“The Smoke and Mirrors Constitution”

The question that every Zimbabwean has to ask prior to voting in the referendum is “will the proposed draft constitution lay the necessary foundation for the emergence of a strong, and economically powerful, democratic state?” At first glance the constitution appears to be an improvement on the old one. However on deeper analysis it is apparent that this constitution is no more than what I would term a “smoke and mirrors” conjuring act. For the new constitution is not all that it appears to be and in many respects is even more draconian than our existing constitution.

A less powerful Executive?

The last few days of the Constitutional Commission saw a fierce debate emerge as to whether the people wanted a ceremonial President or an executive President. Strong arguments have been put forward by many as to what the view of the people was. I do not propose to tackle this issue. What is indisputable is that an overwhelming majority of Zimbabweans wanted dramatic reduction in power allocated to the President and a spreading of powers between the three arms of Government, namely the Executive, Legislature and Judiciary. In the circumstances it is not even necessary to get embroiled in the ceremonial/executive President debate. All that we need to do is analyse the new constitution to see whether it, firstly, meaningfully reduces power vested in the hands of one man and, secondly, spreads that power amongst the Executive, Legislature and Judiciary. A closer examination of the new constitution reveals that it has achieved neither of the above for the following reasons:

1. The proposed executive President will retain most of the powers enjoyed by the incumbent President in terms of the existing constitution and in fact will have some additional powers he does not enjoy at present. In terms of section 100(2)(b) the President will have the power to appoint and remove the Prime Minister. Whilst the President will have to act on the advice of the Prime Minister in appointing Cabinet Ministers, because he has the power to remove the Prime Minister it is obvious that he will effectively control the composition of Cabinet. In addition he will preside over Cabinet meetings. These features not only retain existing powers but have the additional effect of blurring the separation between the Executive and the Legislature. The measures give the President a much closer link to Parliament. A particularly insidious new provision is that, whilst the President has to act on the advice of the Prime Minister and with the sanction of Parliament to deploy defence forces outside Zimbabwe and to declare war, the same does not apply to the deployment of troops within Zimbabwe. Chapter X of the constitution allows the President unfettered powers to deploy troops within Zimbabwe. In terms of section 186 he only has to act “in consultation” with the Prime Minister (in other words he does not have to comply with the Prime Minister’s wishes) and, worse still, he can deploy troops within Zimbabwe without having to have such a deployment approved by Members of Parliament. In addition in terms of section 188 the President now has the power “to determine the operational use” of the defence forces. It is pertinent to note that these are new and additional powers given to the Executive President which are particularly chilling when one considers how the incumbent President and his cabinet have used the army to quell internal dissent in Zimbabwe in the last 20 years.
2. The President will have virtually unchanged rights to declare a state of emergency. Whilst such a declaration will have to be referred to Parliament no right is given to citizens of Zimbabwe, as is afforded by the South African constitution, to challenge such a declaration through the Courts. It should be noted that the President will have the right to declare a state of emergency only “in consultation with” the Prime Minister. Once again he will not have to follow the views of the Prime Minister in doing so.
3. The existing Presidential prerogative of mercy and Presidential immunity provisions contained in our present constitution are virtually unchanged in the new. Section 85(2) of the new constitution which deals with Presidential immunity, is somewhat ambiguous but could be interpreted to mean that the President enjoys immunity from prosecution for anything done in his official capacity (whilst in office) even after he leaves office. That provision alone is against the overwhelming sentiments expressed by the people as recorded in the thematic committees’ draft papers.
4. ZANU (PF) apologists have been at great pains to point out that the President’s existing powers to appoint Judges, Ambassadors and heads of commissions have been curtailed in that such appointments will now have to be approved by the Senate. On the face of it the new measures do amount to a reduction in Presidential powers but in reality I believe the President will still have effective power regarding such appointments. The reason for this is partly because the President largely has the sole discretion in the selection of appointees, but is mainly because the Senate will be a relatively weak body. It is proposed that the Senate will be comprised of sixty members, ten of whom will be chiefs, forty of whom will effectively come from rural areas and the remaining ten, all of whom will come from Harare and Bulawayo. Some four million people live in Harare, Chitungwiza and Bulawayo. Accordingly one third of the population (the urban population, the majority of whom are disenchanted with the present regime) will be represented by one sixth of the Senatorial seats. Furthermore, and somewhat ironically, because of the introduction of proportional representation in the election of senators, minority parties will almost certainly be excluded from the Senate. Senatorial seats will be contested in ten provinces on a proportional representation system which means that minority parties will have to secure at least 20% of the vote cast in each respective province to get a single Senatorial seat. In addition with the high age limit of 40 (the United States’ Senate has an age restriction of 30) the Senate is likely to be dominated by conservative, rural, ruling party apologists and I doubt whether the President will have much difficulty in securing a simple majority approval vote in the Senate.

It can be seen from this that the new draft is a very cunning deception. It appears to provide a check on Presidential power but in reality will not be an effective check at all. All told the President will, in reality, be just as powerful in terms of the new constitution as he is in terms of the existing constitution. What is horrifying is that in some ways he will be more powerful in that he will have much tighter control over Parliament and better defined powers to use the military both outside Zimbabwe and, more seriously, within Zimbabwe.

An Independent Judiciary?

All would agree that there have been clear and unequivocal calls this year for an independent and strong judiciary. Sadly the judiciary will be weakened by the new constitution.

