On Constitutionalism and the Proposed Constitutional Amendments; Petina Gappah with David Tinashe Hofisi

PG David thanks so much to agreeing to this conversation. I have been so intrigued by your posts on Twitter on the proposed constitutional amendment, so I thought we should sit down for this conversation. The government is proposing amending the constitution in 27 different sections. There has been a lot of debate on this subject since the proposed changes were gazetted, so I thought we could go through the most far-reaching proposed changes with some thoroughness.

DTH Thank you so much for the kind words and this great initiative!

PG As a lawyer and a citizen, I have firm, even passionate views, about some of the issues raised but my views on the constitution are opinions, but not expert opinions. You on the other hand belong to the small band of actual experts who have either argued constitutional cases, or studied, taught and written about constitutional law in peer reviewed journals. Can you tell us a little about your expertise in this field, both at Zimbabwe Lawyers for Human Rights, ZLHR, and in your academic studies and writing? 

DTH I worked with ZLHR for seven years, focusing on constitutional and anti-impunity litigation. I argued some cases before the Constitutional Court; some of the judgements are out and more remain pending. My work also included monitoring the work of the Inclusive Government and thereafter, evaluating implementation of the new constitution. Since then I have been working on my doctoral thesis at the University of Wisconsin-Madison under the supervision of a pre-eminent South African Professor, Heinz Klug. I am investigating the institutional migration of constitutional courts from continental Europe to common-law Africa. I also double up as a graduate instructor.

PG Let’s start with the amendment that will affect delimitation. There is a proposed amendment to Section 161 of the Constitution to allow for the decoupling or separation of the drawing of constituency boundaries from the national census. Currently, the Constitution obliges the Zimbabwe Electoral Commission, ZEC, to draw up new electoral boundaries every 10 years, immediately after a national population census. Considering that the next census is due in 2022, one year before the election, what are the implications of this change?

DTH This part of the amendment is high regrettable. Delimitation accounts for changes in population demographics by ensuring that each voting district is proportionate to its voting population. It ensures the electoral outcomes remain representative in proportion to the population. The proximity to a census ensures that redistricting is as close to the latest statistical findings as possible. The last delimitation exercise was conducted for the 2008 harmonised elections. The variation in the size of constituencies in the 2018 election was so vast that more than half of the constituencies differed from the average by more than 20 percent.

PG This obviously means that some constituencies will have far larger populations than others so you will have constituencies that should have been split actually being represented by one MP, while another represents a much smaller population.

DTH That is the concern. We have such wide variations in the size of constituencies that Harare South constituency, with 76,425 voters, was over five times larger than Gutu North, with 14,198 voters. This points to the urgent need for delimitation to address under-represented constituencies. Such an exercise will be contingent on statistical findings and the amendment is largely at odds with this noble goal of securing electoral integrity.

PG Lets move now to the controversial running mate clause. The constitution currently provides for the joint election of the President and his deputies by requiring that, from the 2023 election onwards, Presidential candidates are to declare their running mates and run on a joint ticket. What are your views on the original clause, and on the proposed change?

DTH This is a political science question to the extent that we must explore what constitutes a vice president. Even though vice presidents are generally selected for their ability to assume the presidency, our constitutional framework suggests otherwise. The Constitution, even before 2013, allowed the President to pick his successor, but only to the extent that they could be the Acting President. The power to select the next substantive president resided with the president’s political party.

Vice-presidency thus bestowed an ability to carry out the functions of the presidency only during the subsistence of the actual president’s incumbency, or for the interim period immediately after its conclusion - pending the selection of a substantive replacement by the former president’s party. It was based on acknowledgement of the enormous political power and clout wielded by political parties as the conduit between the general public and elected office.  This was set to be replaced with the running mate clause in 2013, but was suspended by the constitution-makers for ten years until 2023.

PG To my mind, the running mate clause was one that always sat oddly with the notion that our constitution allows for two Vice Presidents. 

DTH Well the Constitution established a clear line of succession. In terms of section 92, the first vice president was next in the line of succession in the event of the president’s death, resignation or removal. The effect of this section would have been three-fold. 

