Paper by David Coltart: A Critique of the Constitution of Zimbabwe and Some Thoughts as to What Should Be Included in a New Constitution

A Critique of the Constitution of Zimbabwe and Some Thoughts as to What Should Be Included in a New Constitution

By David Coltart

9th May 1998

Constitutional Reforms and Requisite Guarantees of Fundamental Human Freedoms: Workshop on the Media and the National Constitution

A CRITIQUE OF OUR EXISTING CONSTITUTION

History: General Observations

At the outset one should state the obvious, namely that the Constitution of Zimbabwe was an expedient document of compromise designed to end a war. It was drafted in a hurry by foreigners and was agreed upon by relatively elderly male politicians. In other words the general public and civic society of Zimbabwe was never given an opportunity to discuss its contents. There was never any public debate regarding what should be included in it. Whilst it is fully understood why this happened and why what happened was necessary it nevertheless remains one of the reasons why the Constitution is not “owned” by the public as, for example, the American Constitution is.

This fact must be borne in mind as we enter discussions regarding a new Constitution. It seems that virtually everyone now agrees that the old constitution should be amended. However, it is critical that we do not make the same fundamental mistake in drafting a new Constitution, namely that of engaging in a “top-down” process in terms of which the politburo only decides what should be in the new Constitution and there is limited discussion within the party prior to the new Constitution being promulgated. It is imperative that there be adequate consultation with people at grassroots level. However it should also be recognised that there are weaknesses in relying on that input alone as the formation of laws is, to most people, a baffling concept and accordingly it is equally imperative that extensive consultations be held with academics, the business community, Judges, the Law Society, churches and organisations such as the Legal Resources Foundation, Zimrights and other civic organisations. It goes without saying that all those involved in the political process including small and faltering political parties and the ZCTU should be included in the process as well. It is simply not acceptable for ZANU (PF) to say because it has a majority in Parliament at present (which it has achieved as a result of the existing Constitution) that it should be the sole organisation which determines the final shape of the Constitution.

I shall now go through the existing constitution chapter by chapter and briefly comment on unacceptable features.

Chapter II: Citizenship

Section 9 Chapter II of the Constitution allows Parliament to deprive people of their citizenship. In contrast, the South African Constitution (Section 20) states simply “no citizen may be deprived of citizenship”. Our citizenship laws have been used in a racist manner to deprive people born in this country of citizenship and to grant citizenship to undesirable people who were not born in this country and who have sought refuge here. Furthermore several provisions in Chapter II remain discriminatory in that women citizens’ children whose fathers are not citizens are not entitled to citizenship. The right to dual citizenship was removed by Act 1 of 1983. I have no strong views on this personally but if we are to attract investment should we not consider reintroducing dual citizenship, something which is allowed by many industrial states, including Britain?

Chapter III: Declaration of Rights

A completely separate paper could be written on the Declaration of Rights. I shall briefly make the following comments:

1. The preamble (the old Section 11) should be reinstated. It was changed dramatically in terms of Act 14 of 1996.
2. There will have to be considerable debate regarding the Declaration of Rights as people have strong views on different clauses. For example, our present Constitution allows for the death penalty which the majority of the population probably agrees with. However, there is need for debate on this issue so that all the arguments can be understood by everyone prior to the final clause being agreed upon. Likewise Section 16 (protection from deprivation of property) needs to be discussed in detail. The equivalent South African right (Section 25) strikes a particularly good balance. It says property may be expropriated for a public purpose or public interest subject to compensation being approved by Court. It also says that the amount of compensation must reflect an equitable balance between the public interest and the interest of those affected and must take into account relevant circumstances including the current use of the property, the market value of the property, the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property and the purpose of the expropriation. That is a far cry from the present Section 16 which vests far too much power in the state and makes potential investors nervous.
3. There are some provisions in the existing Constitution which need radical revision. For example Section 20(2)(b)(iv) allows the ZBC to have a monopoly in broadcasting services. Whilst the provision has been challenged in the Supreme Court any new Constitution must make it quite clear that anyone has the right to broadcast subject to reasonable licensing controls. Likewise Section 21 of the existing Constitution (protection of freedom of assembly and association) is a meaningless right unless the formation of political parties and the funding thereof is done on a level playing field.
4. The present Declaration of Rights contains so many provisos that many of the rights are dramatically watered down and meaningless. Furthermore there are important omissions in the present declaration. For example, there is no right relating to the environment, no right relating to privacy, no right relating to access of information, no right to housing, no right to health care, no right to education, and so on.
5. Section 25 of the existing Constitution states that the Declaration of Rights may be derogated from when a period of public emergency is in effect. In terms of the Constitution the declaration of public emergency is made in the sole discretion of the President subject to it being approved by Parliament within fourteen (14) days of its declaration. The South African Bill of Rights states (in Section 37(3)) that a competent court may decide on the validity of the declaration of a State of Emergency. It also states that legislation may only derogate from the Bill of Rights to the extent that the derogation is strictly required by the emergency and, amongst other things, the extent to which such legislation is consistent with South Africa’s obligations under international law. We have no such protection.
6. A major problem with the Declaration of Rights is that it can be changed at the drop of a hat (a two thirds majority). Since 1987 the Declaration of Rights has been repeatedly watered down by Government. On numerous occasions well considered judgements of the Supreme Court have been reversed by amendments to the Constitution’s Declaration of Rights. Once we have a new Declaration of Rights which enjoys the support of the majority of the population that Declaration of Rights should be entrenched. The Ghanaian Constitution has an interesting provision in this regard. Its Bill of Rights is entrenched and can only be amended by referendum which secures a 75% approval vote for the proposed amendment.

