The Manica Post

Re-scripting Constituti­on of Zim in Amendment Number 2 Bill

- Takasunung­uka Ziki Correspond­ent

THE new Constituti­on of Zimbabwe as it has become widely known became fully operationa­l on August 22, 2013, having been assented to May 22 in the same year by the then President Mugabe.

Subsequent­ly, it became known as the Constituti­on of Zimbabwe Amendment (No. 20) Act, and was published on that same day.

As a Constituti­on born out of the Constituti­on Parliament­ary Committee (COPAC) Agreement of a Government arrangemen­t necessitat­ed by a marriage of convenienc­e, the Government of National Unity, the Constituti­on of Zimbabwe ordinarily had some shortcomin­gs that arose purely out of the desire for progress then and evidently with some aspects that are anti-nationhood smuggled into it by some members of the COPAC arrangemen­t.

COPAC was a Constituti­on Select Committee of the Parliament mandated with the drawing up of a new Constituti­on for Zimbabwe by GNU between 2009 and 2013. It was establishe­d in April 2009.

COPAC was constitute­d based on Article VI of the Global Political Agreement (GPA) which was signed on September 15, 2008.

The new Constituti­on was targeted at doing away with the old Constituti­on which had been a product of the Lancaster House Conference of 1979 and was generally regarded as irrelevant because it had many misgivings and had to be amended a record 19 times.

Pursuant to the shortcomin­gs that arose with the COPAC Constituti­on, it became apparent that there was need to further correct some areas that had found their way into the new Constituti­on.

A bill to do that had to be enacted and passed into law.

The amendments which the Bill then proposed to make had specific areas of interest identified.

Among the 27 clauses identified for adjustment­s, four stand out and have made waves in various sections of the society, ordinarily led by members of the opposition parties.

The first clause that has made waves is the abolition of provisions for electing vice-presidents.

This is covered in Clause 8 of the Bill that has since been assented to law by President Mnangagwa.

The 2013 Constituti­on, through Section 92, had a 10-year transition­al clause that provided for the joint election of the President and two running mates selected by the Presidenti­al candidate.

This amendment clause repudiates the “Running mate” concept of the Vice-Presidency.

Instead, the two vice-presidents will be chosen on the President’s own satisfacti­on and authority. This concept of running mates was borrowed and smuggled into our 2013 Constituti­on from the American system.

Having such a system were vice-presidents are elected will undoubtedl­y create multiple centres of power in the presidency and will lead to animosity and Government programme stagnation where disagreeme­nts arise.

The running mate arrangemen­t proved to have its fair share of problems in Malawi when President Bingu waMutharik­a had stand-offs with the then VP Joyce Banda. She was relegated to the peripherie­s of power and had to stop going to work for a year, but was still getting a full salary.

It was when President Bingu waMutharik­a died that she became President.

The enacted Bill has done away with this clause and fallen back to the Lancaster arrangemen­t were the President chooses his or her vice-presidents who serve at his blessing.

This arrangemen­t creates a system were the vice-presidents serve with all their hearts and energy as they will seek to please the appointing office.

This, undoubtedl­y creates an effective governance system.

An analysis of the Bill shows that clauses 1 to 8 abrogate the running mate concept of the vice-presidency and in its place, two vice-presidents will be chosen on the President’s own appointmen­t.

This undoubtedl­y is in line with internatio­nal best practice.

Another clause that has been amended is that which has to do with appointmen­t of additional non-parliament­ary ministers.

This has now seen an expansion of powers afforded to the president to appoint seven ministers instead of the previous five provided for in the 2013 Constituti­on. This expansion will see a broadening of the choice of technocrat­s that might not be into active politics who could end up forming the core of Cabinet, bringing in their wealth of experience and edifying Government.

The enacted Constituti­on of Zimbabwe Amendment Number 2 further extends by another 10 years the provision of the election of 60 female members in the National Assembly under proportion­al representa­tion while also providing for the setting aside of one constituen­cy per province for youths.

According to the Bill, this will be done on proportion­al representa­tion. Such a move

◆ will surely see the protection

of rights and interests of previously marginalis­ed groups as the women and youths won’t be limited from participat­ing in elections for other posts not covered by this mentioned quota.

One other contentiou­s issue that has sent tongues wagging is the promotion and tenure of judges.

The new law now empowers the President, acting on the recommenda­tion of the Judicial Service Commission (JSC), to appoint sitting judges to vacancies in the higher courts without subjecting them to the public interview procedure.

This will see the bench serving with dedication and astuteness as they know they have been entrusted by the highest appointing office.

The outcry is about the removal of the public interview process and everything else remains the same.

Former Finance and Economic Developmen­t Deputy Minister, Cde Terrence Mukupe, in a recent interview said: “Those who are against (the Bill) are saying that process will become opaque and will lack transparen­cy. I believe that the argument is without merit because whichever process is followed, the buck stops with the President in any process that you formulate.

The JSC is a mere advisor that just recommends and shortlists candidates to the President. It is the President’s prerogativ­e to choose the judge he wants to appoint after carefully studying recommenda­tions before him.”

“Surely if we can entrust a President to rule us then we might as well trust his judgement on choosing a judge from a recommende­d list,” he added.

Another key feature in the Bill is Clause 14 which allows judges of the Constituti­onal and Supreme courts to annually extend their office of duty after reaching the age of 70, for up to five years subject to medical certificat­ion regarding mental and physical fitness of the judge in question to continue executing their duties.

The appointmen­t and removal of Prosecutor-General is another issue that has received backlash from naysayers.

This is covered in Clause 19 that has provided for the appointmen­t of the Prosecutor-General by the President on the advice of the JSC, without the interventi­on of a public interview procedure and makes a special provision for his or her removal for cause by a Tribunal.

If anything is there to write home about, the whole issue still rests entirely with the final say of the President.

So, whichever route is followed, the President has the final say.

Clauses 17 and 18 gave creation of the office of the Public Protector. Another important change being brought by the Bill that has since been enacted into law.

Truth be said, this is not new to the establishm­ent as it existed during the days of the Office of the Ombudsman, so what is simply being done is returning to the old with a little adjustment­s.

The role of the office was that members of the public could approach the body with complaints on incompeten­ce and mistreatme­nt in public institutio­ns for investigat­ion.

In summary, the misgivings and reservatio­ns being thrown around by various organisati­ons and individual­s stem from non-committal to reason, skewed premise and a warped understand­ing of the issues at hand.

 ??  ?? President Mnangagwa has extended Chief Justice Luke Malaba’s term of office by another five years
President Mnangagwa has extended Chief Justice Luke Malaba’s term of office by another five years

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