This would have transferred the power to appoint the substantive successor from the party to the party president. So the first tension introduced by the running mate clause is between the candidate and his or her political party in the tussle to define who will be the future incumbent.

The second effect is to make the vice presidency incredibly powerful since that vice president, as running mate, would share the president’s popular mandate as constitutionally recognised and legitimate presidents-in-waiting, and be very difficult to remove from office. Vice presidency would mean a legitimate right to see out the term of the former principal. 

This is linked to the third effect, which is increased tension within the executive since the vice presidents would stand to benefit directly from the death, resignation or removal of the president. At the heart of the running mate notion is a trust issue, about whether a president has sufficient confidence that his deputies will not be tempted by the benefits of undermining his or her presidency. 

So the tensions that would likely be generated at party level and within the executive convinced the main political parties to suspend the running mate provision and opt for the current set up in which the vice president that last acted as president continues to act until a substantive replacement is seconded by the party. Without a clear successor within the executive and with the political party retaining powers of appointment, these tensions were avoided, at least on paper.

PG So we would effectively be going back to the past by removing this clause?

It is important to understand this in the context of historical precedent. Vice presidents in Zimbabwe, at the national and party levels, have not been understood as substantive successors of their principals. Instead, they have a semblance of high ranking administrative officers who assist the president during his incumbency and at the national level, stabilize the transition period when a successor is appointed by the president’s party. That is the extent of their mandate.

This is markedly different from countries with the running mate clause like the US where the vice president assumes office if the president cannot serve out his or her term. Botswana has a similar clause in their Constitution whilst South Africa has generated a practise of deputy presidents assuming the presidency. Those countries are distinguishable from Zimbabwe to the extent that they have a strong tradition of succession. Their presidents have short time-horizons in power. Thus, the vice or deputy president sees out the mandate of the former president in that designated period without facing the same intra-party tensions. This is what the 2013 Constitution sought to import through the term limited presidency – a short time horizon in power. This did not address the lingering problem of political parties, where leaders still retain very long time- horizons in power.

PG Do you believe that this amendment is a way for President Mnangagwa to avoid identifying a successor as early as 2023? And from a pragmatic point of view, isn't this something that the MDC could actually support, as it also makes their own succession issues more open? More importantly, should the current political dynamics in the two biggest parties, particularly their fractures and factions, matter at all in assessing this change? 

DTH None of the major parties know how to effectively deal with succession. It undermines the personality cults built around their leaders and causes disaffection and further fragmentation. I would hazard to say there is a bipartisan consensus to avoid the disruptive consequences of naming a clear successor. This explains the proliferation of vice presidents in the main opposition towards the end of Morgan Tsvangirai’s term and to the present day.

In fact, the treatment of Thokozani Khupe is further evidence of how the vice presidency is imagined as having no role beyond the term of the substantive president. It also explains why Joice Banda faced resistance in 2012 and had to fight to ensure implementation of the running mate clause in Malawi following the demise of Bingu waMutharika. Since she had fallen out with her party, it is a graphic depiction of the tension that arises between the power of the party versus the constitutional line of succession on the other. Her subsequent electoral defeat at the hands of Peter waMutharika highlights the power of her party and weakness of certain constitutional imperatives in the absence of popular buy-in (which some may have feared in respect of Dr. Khupe).

This is comparable to the dismissal of Joyce Mujuru and ED Mnangagwa from the office of vice president. Both were hounded out of office for, arguably, displaying the ability or willingness to be potential successors to the incumbent. Thus, what is central feature in the vice presidency in other context may very well be grounds for dismissal in Zimbabwe. President Mnangagwa was a powerful vice president and is likely wary of fortifying a position which enabled him to upstage his principal. Robert Mugabe similarly defanged his erstwhile position of secretary general of his party. For these reasons, I suspect that the removal of this provision, just like its suspension in 2013, will enjoy bipartisan support (even if it is not publicly declared).

PG The Constitutional Amendment Bill also proposes that the Prosecutor-General be appointed by the President on the advice of the Judicial Service Commission without public interviews. The proposed changes appear, to my mind, to interfere with prosecutorial  independence. What are your views? Could we take a charitable view and say that this change is linked to the current frustration around corruption cases, and how slowly they are proceeding?