Chapter IV: Executive

Part 1: The President

My principle concern in this regard relates to Section 29 being the tenure of office of the President. The present tenure of the President is a period of six (6) years and the number of terms is not limited. It is prudent to limit the President to two (2) terms of office. In my view a period of six (6) years is far too long the term of office of a President should be limited to four (4) years (certainly not more than five (5) years).

Part 2: Vice Presidents

Section 31C allows for “not more than two (2) Vice Presidents”. There can be no justification for this any longer and this section should be amended to allow for only one Vice President.

The present Section 31G allows the President to appoint a cabinet. A grave omission in the present Constitution is that the obligations of Cabinet Ministers are not spelt out in the Constitution. For example, in the South African Constitution (Section 96) members of the Cabinet must act in accordance with the ethics prescribed by national legislation. Furthermore members of Cabinet may not act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interest or use their position or any information entrusted to them to enrich themselves or improperly benefit any other person.

Part 3: Executive Functions

The original executive functions set out in the Lancaster Constitution have been changed dramatically by Act 23 of 1987, Act 37of 1989 and Act 15 of 1990. It is this section of the Constitution that gives the President the enormous powers that he has at present. For example:

1. Section 31(H)(4) gives the President virtually unfettered powers to appoint diplomats, to enter into international conventions, to proclaim and to terminate martial law, to declare and to make peace and confer honours and precedence. Whilst the President, in terms of Section 31(H)(5), has to act on the advice of cabinet he can of course remove any Minister, which basically gives him unfettered power. As stated earlier the President has the sole and unfettered power to declare a state of public emergency. In America the President must get many of his decisions ratified by Congress. In the South African Constitution (Section 84) the President’s powers are nowhere near as wide as the existing powers. For example a state of emergency may only be declared by Parliament, the President does not have the power to declare war and many of his other decisions must be ratified by Parliament.
2. Section 31(K) dramatically limits the justiciability of the President’s functions. This clause should be removed.

Chapter V: Parliament

Part 2

The Senate was removed by Act 31 of 1989. I personally believe that this was a retrogressive step as it provided a useful check on Parliament. My personal view is that the Senate should be reintroduced and that Senators should be elected specifically to represent regions. For example, I believe that each province should elect two Senators, as is the case in the United States. The qualifications for a Senator should be higher than those in Parliament so that technical expertise is reintroduced to the legislative process.

Part 3

Section 38 is the provision which allows for the election of Members of Parliament in 120 common role constituencies and the appointment of eight (8) provincial governors and twelve (12) others into Parliament by the President. It also provides for ten (10) chiefs to be elected. I have two main objections to Section 38. Firstly the appointment of Members of Parliament by the President is undemocratic and in violation of the principle of separation of powers. Secondly, the Westminster system of “first-past-the-post” constituency elections is unsuitable to Zimbabwe. The Westminster system promotes regionalistic/tribablistic parties, as evidenced by Mr Sithole’s ZANU victories in Chipinge, and prevents smaller parties and interest groups from having any representation in Parliament notwithstanding the fact that they may enjoy support countrywide. Furthermore the present Registrar General has shown himself absolutely incapable of running efficient and fair elections countrywide. Elections run on a proportional representation system are much easier to organise. Indeed our first election held in 1980 was done on the party list system. The new South African Constitution (Section 46(1)) decrees that the electoral system must result in proportional representation.

