Analysis of the Constitution Amendment Bill : Part 2

In the first part of our analysis of the Constitution of Zimbabwe Amendment (No 3) Bill [link] we looked at the amendments the Bill proposes to make to the way in which the President is elected, the extension of the presidential term and the life of Parliament, and the appointment of Senators.  In this, the second part, we shall examine the remaining provisions of the Bill.

Elections

The Bill proposes to strip the ZEC of some of its functions namely: registering voters, maintaining voters rolls and delimiting electoral boundaries.

Voter registration and maintenance of voters rolls

Clause 2 of the Bill will confer on the Registrar-General the functions of registering voters and compiling and maintaining voters rolls.

Comments:  This makes some administrative sense.  The Registrar-General keeps registers of births and deaths, and is in a better position than ZEC to register citizens as voters. On the other hand, voters rolls were not properly maintained between 1980 and 2013, when the Registrar-General was responsible for them, and there is a fear that they will not be maintained any better now.  The Registrar-General is a civil servant and subject to political control and manipulation by the President through his Ministers, while ZEC is at least notionally independent.

Delimitation of Electoral Boundaries

A new Commission – the Zimbabwe Electoral Delimitation Commission – will be established to fix and alter the boundaries of constituencies and wards in accordance with Chapter 7 of the Constitution (clauses 11 to 13 of the Bill).  It will be appointed whenever delimitations have to be done – which means every 10 years in terms of section 161 of the Constitution.  All the members of the Commission will be appointed by the President, the chairperson after consultation with the Judicial Service Commission.

Comments:  How well the new commission will function remains to be seen, but it can hardly make a worse job of delimiting electoral boundaries than the ZEC, whose 2023 delimitation was full of inaccuracies and violated the Constitution and the Electoral Act.

It should be noted however that all the members of the new commission will hold office at the President’s pleasure, which means they can be dismissed and replaced whenever the President pleases (see section 320(2) of the Constitution).  Hence the commission will not be independent.  ZEC, as we have said, is at least notionally independent.

Jurisdiction of the Constitutional Court

At present the Constitutional Court decides only constitutional matters, i.e. cases involving the interpretation and enforcement of the Constitution.  Its decisions on those matters bind all other courts.  Clause 14 of the Bill proposes to extend the court’s jurisdiction to cover:

“any other matter, if the Constitutional Court grants leave to appeal, on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by the Court.”

Comment:  This proposal is badly conceived and ineptly drafted.  It will give the Court power, in effect, to determine its own jurisdiction – a dangerous thing to do, because judges are not always above power-grabbing.  The Supreme Court is declared by section 169 of the Constitution to be the final court of appeal for Zimbabwe, but if the Constitutional Court encroaches on its jurisdiction, the Supreme Court’s status will be placed in doubt.  Furthermore, section 167(1) of the Constitution states that the Constitutional Court’s decisions in constitutional matters bind all other courts, including the Supreme Court.  But what of the Constitutional Court’s decisions in these new “other matters” referred to in the amendment?  Will they bind other courts?  The amendment does not say.

Appointment of Judges

Clause 15 of the Bill will amend the constitutional requirements for appointing judges so that all judges, from the Chief Justice downwards, will be appointed by the President after consultation with the Judicial Service Commission.  There will be no calling on the public for nominations, no public interviews of candidates and no selection of candidates by the Judicial Service Commission.  There will be no transparency whatever about the processes by which the President selects his judges.  It will be difficult to assess whether those appointed have the requisite experience and qualifications – and an inexperienced person without judicial experience could be appointed as Chief Justice

Comment:  The Constitution gives the superior courts power to monitor constitutional compliance by everyone, from the President down to the lowest official, and to ensure that everyone abides by the principles laid down in the Constitution including respect for the law and fundamental human rights and freedoms.  So important is the courts’ role that section 164 of the Constitution states:

“The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance …”

If judges are to be appointed at the whim of the President, how can the public respect their independence, impartiality and effectiveness?

Appointment of Prosecutor-General

Under section 259(3) of the Constitution, the Prosecutor-General is appointed by the President on the advice of the Judicial Service Commission.  Clause 20 of the Bill will allow the President to appoint the Prosecutor-General entirely at his own discretion, without seeking anyone’s advice.