DTH I would say there’s something more profound at play, though President Mnangagwa has been vocal about his disappointment with the cases of corruption. The 2013 Constitution separated the prosecuting authority (PG) from the office of the Attorney General (AG). In so doing, it introduced greater independence in the appointment process and operational functions of the PG.  So whilst the AG serves at the pleasure of the president, the PG is appointed and removed in the same manner as a judge and enjoys institutional independence.

The amendment significantly undercuts the independence of the appointment process without necessarily altering institutional independence. The PG would, according to the amendment, be appointed on the advice of the Judicial Service Commission (JSC). This means the President is required to act on the JSC’s recommendation. He does not have the room to just listen and ignore. Whilst this is still an important check on the President’s powers, it will be done without public interviews.

PG Can you clarify that point, that the amendment undercuts the independence of the appointment process, but not necessarily institutional independence?

DTH By that I mean that the PG still enjoys constitutional protection from interference from anyone. So prosecutorial discretion and autonomy is retained. What is removed is the public advertisement and interview process. This undermines openness, transparency and democratic accountability. A public interview process allows for open scrutiny of candidates’ records and a rigorous monitoring of whether the most suitable candidate will be appointed. A closed process between the President and the JSC suggests that important details are concealed from public view and thus reduces institutional confidence.

The history also warrants reflection. The position of PG, and AG before it, has had very high turnover going back to the days Andrew Chigovera and Sobuza-Gula Ndebele. Some people believe the head of the executive branch should have the ability to appoint his chief prosecuting officer because it enables him or her to fulfil certain electoral promises and thus make prosecution democratically accountable.

You may have noticed how President Obama worked with Eric Holder as his AG to ensure that laws he found disagreeable, such as those against the LGBTI community or criminalizing marijuana, were not prosecuted. The experience in Zimbabwe, due to long term ZANU PF hegemony, has been the singular use of prosecution to decimate the opposition.

This is why the constitution-makers sought to create a buffer between the executive presidency and the prosecuting authority so that the decision to prosecute is not motivated by entrenched partisan interests. This buffer will be significantly chipped away by the amendment since the public will no longer be able to monitor the process, but instead rely entirely on the virtues of the JSC – itself a profession body, but which has a significant membership drawn from presidential appointees. This might possibly align future PG’s more closely with the ideology of the appointing president.

PG Now, let’s talk about the proposed changes to the appointments of the members of judiciary. According to the proposed changes, the tenures of the Constitutional Court and Supreme Court judges will be extended after reaching the age of 70, for up to five years subject to a favourable medical report. This has been interpreted as a clause to allow the current Chief Justice to stay on. I said in a comment on Twitter recently that prolonging the Chief Justice's term sends the unfortunate message that no-one else on the Bench can be trusted or is good enough to be Chief Justice! More seriously, isn't there a clause in the constitution that says any proposed changes to term limits do not affect present term holders? Will this have to be amended too? 

DTH That is correct and many people have suggested that the entrenchment of term limited clauses means this part of the amendment might require a referendum and also cannot benefit the incumbents. However, it is only constitutional court judges who are term limited, and the amendment does not change its terms. They will continue to serve one non-renewable term of not more than fifteen years. It is only when their tenure can be extended within the fifteen-year term limit that they can continue to sit on the Constitutional Court or be appointed to the Supreme Court until the age of 75 years. Since the actual term limit remains unchanged, the reference to non-benefit to incumbents or a possible referendum becomes irrelevant. In other words, if the term of office of judges had been increased to more than one, or the limit extended beyond fifteen years, then a referendum would become necessary. 

But to the earlier point, many people who were disappointed by the result of the 2018 election petition believe this provision is meant to benefit the Chief Justice. This seems at odds with the fact that the petition was unanimously dismissed. This means if the President were indeed motivated to have a chief justice whose views are represented by that decision, he would have eight other candidates from that bench. The late Chidyausiku also dismissed the petition by Morgan Tsvangirai in 2013 but his tenure was not extended. 