Part 4

Section 41(1)(e) allows a political party to write to the Speaker to declare that a Member no longer represents its interests in Parliament. This is an unacceptable provision in a democratic country as it effectively prevents Members of Parliament from voting in accordance with their conscience.

Part 5: Powers and Procedure of Parliament

Section 52: Alteration of the Constitution

Perhaps the most serious amendment to the Constitution since Lancaster House was the repeal of the old Section 52(4) which entrenched the provisions relating to fundamental rights and freedoms. The repealed section required the affirmative votes of all the Members of the then House of Assembly. The Declaration of Rights and certain other provisions, for example those provisions relating to the electoral process, should be entrenched and not subject to amendment by Parliament. As indicated above we could perhaps borrow from the Ghanaian Constitution which allows for a referendum. As things stand the Constitution can effectively be amended by the President’s thirty (30) appointees/chiefs and seventy (70) other Members of Parliament who are all required to tow the party line in terms of section 41(1)(e) referred to above.

Part 6: Elections

Sections 59, 60 and 61 have been dramatically amended since 1987.These provisions deal with the Delimitation Commission, delimitation of constituencies and Electoral Supervisory Commission respectively. In terms of the original Lancaster House Constitution the President would appoint a Delimitation Commission “with the approval of the Chief Justice”. The new Section 59 says that the President shall appoint it “after consultation with the Chief Justice”. Likewise in the original constitution the Electoral Supervisory Commission was appointed by the President acting “on the advice of the Judicial Service Commission” and the Speaker. Now the President appoints the Commission “after consultation” with the Judicial Service Commission and the Speaker. In my view these subtle changes have effectively given the President the power to subvert the electoral process. Both the Delimitation Commission and the Electoral Supervisory Commission should be effectively appointed by a neutral person such as the Chief Justice as was the case originally.

Chapter VII: Public Service

Attorney General

In terms of the original Constitution the Attorney General was appointed by the President, acting on the advice of the Prime Minister who in turn had to consult the Judicial Service Commission and if the advice of the Judicial Service Commission was not taken Parliament had to be informed before the appointment was made. The Attorney General did not form part of Cabinet either. In terms of the amendments introduced in 1989 the Attorney General became part of Cabinet and is now appointed by the President “after consultation with the Judicial Service Commission”. I believe that it is important that the Attorney General should be separate from the executive. Anything else impinges on the notion of separation of power and in practical terms promotes corruption because it is very hard for an Attorney General to institute criminal prosecutions against his fellow Cabinet Ministers.

Chapter VIII: The Judiciary

In terms of the original Constitution Judges of the High Court and the Supreme Court were appointed by the President acting “on the advice” of the Judicial Service Commission. In 1987 the President’s powers were increased by the amendment of Section 84 to read that the Chief Justice and other Judges of the Supreme Court and High Court shall be appointed by the President “after consultation with” the Judicial Service Commission. In terms of the original provision contained in the Lancaster House Constitution the appointment of the Chief Justice had to be done in consultation with the Judicial Service Commission and if the President did not appoint the Chief Justice in accordance with such recommendations Parliament had to be informed before the appointment was made. The effect of all this has been to politicise the appointment of Judges and accordingly undermine the separation of powers doctrine. Likewise Section 86, which deals with the tenure of office of Judges, has been amended. In terms of the original Constitution Judges had to retire at the age of 70 years unless the Judicial Service Commission advised that the Judge should remain in office. In 1987 that was changed so that the President only had to consult with the Judicial Service Commission. When Dr Enoch Dembutshena reached the age of 70 years in 1990 he, I understand, wished to continue in office and had the support of the Judicial Service Commission. However, the President decided not to extend his tenure of office and as a result denied Zimbabwe the service of an outstanding Chief Justice. As you may be aware in the United States of America the Supreme Court Judges have life tenure which I believe is the only adequate protection. Section 87 (which deals with the removal of Judges from office) in my view gives the President and the Chief Justices too much power, especially considering that the Chief Justice is appointed by the President now. Whilst this provision is substantially unchanged from the original Lancaster House Constitution it is weighted too much in favour of the executive. I firmly believe that if the doctrine of separation of powers is to be respected the Judges themselves should have a say in the dismissal of their fellow Judges. The amendment of Section 90 in 1987, which deals with the appointment of the Judicial Service Commission, dealt a serious blow to the judiciary. The original Constitution stated that the Judicial Service Commission should consist of the Chief Justice, the chairman of the Public Service Commission and two other members appointed by the President who had to be either a Judge or a lawyer with not less than seven (7) years experience. The amendments resulted in a radical transformation of the Judicial Service Commission which now comprises the Chief Justice, the chairman of the Public Service Commission, the Attorney General and two or three other members who can be appointed by the President if he considers their legal qualifications and legal experience “suitable and adequate”. The practical effect of the changes has been to give the President almost unfettered power in the appointment of Judges. This is in stark contrast to the South Africa Judicial Commission (set out in Section 178 of the South African Constitution) which is comprised of a wide grouping of people including the Chief Justice, the President of the Constitutional Court, advocates from the bar, attorneys from the side bar, opposition nominees and so on.

