly partisan dissection of the amendments, pregnant with emotional overtones and prejudice.
We have seen little of dispassionate analyses laden with facts, historical context and references to international best practice.
In fact, the discourse has been characteristically Zimbabwean — partisan, emotional and retrogressive.
But in the midst of all the noise — nuance and context has been lost, leaving the average man all the more uninformed and confused. Should constitutions be amended? The answer is a resounding yes.
Take South Africa, for instance, its much-celebrated 1996 Constitution has been amended 17 times already, with the likelihood of another amendment looming later this year.
South African authorities are pushing for an amendment to Section 25 to include a provision clearly outlining the conditions under which expropriation of land without compensation can be effected.
In addition, Kenya’s 2010 constitution has already been amended 13 times with the latest amendment to entrench gender equality and the inclusion of historically marginalised persons being effected last year.
The United States of America’s constitution, the oldest written national charter in use today, has been amended 27 times, with the first 10 amendments being effected in 1791, two years after adoption of the original document.
The 11th amendment followed five years later, with the 1992 (27th amendment) being the last.
Proposed Amendments at a glance
- Amendment of Section 268 (1) to remove parliamentarians from sitting in provincial and metropolitan councils;
- Adding the words “and Metropolitan Councils” to the heading of Section 271;
- Remove provision allowing parliamentarians to sit in provincial council committees;
- Amending Section 124 (1) (b) to extend the women’s quota in Parliament indefinitely;
- Changing Section 121 (5) which provides for disqualification of person from contesting a Senate by-election because there are no by-elections for the Senate;
- Changing Section 158 (3) which provides for by-elections for local authorities within 90 days of a vacancy. By-elections for local authorities will now only be held when reasonably sufficient wards have become vacant;
- Changing Section 92 by removing the provision for the joint election of a President and two Vice Presidents;
- Section 161 will be changed to delink delimitation from the census;
- Extending the retirement age for senior judges;
- Change Section 180 (4) in order to remove the provision for public interviews for judges upon promotion;
- Introducing a clause providing for the establishment of the office of the Chief Secretary to the Office of the President and Cabinet;
- Changing of Section 259 (3) to remove the provision requiring the President to consult the Judicial Service Commission when appointing a Prosecutor-General;
- Empowering the President to set up a tribunal to inquire into the removal of a PG and also clearly stating the grounds for removal from office;
- Establishing the office of the Public Protector;
- Amending Section 199 (1) which arrogates the duty to administer Zimbabwe to the civil service. It is proposed that the section be amended by the deletion of the words “the administration of Zimbabwe” and substituted with “the administration of the Civil Service”.