In general, it is amendments which reduce the benefits of an office, or reduce its tenure, which are viewed as contrary to the rule of law. If the amendment were indeed specific to the Chief Justice and granted him a benefit which is not accorded to other judges generally, then it would be more prone to such criticism. What would be more helpful would be substantive criticism of any of the 138 pages of the presidential election petition judgement than singular focus on its authors. It must not be forgotten that the elevation of the current Chief Justice to that role was celebrated in all quarters including by the leader of the main opposition party. The critique of his work is largely attributable to disaffection with that single decision which remains without substantive. 

PG I also know you are well versed in comparative constitutional practice, so I want to take you to the United States for a minute.  More broadly speaking, is there an argument to be made for us to adopt the kind of judicial terms in the United States, which are life time appointments, meaning that in principle, judges should be immune to political interference once on the Bench?  In theory, a lifetime appointment immunises judges from political interference. Is this where Zimbabwe should be heading? Should we accept what is in effect a lifetime appointment for all Constitutional and Supreme Court judges? 

DTH The United Sstates remains something an exception in respect of its life tenure for federal judges. This has not really been replicated by any other jurisdiction. But the point is that if one seeks to insulate the judiciary from influence of the executive, then it makes sense to address questions of a judge’s post-retirement income by securing incumbency for life. It is generally acknowledged that judges start looking to the executive and/or private sector for occupation after retirement and this can influence their decision making.

However, most countries fear that life tenure creates a disjuncture between the evolution of societal values and that of old judicial officers retained for life. Some argue this sort of tenure was created when life expectancy was not as high as it is today. For this reason, the framers of the US judiciary did not imagine that judges would sit on the court will into their 80’s and 90’s. This explains constitutional requirements for retirement.

The limitation of judges of the highest courts to non-renewable terms originates from continental Europe and is designed to remove the incentive to please the executive in anticipation of term renewal. The other problem with life tenure for a country like Zimbabwe is the history of a long-serving president and a dominant political party. In the very least, a judiciary which is renewed more regularly is better at operating as a check on the executive, more so after the experience of a president who believe he enjoyed life tenure!

PG The major flaw in the United States process is of course that the appointment process involves highly partisan politics, as we saw with the most recent controversial appointment of Supreme Court Justice Brett Kavanaugh, and indeed, previous appointments of Justice Clarence Thomas and Justice Sonia Sotermayer among others. It is why there is worry that if Justice Ruth Bader Ginsburg retires or expires while a Republican president is in office, it could swing the Supreme Court to the right for generations.

DTH That is certainly the case. The process of appointing federal judges in the United States has become increasingly partisan, and life tenure has not been a foundation for judges to move from their ideological vantage points based on facts presented. To the contrary, it has entrenched ideological values to the extent that there is fierce political gamesmanship in the appointment process as various actors seek to secure their values for generations. This is another reason why life tenure has not been popular around the world and would not work in the Zimbabwean setting.

PG One of the proposals that I am ambivalent about is the amendment of Section 104 (3) on the Appointment of Ministers and Deputy Ministers. This change will expand the number of non-constituency MPs that can be appointed to cabinet, from the current 5 to 7. This still leaves us in an uneasy compromise between the Westminster model, where the Cabinet of Ministers is composed of sitting MPs, and the executive presidency model, where the Cabinet of Ministers or Secretaries, is entirely separate from Parliament. Which is the better model?

DTH It always depends on what one wants to achieve as the different systems work towards different outcomes. Like many settings with a colonial history, our system fuses various models. The law-making process in Zimbabwe actually tilts more towards the parliamentary rather than presidential system. It is the Cabinet that drives the law making process. This is why ministers and deputies are largely drawn from the pool of elected representatives. They exclusively move fiscal motions and introduce money bills, the latter which is given such a broad definition in the Constitution as to cover almost all draft bills.

In the American system, laws can emanate from anywhere including Congress. So the President’s Cabinet Secretaries have no need to be Members of Congress. Congress can refuse to pass the President’s budget and effectively shut down the government. In Zimbabwe, the President is empowered to dissolve parliament if it does not pass his or her budget. It is not easy to pick one or the other since the system incorporates both. However, the law-making process would need to change radically and Parliament be sufficiently empowered before Cabinet could be appointed entirely from outside Parliament.