Chapter XI: Finance

An important provision relates to the appointment of the Comptroller and Auditor-General. In terms of the original Constitution the Comptroller and Auditor-general were appointed by the President acting on the advice of the Public Service Commission. In 1987 the President was given additional powers and he now only has to act after consultation with the Public Service Commission.  The only safeguard is that if the appointment of a Comptroller and Auditor-General is not consistent with a recommendation made by the public service commission the President has to inform Parliament. However in reality this is a paltry safeguard and once again further unnecessary power has been vested in the office of the President.

Chapter XII: Miscellaneous Provisions

Section 111B: Effect of International Conventions

In 1993 Government enacted a particularly insidious provision relating to international conventions. In terms of Section 111B(1) even where the President has acceded to an international convention that convention shall not form part of the law by or under an act of Parliament. This means that it has been incorporated into the law by or under an act of Parliament. This means that even though Zimbabwe may appear to be in good standing in the United Nations the practical effect of the ratification of any international human rights treaties is nil for Zimbabwean citizens. This stands in marked contrast to the South African Constitution which states (for example in Section 37 regarding states of emergency) that legislation must be consistent with South Africa’s obligations in terms of international law. In addition, in terms of Section 39 of the South African Constitution when any court tribunal or forum is interpreting the South African Bill of Rights they are obliged to consider the application of international law. Our present Constitution does just the opposite and in my view Section 111B should be repealed in its entirety and replaced with a provision which obliges Zimbabwe to legislate in conformity with its international law obligations.

SOME THOUGHTS AS TO WHAT SHOULD BE INCLUDED IN A NEW CONSTITUTION

Introduction

The process of developing a new Constitution should be as inclusive as possible. In this section of the paper I look at very general proposals which deal with the principles involved rather than specific proposals. The specific proposals should flow from public debate.

Adequate Separation of Powers

The most serious flaw in our present Constitution is that it has totally subverted the concept of separation of powers. The executive is overwhelmingly powerful at the expense of both the legislature and the judiciary. In 1987 Government incorporated those aspects of the American Constitution which give powers to the American President without balancing that by giving additional powers to the legislature and judiciary. At present there are many calls for the reintroduction of the Senate etc, but that in itself will not resolve the problem.

The American system is not in itself bad. If the President is to be elected directly and if he is to play an executive role then efforts should rather be made to strengthen the legislature and judiciary. Efforts should also be made to curtail the President’s powers vis a vis both the legislature and the judiciary. For example, the President should be given limited legislative ability but should have the power to veto laws passed by Parliament. Cabinet should not be chosen from the ranks of MPs as is presently the case. MPs should be able to vote with their consciences and not face expulsion at the whim of the leader of their party, who also happens to be the President. Judges should receive life tenure so that they too cannot be relieved of their duties at the whim of the President. The Senate should be reintroduced with special recognition being given to the leader of the Senate and the leader of the (new) House of Assembly.

If we wish to revert to the pre-1987 situation, and wish to have a ceremonial President and a Prime Minister then we must give serious consideration to separating powers effectively. The problem with that situation is that the executive once again is far too closely linked to the legislature. The Westminster system works effectively in Britain where the monarchy carries, or at least used to carry, great moral authority. British institutions such as the press have always acted as an effective balance against the otherwise somewhat imbalanced separation of powers in Britain. We do not have the same traditional structures and so we should be very cautious about reintroducing a Senate and a Prime Minister as applied pre-1987. If we are to have this then the Prime Minister should have no control over the Senate. The Prime Minister should have little control over the appointment of Judges. The Senate and the ceremonial President should be able to block legislation even if they do not have the powers to initiate legislation.

If we decide to adopt an American type of constitution with an Executive President it follows that both the legislature and judiciary must be strengthened. The legislature should be given more powers including the power to ratify ambassadors and other presidential appointees. The judiciary should have its own budget. A Judicial Services Commission should be changed so that it is controlled by the legal profession and Judges who will decide on who should be Judges. Life tenure should be given to Supreme Court Judges. If the country decides to reinstate the position of Prime Minister then further powers should be considered for the judiciary to ensure an adequate balancing between the judiciary and legislature/executive.

