Analysis of the Constitution Amendment Bill : Part 1

On the 16th February the long-threatened Bill to amend the Constitution and extend the President’s term of office was published in a Gazette Extraordinary.  The Bill can be accessed on the Veritas website [link].  Apart from extending the presidential term, the Bill will do several other things:  it proposes that the President should be elected by Parliament rather than by voters in a general election, for instance;  it will also strip the Zimbabwe Electoral Commission [ZEC] of its responsibility for registering voters and delimiting electoral boundaries;  and it will give the President power to appoint ten Senators.

In this bulletin and the succeeding one we shall examine the Bill in detail and comment on the amendments it proposes to make to the Constitution.

Election of the President and Extension of the Presidential Term

The most controversial provisions of the Bill are contained in clauses 3 and 4.  Clause 3 will provide for the President to be elected by Parliament, not by voters in a general election, and clause 4 will extend the presidential and parliamentary terms from five to seven years.

Election of the President

Under clause 3 the President will be elected by Members of Parliament – Senators and members of the National Assembly sitting together – after each general election.  ZEC or a “designated judge” will preside over the presidential election, which will be conducted in accordance with Parliament’s standing orders.  Until this election has taken place, the previous President will remain in office.  Parliament will be forbidden to pass amendments to any laws “introducing substantive policy changes” while there is a vacancy in the office of President.

Comment:  It is not necessarily a bad thing for the President to be elected by Parliament rather than by the general body of voters – the South African President is elected in this way, for example.  It means, at least in theory, that the President will derive his power from Parliament and will not have an independent mandate from the people.  In the immediate Zimbabwean context, however, the amendment probably reflects the stated objective of the ruling party to extend the current Presidents term.  That is not a worthy or adequate reason for changing the way Presidents are elected.

We should add that the clause is carelessly put together.  There is no indication, for example, of who will designate a judge to preside over presidential elections in Parliament.

Extension of the presidential term

Clause 4 of the Bill will extend presidential terms of office from five years to seven years.  It also contains a provision to make the extension apply to the current President’s term of office, so that his term will end in 2030 rather than in 2028.  According to the provision, the extension will apply to him despite section 328(7) of the Constitution, which states that a constitutional amendment extending the length of time that a person is allowed to hold an office (a term-limit) cannot apply to anyone who has held or is currently holding the office.

Comments:  There are problems with trying to extend the current President’s term of office.  As we have said, section 328(7) of the Constitution states that an extension to a term-limit (which in the President’s case is two five-year terms) cannot apply to the current office-holder.  If the current President is to be allowed to serve an extra two years, it will entail amending or overriding section 328(7) but this cannot be done except through a Bill which, after being passed by Parliament, has been approved by a majority of voters in a national referendum (see subsections (6) and (9) of section 328).  Hence, before clause 4 of this Bill becomes law, it must be put to a referendum and approved by the voters.

It has been suggested that the Bill will merely elongate the electoral cycle, but this ignores the fact that the Bill will lengthen the period the current President may remain in office:  in other words, it will extend his term.  If it does that, it will override section 328(7) – i.e. it will amend the section – and so have to be put to a referendum.

As to the intrinsic merits of the proposal, it must be conceded that there is nothing magical about five-year terms for presidents and legislatures.  In the United States presidents and members of Congress serve four-year terms, and in Britain parliamentary terms have varied over the centuries from three to seven years.  In France presidential terms used to be seven years but were reduced to five years in 2002.  However, seven-year terms for executive presidents are rare nowadays, for sound democratic reasons, and tend to be associated with authoritarian régimes.

Furthermore, experience has shown that persons in government become more complacent the longer they remain in office, so their efficiency decreases and corruption tends to increase.

In this country, the proposed amendment runs counter to a founding value of our Constitution, namely good governance.  Section 3(2)(b)(ii) of the Constitution states that free, fair and regular elections are a principle of good governance, and section 67 goes on to make regular elections the right of every Zimbabwean citizen.  This principle and this right will be rendered nugatory if the President and Members of Parliament are allowed to extend their terms of office merely to suit the internal dynamics of the ruling party, without putting the extension to a referendum and getting it approved by a majority of the electorate.

The justification put forward for the extension is unconvincing.  According to the memorandum attached to the Bill, extending the President’s term will “eliminate election mode toxicity and allow sufficient time for project implementation”.  The toxicity of elections has nothing to do with their frequency.

If a government fails to carry out its projects in five years it should go back to the voters and justify its failure, so that the voters can either renew its mandate or give another party a chance to do better.

Vice-Presidents and Presidential Succession

At present there are two Vice-Presidents appointed by the President (section 94(2a) of the Constitution, as amended in 2021);  one of them is designated as the first Vice-President who acts for the President whenever the President himself is absent.  If the President dies or ceases to hold office, the first Vice-President acts until a new President is nominated by the former President’s party (section 101 of the Constitution).

Clauses 5 and 6 of the Bill propose to change this so that “the Vice-President” will take over when the President is absent or unable to exercise his or her functions until the President returns or, in the event of the President’s death or removal from office, until Parliament elects a new President.

Comment:  The amendment is confused, in that it does not specify which Vice-President should take over if there are two of them.  It would be better if the amendment were to reduce the number of Vice-Presidents to one, though that might make it difficult to maintain regional balance in the topmost tiers of government.

Extension of the Life of Parliament

Clause 9 of the Bill proposes to extend the life of Parliament – i.e. to lengthen the intervals between general elections – from five to seven years, in tandem with the new presidential term.  The clause also tries to apply this extension to the current Parliament so that the next general election will be held in 2030 rather than 2028.

Comments:  What we have said about extending the term of the President applies equally to the attempt to extend the life of the current Parliament, because it necessarily entails extending the tenure of the current parliamentarians – i.e. it will extend the time that they remain in office.  So if it is to be done at all, the Bill will have to be approved by voters at a referendum.

The clause, incidentally, is badly drafted.  It purports to extend “the office of the Senate and the National Assembly”, which is nonsense.  There is no such office.

Composition of the Senate

Clause 8 of the Bill will give the President power to appoint ten Senators “chosen for their professional skills and other competencies”.

Comments:  Good governance is a founding value of the Constitution, as we noted earlier, and one of the principles of good governance is the separation of powers (see section 3(2)(e) of the Constitution).  The principle of separation of powers will be violated if the President, who heads the Executive branch of government, is given power to appoint Senators, who are members of the Legislative branch.

Under the Lancaster House constitution as amended in 2007, President Mugabe was given power to appoint five Senators, and he always appointed loyal party members – which was often their only apparent qualification.  It would be naïve to assume that the current and future Presidents will be any more selective in their appointments.

It may or may not be significant, but the proposed amendment will indirectly allow the President to appoint more unelected Cabinet Ministers.  Under section 104 of the Constitution, the President is entitled to appoint up to seven Ministers from outside Parliament.  If the amendment is passed he could get round this limit by appointing prospective Ministers as Senators and then appointing them to the Cabinet.  In this way he could pack the Cabinet with unelected Ministers who are loyal to him personally.

Our analysis of the Bill will continue in the next Constitution Watch.

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