PG As I said, I am ambivalent on this. Part of me wants a technocratic cabinet, like that in Kenya, or indeed, as you say, like the United States. I like the model of a technocratic cabinet that is independent of Parliament mainly because Ministers are then chosen on the basis of competence, and it also means Ministerial appointments are not treated as political favours. 

DTH This is another fundamental question of political science. Just as we asked what is a vice president, this is a question of what constitutes a cabinet minister? Those who think of it as purely technocratic favour a cabinet appointed outside of the legislature, something that Nkosana Moyo said he also prefers. However, those who view politics itself as a profession with a well-defined and demanding skill-set are inclined towards ministers chosen from the people’s elected representatives. It is also supposed to make ministers more easily answerable to the people’s elected representatives exercising parliament’s oversight role. Further, one can distinguish the political head of a ministry from say, the permanent secretary. The lack of political and parliamentary skills by purely technocratic cabinets has sometimes been a serious handicap. You may have noted how candidate Barack Obama chose Joe Biden as his running mate to benefit from the latter’s decades of experience in the Senate.

PG But the reason I am ambivalent in the other direction is that I fear that the half-way house we have adopted, and expanding the number that can be chosen from outside Parliament means that we will see less technocratic appointments, but more accommodation for old friends and comrades who will have lost elections. 

DTH That really depends on one’s view of the efficacy of such institutional arrangement. There is nothing conceptually that would stop a president who appoints ministers outside the legislature to give positions to his friends, family or even his or her spouse! Whilst the legislature normally vets such appointments, the institutional choice of appointing outside the legislature itself would not produce the outcome of appointing technocrats.

A president who is inclined to appoint technocrats on one side of the spectrum or friends on the other side of the spectrum is certainly enabled by such an arrangement. So appointing from within the legislature may limit the pool from which ministers can be appointed, but is probably meant to balance that with the interests of the representative and legislative role that such ministers are expected to play.

Many who are opposed to the increase of ministers from 5 to 7 have a reasonable aversion to a bloated government. In an era of vaunted austerity, the number of government ministers is actually increasing. It would at least be better if the increase was within the rank of ministers who are accountable at the ballot. Increasing the number of ministers who are not even accountable to the electorate looks like it is meant to serve the president’s own interests.

           

PG A proposal that should not be at all controversial across party lines is prolonging the life of the women’s quota. The proposal is to extend for another two terms, so for 10 years, the quota that allows 60 women to be elected to Parliament, not through direct election, but on a party list proportional representation basis.  I am sure you recall that every single observer report in the last election, including even the more accommodating SADC and AU reports, were pretty scathing on the participation of women in this election. I am in principle in support of any moves to get women to the table, even if some may seem tokenistic. What is your view on prolonging the life of the women's quota? 

DTH I agree with the idea of boosting representation of historically marginalized groups. I also think it is always tricky to vie for the quick fix which only alters the quantitative value. This might create a veneer of meaningful participation without addressing the underlying qualitative causes of gender disparity in representative politics. The time-limited nature of the provision was probably meant to obviate this resort to manufactured outcomes. In other words, the constitutional requirement should be in tandem with efforts to organically increase representation. If the efforts remain ongoing then the extension is laudable. If no such efforts are bearing fruition and the provision is the panacea to the disparities in representation, then it may warrant a future re-evaluation of its efficacy.

PG Then there is the youth quota proposal. It expands Parliament by adding 10 more members, on a province basis, and also, like the women’s quota, on the basis of a party list selected on the basis of proportional representation.  Again, I am not opposed to it in principle, but could this not have been built into the women's quota? For instance, by ensuring that 10 of the women’s quota are for women under 40? We have gendered the idea of who is a youth in politics, especially when we refer colloquially to “mayuthi”, but the categories of youth and women are not mutually exclusive – a person can be both a “youth” and a woman!

DTH It might not be easy to justify conflating women’s empowerment with youth empowerment. The issues are not identical so it might be problematic to present one as representing the other. Many positions have minimum age requirements which preclude young people so efforts at greater inclusion are laudable. This does not address the broader problem of an ever-increasing parliamentary membership. Inclusivity can be worked into the Constitution without necessarily increasing the burden on the public purse. That is the worst part of an otherwise progressive provision.

