The ManicaPost
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.
◆ The writer is an Opinion Researcher, Author and Educationist. He can be contacted on: Mobile: +263772459702 Email: [email protected]
Web: www.zimglobalmedia.co.zw
