Constitutional amendments: Implications for democracy

ON April 20 2021, Zimbabwe’s House of Assembly (the Lower Chamber) passed the Constitution of Zimbabwe Amendment (No 2) Bill by a two-thirds majority vote of 191 to 22 Members of Parliament.

On May 4 2021, this legislation went through its Third and Final Reading in the Senate (the Upper Chamber) where it was passed by a two-thirds majority poll of 65 to 10 senators.

The Bill now awaits the President’s signature, after which it becomes the Constitution of Zimbabwe Amendment (No 2) Act, thus effectively changing Zimbabwe’s supreme law, which was adopted by 94,5% of 3,3 million people who voted in a referendum on March 16 and 17 2013.

In the main, this amendment seeks to change the retirement age for judges, expunge the public interview process for judges, remove the presidential running mate clause, extend the women’s quota, introduce a youth quota, increase the number (from five to seven) of Cabinet ministers chosen from outside Parliament, and vary the devolution clauses.

Prior to all this was the Constitution of Zimbabwe Amendment (No 1) Act which was belatedly (after the Bill had lapsed by operation of law) and hence controversially passed in the Senate on April 6 2021.

The main effect of this Act is to change the constitutional procedure for the appointment of the chief justice, the deputy chief justice and the judge president of the High Court.

These key appointments will now be made by the President after consultation with the Judicial Service Commission, with the explicit exclusion of public nominations and public interviews which were originally provided for in the national charter adopted by the generality of the people of Zimbabwe in March 2013.

Before we delve into the analysis of details of the Constitution of Zimbabwe Amendment No 2 and assess the legislation’s implications for democracy and constitutionalism, we must revisit our understanding of these two loosely used and never properly defined terms.

What is democracy

Democracy is a form of government in which the people have the unfettered authority to choose those that govern them and legislate on their behalf.

Former US President Abraham Lincoln taught us that democracy is a government of the people, by the people, for the people.

We can also say democracy is the summation of the experiences of struggle by the generality of the people as they endeavour to improve their material conditions.

Now, given this understanding of democratic values, ethos and principles, here are the questions we have to address:

Does Amendment No 2 advance these aspirations and ambitions?

Are the people at the centre of this Amendment No 2?

Does it promote a government of the people, by the people, for the people?

How is the social and economic welfare of Zimbabweans improved by Amendment No 2?

How does the amendment improve our economic fortunes as citizens?

Do the amendments enhance democracy, or they consolidate authoritarian rule?

Constitutionalism

There are two legal constructs of interest to our discussion of the Constitution of Zimbabwe Amendment No 2: constitutionalism and constitutionality.

Of course, our topic is focused on the former, and we will concentrate on that.

However, the amendment also has dire implications for the latter.

Constitutionality refers to the quality of being in accordance with the Constitution.

Is Amendment No 2 in accordance with the Constitution? We must answer this question.

There are three distinct but related aspects to constitutionalism that we must clearly understand as we explore the implication of Amendment No 2.

Firstly, constitutionalism is the tradition, culture and behaviour of respecting the Constitution.

It is a value system developed and nurtured over time through social mobilisation, civic education and exemplary leadership.

Secondly, constitutionalism is a governance doctrine that emphasises limited government or limited power of the State. It is the opposite of arbitrary powers.

Constitutionalism recognises the need for a government with powers but at the same time insists that limitations be placed on those powers.

Finally, constitutionalism is the unequivocal commitment to the Declaration of Inalienable Rights (Bill of Rights) and strict adherence to functional separation of powers of the Executive, Legislature and Judiciary.

Now, given these diktats and imperatives of constitutionalism, here are the questions we have to address:

Is Amendment No 2 respectful of the supreme law?

Is it in compliance and accordance with Constitution?

Is it within the spirit of the Constitution?

Is it in breach of the Constitution? Is Amendment No 2 promotive of limited government?

Does it enhance people’s participation in the exercise of the powers of the State?

Is Amendment No 2 promotive of the functional separation of powers?

Amendment No 2: Analysis of the gory details

With definitional and conceptual matters out of the way, let us get into the details and import of Amendment No 2.

As stated earlier, this legislation was passed in the Lower House on April 20 2021 and in the Upper House on May 4, 2021.

It was preceded by the Constitution of Zimbabwe Amendment (No 1) Act which was passed illegally in the Senate on April 6 2021.

Why and how?

The Amendment (No 1) Bill failed to get two-thirds majority support in the Senate in 2017. Thereafter, the legislation lapsed by operation of law when the 8th Parliament of Zimbabwe was dissolved before the July 2018 general elections.

Hence, the Constitution of Zimbabwe Amendment (No 1) Act was passed illegally.

It is an unconstitutional law and is currently being challenged in the courts for violating section 147.

The Senate passed a non-existent Bill, thus creating a legal nullity.

What a travesty of common sense!