Comment:  Like the proposed changes to the appointment of judges, this is an undesirable amendment.  The Prosecutor-General is in charge of prosecutions on behalf of the State, which means he or she decides who should be prosecuted for crimes and who should not.  It is important that these decisions are made impartially and without interference from the Executive – indeed section 260 of the Constitution says that the Prosecutor-General must be impartial and not subject to anyone’s direction or control.  A Prosecutor-General appointed at the sole discretion of the President is unlikely to have the requisite independence and impartiality.

Abolition of Zimbabwe Gender Commission

Clauses 18 and 19 of the Bill will abolish the Zimbabwe Gender Commission and transfer its functions to the Zimbabwe Human Rights Commission.

Comment:  The functions of the two commissions overlap because gender rights are part of human rights, though admittedly a very important part.  Hence there is some sense in folding the Gender Commission into the Human Rights Commission.

On the other hand, gender rights are particularly sensitive so a special commission to handle them is justified.  There has been no suggestion that the Zimbabwe Gender Commission has failed to carry out its functions properly, or that the Zimbabwe Human Rights Commission is in a better position to carry them out.  So why abolish the Commission?  Women’s forums have expressed their opposition to this change.  Gender-based violence is endemic in Zimbabwe, and a commission that specialises in gender issues may be in a better position to deal with it than a more generalised human rights commission.

Note, incidentally, that abolition of the Commission will mean the Zimbabwe Gender Commission Act of 2015 will have to be repealed and some provision made for the terminal benefits of its commissioners and staff and the continuation of its functions by the Human Rights Commission.

Traditional Leaders

According to section 281(2) of the Constitution, traditional leaders must not be members of any political party and must be completely non-partisan.  Clause 21 of the Bill will abolish this requirement.

Comments:  The Bill’s memorandum explains this amendment by saying that requiring traditional leaders to be non-partisan violates their political rights.  It doesn’t – any more than requiring judges and members of the Defence Forces to be non-partisan violates their rights.  Being party-political would also interfere with many of their traditional functions such as presiding over their courts and allocating land, which require them to be impartial.

Other Amendments to Constitution

In addition to those we have outlined above and in our earlier bulletin, the Bill will make several other amendments to the Constitution:

Qualifications of Attorney-General

At present, lawyers are qualified to be appointed Attorney-General if they are qualified to be appointed as judges of the High Court.  Clause 7 of the Bill will require them to have the qualifications of Supreme Court judges.  All this really means is that, to be qualified for appointment, lawyers will have to have been in practice for ten years rather than seven years.

Role of Defence Forces

Section 212 of the Constitution declares that the Defence Forces have the function of protecting Zimbabwe and its people, and upholding the Constitution.  Clause 16 of the Bill will remove the separate function of upholding the Constitution and instead will state that protecting Zimbabwe and its people must be done in accordance with the Constitution.

Comment:  The amendment does not significantly alter the role of the Defence Forces.

Abolition of National Peace and Reconciliation Commission

Clause 22 of the Bill will abolish the National Peace and Reconciliation Commission.

Comment:  The Commission was established for a ten-year period which ended in 2023, so its abolition as a constitutional commission is a formality, legally at least.  The National Peace and Reconciliation Commission Act of 2017 does not extend the Commission’ life, which means that in law it ceased to exist in 2023.  In fact the Commission has continued to receive government funding (this needs to be accounted for) so it has remained notionally in existence, though unable to do anything.

General Comments

According to the Bill’s memorandum, the proposed amendments are unobjectionable, designed to

“reinforce constitutional governance, strengthen democratic structures, clarify institutional mandates and harmonise Zimbabwe’s constitutional order with tested and successful practices in other progressive jurisdictions.”

Nothing could be further from the truth, as we have tried to demonstrate in this and the earlier bulletin:  the amendments will weaken constitutional governance by violating the principle of separation of powers and reducing the judiciary and chief prosecutor to presidential hirelings;  and they will nullify the institutional mandate of the Constitutional Court by allowing it to determine its own jurisdiction.  As for harmonising our constitutional order with other progressive jurisdictions, the amendments will bring our presidential system into line with countries such as the Central African Republic, Gabon and Equatorial Guinea, none of which can lay claim to stability and good governance.

The Bill has nothing to recommend it.  When it comes before Parliament it should be rejected in its entirety.  Even if it is passed by Parliament it will be open to challenge on the ground that it violates the fundamental values of the Constitution.

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