1. Despite all the rhetoric the President will still exercise vast power in the appointment and removal of Judges. The President will have virtually unfettered powers in the appointment of the Chief Justice. He simply has to “consult with” the Judicial Services Commission and then has to get the appointment approved by a weak Senate. The President has virtually unfettered powers to initiate the removal of the Chief Justice. He does not have to consult anyone in doing so and is entitled to select two of the three members of a tribunal which must be set up to determine whether or not the Chief Justice should be removed from office. In stark contrast the Presidents of South Africa and the United States of America play a very limited role in the removal of their respective Chief Justices.
2. The Judicial Service Commission will be dominated by the President. Seven of its nine members will be directly or indirectly appointed by the President, albeit with the approval of the Senate. By way of comparison the South African constitution requires that at least fourteen of the twenty four Judicial Service Commissioners there are appointed without the South African President having any say in the matter. The effect of the Zimbabwean provision is to give the President an effective veto. As it is mainly the President who will determine the composition of the Judicial Service Commission so it will be that the President will control the composition of the Judiciary. People who are deemed to be anti-Government will not be on the Judicial Services Commission and accordingly a tame Judicial Services Commission is unlikely to recommend independent minded lawyers for appointment as Judges.
3. The Supreme Court itself has been dramatically emasculated by the creation of a new constitutional court. The Supreme Court’s existing powers to interpret the constitution will be removed with the creation of a new constitutional court. From a cursory glance at the new provision it appears as if a constitutional court will be independent. However closer examination reveals that whilst it will be comprised of present Supreme Court Judges and the Judge President, Parliament will be given wide powers, in terms of the constitution, to pack the court with additional judges. Section 151(3)(b) of the new constitution will grant Parliament the power to appoint additional judges to the constitutional court. This is a horrendous provision which completely negates the principle of separation of powers and undermines the independence of the judiciary. Parliament will have the power to pack the constitutional court with almost a majority of judges who will then consider the constitutionality of bills presented to the constitutional court by the very same Parliament which appointed these judges in the first place! Given that the President will have wide powers already in appointing the members of the judiciary it will be seen that it will be relatively simple to ensure that a majority of the constitutional court judges will be executive minded and will assist in stifling the progress of democracy in Zimbabwe.

A new Bill Of Rights which enshrines International norms?

The hearings that have been conducted by both the Constitutional Commission and the NCA this year have shown that there is amazing unanimity of thought regarding the need for a new and comprehensive Bill of Rights. Whilst there has been disagreement regarding some issues, such as the death penalty, an overwhelming majority have called for the introduction of rights which are omitted from our existing constitution. In this context the proposed Chapter III of the new constitution is a particularly outrageous example of ZANU (PF)’s smoke and mirrors trickery. The reason for this is because Part 2 of Chapter III, which sets out the rights is, by and large, a superb rendition of the fundamental rights we hold dear. For example at first glance there appears to be a limitation on the death penalty, unfettered rights to freedom of expression, rights to privacy and so on. However a closer examination of Chapter III in its entirety reveals a cynical strategy to deny Zimbabweans of their fundamental rights for the following reasons.

1. Part 2 of Chapter III contains a few new insidious “rights”. For example the President’s request for a right to “dignity and reputation” has been included in section 42. When this right is read in the context of the limitation clause in Part III it is quite clear that the freedom of expression right will be severely curtailed to protect the “dignity and reputation” of the ruling elite. Furthermore the new right to acquire agricultural land opens a pandora’s box and effectively denies owners of agricultural land the right to receive fair compensation within a reasonable period of time. Why we could not have borrowed the South African land acquisition clause is beyond me.
2. But the most iniquitous provision, which undermines the entire Bill of Rights, is found in the limitation section (Part 3). This clause takes away, threefold, with the left hand what has been given with the right hand. Every single right given in terms of Part 2 is subject to the limitation clause in Part 3, which allows Parliament to pass laws which limit our fundamental rights. The worst provision of all is section 62(3)(b) which allows Parliament to limit our fundamental rights in the interests of “defence, public safety, public order” and “the general public interest”. It is particularly instructive to note that the equivalent South African limitation clause has been followed closely save for the inclusion of this additional power given to Parliament to limit our fundamental rights in “the general public interest”. It is difficult to conceive of any legislative initiative which could not be described as in “the general public interest”. In short the limitation clause found in Part 3 of Chapter III completely undermines the Bill of Rights and renders it virtually meaningless.
3. The Bill of Rights is further undermined because of the provisions, mentioned above, stating that the interpretation of our rights and the validity of any bills limiting our rights, will now be determined by a constitutional court packed with “judges” appointed in terms of an Act of Parliament. In other words not only will Parliament have wide powers to enact legislation to limit our rights but it will also have a huge say in determining the composition of the judges who will determine the application and ambit of our rights.

A Fair Electoral System/Proportional Representation?

The Constitutional Commission has acknowledged that Zimbabweans have called for a fair electoral system and for the introduction of proportional representation. The Constitutional Commission has responded to this by creating an ostensibly independent electoral commission and a proportional representation system of elections. In reality there will be neither.

1. A Fair Electoral System?

Whilst it may be that there could be an independent electoral commission in future, as far as next year’s elections are concerned the Fifth Schedule to the new constitution makes it quite clear, in section 3(1)(e), that the present Delimitation and Electoral Supervisory Commissions and, significantly, Electorate Directorate (which includes the Registrar General) will be deemed to be the first “Independent Electoral Commission”. Whilst it is fully understood that there is need for a transitional provision (in that the future Independent Electoral Commission will be selected by a Senate which will be non existent prior to the new elections) it is shocking that the Constitutional Commission, having accepted the need for an independent authority, has not been more creative in ensuring an independent transitional electoral authority.