The Sunday Mail
Lincoln Towindo
Senior Reporter
A raft of constitutional and legislative reforms to deepen civil liberties, individual rights, extend the women’s quota system and entrench political and electoral reforms, are expected to be gazetted next month under an omnibus Constitutional Amendment Bill, it has been learnt.
Once gazetted, the public will have the opportunity to critique the legislative proposals, which were compiled by an inter-ministerial committee set up in March this year, before they are tabled before Parliament for debate after three months.
Cabinet recently approved principles of the proposed constitutional amendments, which essentially give the Attorney-General’s Office leeway to begin drafting the envisaged provisions.
The legislative proposals include removing “contradictory and conflicting clauses” and refining provisions borrowed from other jurisdictions.
It is believed that some clauses are making it difficult to harmonise laws with the Constitution.
Government also intends to enact constitutional provisions that create the Office of the Public Protector and house the Office of the Chief Secretary to the President in the country’s supreme law.
Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi told The Sunday Mail that the Bill would be gazetted before Parliament adjourns for the festive season.
“The AG’s Office has started drafting and once they have finished, we will take it to Cabinet for approval and then send it to Parliament for gazetting,” said Minister Ziyambi.
“The Constitutional Amendment Bill has to be gazetted for three months. So we are hoping that by the time we go for Christmas, we should have sent it for gazetting so that by early April we would have introduced it for debate.”
Efficiency
The wisdom of creating the Public Protector’s Office, Minister Ziyambi said, was to provide a remedial avenue for individuals or entities who feel aggrieved or affected by the administrative inefficiencies of the Executive and or arms of the State.
While it might seem that such functions could be addressed by the Zimbabwe Human Rights Commission (ZHRC), the body is, however, “concentrating more on human rights issues”, he said.
Government, therefore, believes the Public Protector’s Office can ably protect the public against abuse of power and maladministration by the State and public institutions, and officers of such public institutions.
“So if one is aggrieved by the administrative conduct of the State, one is not getting much help from the human rights commission.
“We feel that, consistent with other countries like South Africa, who have both a human rights commission and a Public Protector, we should have a public protector too, to cater for that function,” Minister Ziyambi said.
Minister Ziyambi said ignoring the Office of the Chief Secretary in the Constitution was a glaring omission that had to be fixed.
Census & Elections
A memorandum detailing the amendments gleaned by this paper shows that the contemplated amendments include de-linking the national population census from the delimitation exercise (which sets electoral boundaries for elections) to prevent a possible administrative nightmare, especially in the 2023 harmonised elections.
The country’s next population census, which informs the administrative boundaries used to delimit constituencies, falls due in 2023, which coincides with the plebiscite.
The Zimbabwe Electoral Commission (Zec), which is constitutionally charged with running local elections, believes holding the two major events in the same calendar year, in addition to being financially onerous, might scupper the efficient running of the polls.
The memorandum reads: “Section 161 of the Constitution deals with delimitation of electoral boundaries after a population census.
“If, however, the delimitation of electoral boundaries is completed less than six months before polling day in a general election, the boundaries so delimited do not apply to that election
“The delimitation of electoral boundaries and conduct of a population census are two separate exercises.
“In drawing electoral boundaries, Zec relies on voter population and does not take into consideration minors and non-citizens as in a population census.
“Therefore, linking an electoral-boundaries delimitation exercise to a population census is skewed.”
Furthermore, the sweeping reforms will also establish metropolitan councils, which are a critical pillar to Government plans to devolve State power; remove the running-mates clause for Presidential elections (Section 92(2)); raising the retirement age for senior judges; and enabling the President to appoint the Prosecutor-General (Section 259(3)).
Notably, the running-mate clause — which was suspended for 10 years after a new Constitution was enacted in 2013 — is considered objectionable because it is peculiar to local politics and also out of sync “with the practice in other countries in the SADC region”.
Further, a proposal is being made to raise the retirement age for Supreme Court and Constitutional Court judges, including the Deputy Chief Justice and Chief Justice from 70 years to 75 years.
Sitting judges will also be exempted from public interviews on promotion.
Prosecutor-General
In addition, the provision where the Prosecutor-General is appointed by the President after consultation with the Judicial Service Commission (JSC) and removed in the same manner as a judge, is understood to have been imported from Kenya “in toto” by the framers of the 2013 Constitution.
But Government claims international best practice prescribes that the President has the prerogative of appointing the PG.
“It is, therefore, proposed that the Constitution be amended by empowering the President to appoint the Prosecutor-General, and further the procedure of removal of a judge should not apply to the removal of a PG.
“Instead, it is proposed that the President be empowered to set up a tribunal to inquire into the removal of a Prosecutor-General should the question of his removal arise,” adds the memorandum.
The proposed changes will also include stating grounds for removal of a PG from office.
Living Document
Co-chair of the Constitution Parliamentary Committee (Copac), which was key in drafting the 2013 Constitution Mr Paul Mangwana told The Sunday Mail that a “constitution is a living document and you find that in every constitution, there is a clause which talks about the amendments to the constitution.”
Attempts to get a comment from Mr Douglas Mwonzora, his co-chair, were fruitless by the time of going to print.
However, The 2013 Constitution, said Mr Mangwana, was a product of compromise between the two parties – Zanu-PF and MDC – which were heavily involved in its drafting.
“There were clauses that were there which we simply had to put there in order for us to get that Copac thing succeed.
“So one of the clauses which actually was resolved at the last minute, at the end of the whole process, was the clause to do with Presidential running-mates. The Zanu-PF position was not to go with running-mates, it was from the MDC and we had to compromise to have that Constitution approved. That is also the reason why that issue was supposed to start 10 years after the coming in of the new Constitution,” said Mr Mangwana, who is also Secretary of Legal Affairs to the Zanu-PF Politburo.
Views that found their way into the supreme law came from the people, political parties, technical experts and drafters, he added.
“The proposed amendments are sensible; we expect the MDC-Alliance to also support the changes because they are in the best interest of the country and smooth governance of our country,” he said.
Additional reporting by Norman Muchemwa