PG The Bill also proposes to remove Members of Parliament from membership of provincial councils, merge the provisions relating to provincial and metropolitan councils by removing the special provision relating to the latter in that they will no longer be chaired by mayors, but be elected in terms of Section 272, just like provincial councils. It also provides for the election of 10 Members of Metropolitan Councils by proportional representation. I am not entirely clear on these proposals, and their relationship to devolution. Can you explain it to us? 

DTH The real change in the amendment is the removal of Members of Parliament from the provincial and metropolitan councils as well as removal of mayors from the automatic position of metropolitan council chairpersons. The argument from government is that duplication of roles cannot be justified. It certainly makes sense for members of the national legislature to be excluded from provincial bodies which were created to enhance local, rather than national, participation in governance. The government also stated that members of parliament could not be making laws and executing them in their capacity as members of these councils.

More broadly, this part of the amendment will need active monitoring since the government has dragged its feet regarding implementation of devolution. Decentralized government tends to function easier when autonomous governments come together to form one union (e pluribus unum) rather than when one central government must cede power to decentralized units of government (ex uno plures). Unitary governments tend to reproduce structures of centralized power and control. This is why there must be a continuous monitoring of this process to decipher whether these are steps to implement devolution or to continue delaying the constitutional imperative for local governance.

PG I think if you look at the more technical individual proposals, you will find merit in some of them, such as the creation of the office of the Public Protector, but I just have a feeling of great unease at amending a constitution that has barely been implemented. What are your views?

DTH I think it always depend on the content of the amendment. The rights in the American context are all by amendment for instance. The Public Protector is restored to focus on administrative conduct of ministries, their departments and any other body designated by parliament. It is another platform for redress when recourse to the courts is not available. If properly implemented, this provision could be a useful avenue of redress for the people who suffer injustice at the hands of government ministries. The role of the Public Protector is closely related to that of the Zimbabwe Human Rights Commission which retains the power to take over any investigation by the Public Protector. This will obviously require synergies and institutional harmony between the two bodies.

PG I want to push you a little on that last response. You are absolutely correct to say that the rights in the US constitution were established through amendments. The first ten amendments for instance set out the Bill of Rights, both individual liberties and the rights of states within the structure of the federal government. Then came the earth-shifting Thirteenth Amendment banning the owning of slaves, the Nineteenth Amendment guaranteeing the rights of women to vote, and other progressive changes. I won’t mention Prohibition, the amendment banning alcohol! These Amendments were made over time and are in effect a history of social change and progress in the United States. But here, government is making one single amendment to 27 separate clauses, and they are not amendments that expand the rights of people, but that rather seem to expand the bureaucratic powers of the state or that create jobs for the boys.

DTH This is part of the problem when constitutions are negotiated by coalition partners: they are vulnerable to change if one partner attains the requisite majority in the legislature. It would certainly be preferable to have constitutional implementation rather than elite-driven constitutional revision. In terms of our Constitution though, we all ceded our constitution-making powers to parliament after enactment.

In other words, We the People became We the Elected Representatives, except to the extent that we retain veto points through the conduct of a referendum. Those provisions, like those relating to constitutional rights and agricultural land, were so made that we retain an active voice in the constitutional conversation. Other constitution-makers go so far as to make certain parts of the constitution unamendable or immutable. That is not a choice we made. We left the legislature with the power to change most of the constitution if they have the requisite majority. This leaves us with the current scenario where most of the constitution can be amended and our recourse is through our elected representatives whom we have to convince to vote one way or another. That’s a broader conversation regarding institutional design to ensure constitutional durability.

Thank you very much David for this thorough and riveting discussion. Very best wishes to you in completing your PhD. I do hope you develop some of the ideas here into a peer reviewed journal article, and that we will have from you soon a book on constitutionalism and constitution making in Zimbabwe!

DTH Thank you so much – it has been an absolute pleasure.

This interview originally appeared on newzwire and is accessible here: https://newzwire.live/on-constitutionalism-and-the-proposed-amendments-petina-gappah-in-conversation-with-david-hofisi/