Electoral Process

Whatever system of government is decided upon, close attention should be given to the electoral process. Fundamentally, the Delimitation Commission and the Electoral Supervisory Commission should be made bodies completely independent of the executive and the legislature. They should be appointed preferably by the judiciary in conjunction with civic organisations. Their funding should not be dependent upon executive whim and they should be compelled to report publicly. They should be given wide powers to intervene in the electoral process itself.

The Declaration of Rights should be amended to provide for a fair electoral process. Of vital importance is the removal of the monopoly given to the Zimbabwe Broadcasting Corporation. Furthermore, all State controlled or State owned media organisations should be compelled to give fair and impartial access to all political parties.

For the reasons set out above the electoral process should ensure proportional representation in Parliament. Specific attention will have to be given to the funding of political parties. Whilst the Political Parties Finance Act has recently been amended it is still unfair and the Constitution should ensure that funding of parties be done in proportion to the votes cast during the previous election subject to a very low threshold (in Germany I believe the threshold is 0.5%).

Declaration of Rights

Our Declaration of Rights needs to be completely rewritten. At present it is written in such a complicated and confused fashion that it is unintelligible to most people including lawyers! It needs to be completely rewritten so that it can be understood by school children. Furthermore its provisions, once agreed, must be entrenched for all time so that they cannot be amended at the whim of the President or the ruling party.

Whilst most of the clauses will enjoy the support of the vast majority of the people, some clauses should be subjected to a referendum. For example, regarding the death penalty I think there needs to be a nationwide debate followed by a referendum. In this debate the death penalty should not be looked at in isolation. It should be considered in the light of our legal system. For example, can we be satisfied that all those going through the courts will be given adequate legal representation when facing capital charges? All of these factors must be considered prior to the drafting of the final right. If the majority wish to have the death penalty then perhaps there should be a proviso stating that all those facing capital charges will be given the benefit of legal representation from Senior Counsel at Government’s expense. The point is simply that if we are to entrench the Declaration of Rights there must be full and adequate debate about all the clauses.

There are some grave omissions from our existing Declaration of Rights. In particular I believe the rights of access to information, privacy, environment and just administrative action should be included. Furthermore, consideration should be given to the incorporation of the so-called “second generation of rights” which include the rights to education, a job, health facilities and the like.

Certain existing clauses need to be strengthened. Our provision relating to discrimination needs to be amended. The rights of women, for example, are still not adequately protected in terms of our Constitution.

CREATION OF STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY

In my view the new Constitution should establish new state institutions specifically designed to support the constitutional democracy. Furthermore we need these new institutions to ensure that whoever takes over the regions of power in future will be made personally responsible/accountable.

The biggest problem facing Zimbabwe today is corruption. The Constitution should create mechanisms to combat corruption. I would like to see the establishment of a Corruption Commission which has at its disposal strong subsidiary legislation to empower it. For example the Hong Kong Bribery Ordinance creates an onus on civil servants to prove their legitimate sources of income where their standard of living exceeds their state income. This ordinance is enforced by a Corruption Commission. The Constitution should also make provision for all those holding public office to make a full disclosure of their assets prior to taking office. The same provisions should enforce a requirement for an annual public disclosure of assets of all those holding public office. The Comptroller and Auditor General’s office need to be strengthened so that there is adequate enforcement of these provisions.

In my view the Constitution should also create a Human Rights Commission, as is the case in South Africa, with a specific mandate to ensure that the Declaration of Rights is complied with. On a similar note the creation of a Commission for Gender Equality, as is the case in South Africa, would also help to prevent discrimination against women.

I have touched on the need to ensure that there is adequate regulation of state controlled or owned media. South Africa has created an independent authority to regulate broadcasting. We need something similar. I have certain reservations about the South African authority as it already appears to have been politicised. We may have to draw on British expertise to find out how the BBC is regulated.

EDUCATION REGARDING AND DISSEMINATION OF THE CONSTITUTION

Whilst this is a novel concept I believe that the Constitution itself should contain some provision relating to its own dissemination amongst the Zimbabwean public. A constitution will remain just a piece of paper until the public understand it and have a desire to enforce it. Accordingly thought must be given to ensuring that the Constitution is taught to school children and made freely available to all Zimbabwean citizens.  It should be the right of every Zimbabwean citizen to have a copy of the Constitution in a language he/she understands.