Fortifying Zimbabwe’s ‘Imperial’ Presidency? The Proposed Second Amendment to the Constitution
The ruling ZANU-PF party seeks to cancel, through amendments, key concessions
made during the negotiated 2013 constitutional reform process. The proposals to
empower the President in the appointment of key executive, judicial and other
independent officers, blandished with token advancements in women and youth
representation, raise issues of effective mechanisms to ensure sustainability
of negotiated constitutional outcomes in the face of resurgent dominant majorities.
On 31 December 2019, the Government of Zimbabwe
published the Constitution of Zimbabwe Amendment
(No. 2) Bill, an
omnibus bill containing
a raft of changes ranging from the appointment process of judges to the
composition of Cabinet and Parliament. Constitutional amendments require
approval by two-thirds of
each house of Parliament, which ZANU PF can
muster without reaching out to the opposition. This drastically reduces the
possibility of securing concessions and compromises. Criticism of
the bill has been swift and primarily focused on the widening scope of presidential powers,
undermining of democratic
accountability and burgeoning size of central government.
The 2013 Constitution was enacted with
bipartisan support. It was the culmination of a negotiated process between ZANU
PF and the two factions of the MDC. Later that year, ZANU PF restored its
two-thirds majority in Parliament and quickly began working on the first amendment to the Constitution which was
enacted in 2017. The first amendment changed the appointment process of three
key judicial officers: the Chief Justice, Deputy Chief Justice and Judge
President of the High Court. The original version of the 2013 Constitution
subjected judicial appointments to a public interview process to increase
public confidence in the administration of justice. The first amendment exempted
these three judicial officers from public interviews, with the President making
appointments after non-binding consultations with the Judicial Service
Commission (JSC).
Further undermining judicial and prosecutorial
independence
The proposed second amendment would enable the
President to promote sitting judges of the High Court and Supreme Court on the
recommendation of the JSC without any public interviews. According to the Government of Zimbabwe, appointment of a judge following public interviews obviates
the need for further scrutiny in the process of promotion. Interviewing sitting
judges would, the government argues, potentially jeopardize their ability to
command respect, a view which has been endorsed by the JSC.
However, public interviews had become a crucial
site for evaluation of judicial performance, with
judges’ records of service laid bare for public examination. It also allowed
for rigorous monitoring of optimum candidate selection. Further, many members of the JSC, including
the Chief Justice, Judge President and Attorney General, are presidential
appointees. The amendment would establish a closed and secretive appointment process and thus protect sitting judges at the expense of
democratic accountability.
Poignantly, the Supreme Court will be formally
separated from the Constitutional Court in 2020, creating several vacancies in
the superior courts. Some judges of the High Court and Supreme Court were
appointed prior to the new constitution and would be eligible for promotion without
the public scrutiny it contemplates. To that extent, the amendment would
increase executive latitude in key judicial appointments whilst severely
undermining the democratic values underpinning the original 2013 Constitution.
The proposed amendment would also provide
judges of the Constitutional and Supreme Courts an option of extended tenure
beyond the retirement age of 70. Annual extensions would be permitted up to a
period of five years subject to medical certification of physical and mental
fitness. This has led to fears that judges of these courts will become more
pliant to the executive. Further, annual extensions would be subject to acceptance of the medical certificate by
the President, following consultations with the JSC. The JSC has conceded that this may be problematic, suggesting that
there should be an optional five-year extension applicable to all sitting judges on the recommendation
of, rather than after consultation with, the JSC.
The second amendment would also remove the
requirement for public interviews in the appointment of the Prosecutor General.
The 2013 Constitution separated the prosecuting authority from the office of Attorney
General. It establishes the Prosecutor General as an independent office to
address the history of partisan prosecutions. Thus, the Attorney
General continues to serve at the pleasure of the President, whilst the
appointment and removal of the Prosecutor General is identical to that of a
judge. The second amendment would alter this scheme by empowering the President
to appoint the Prosecutor General on the advice of the JSC without any public interviews.
Consistent with the proposed amendments to judicial promotions, these provisions would undermine the democratic
values of openness, transparency and make appointment the exclusive preserve of
high ranking political and judicial elites.
Scrapping the running mate clause and more
non-parliamentary
ministers
The proposed amendment would increase
presidential powers in two more significant ways. It removes the presidential running mate clause and broadens the
president’s scope to appoint non-parliamentary ministers. Under the 2013 Constitution, the first vice president succeeds the president in the
event of death, resignation or removal. Further, vice presidents are elected on
the same ticket as the president. The procedure for their removal is as onerous as the
process for removal of the president.
These provisions were
suspended for the first ten years of the Constitution, partly due to insecurities in ZANU PF and MDC
related to empowering their party Vice-Presidents, who also happened to be
women. The advanced age of ZANU PF leader Robert
Mugabe and long incumbency of MDC President Morgan Tsvangirai made their
supporters shirk at the possibility of entrenching a parallel centre of power
in ascendancy towards party leadership. The military coup in 2017, and
subsequent elevation of its key architect to the position of Vice President has
led to renewal of these erstwhile fears.
President Mnangagwa will,
according to the Constitution, run for his last term in 2023. A running mate
would not only become a powerful vice president with a popular mandate, but
also an independent centre of power who could fan factionalism in party and state.
In order to ensure the political party remains the key determinant of presidential
succession, the ruling party seeks to retain the regime of at-will appointment
of vice presidents who are more of assistants to the incumbent than deputies who are heirs-apparent.
The 2013 Constitution
allows the President to appoint up to five non-parliamentary ministers and
deputy ministers. The legislative and political duties cabinet ministers play necessitated this balanced
approach. Zimbabwe currently has 35 ministers and
18 deputy ministers. The second amendment would increase the number of
non-parliamentary ministers and deputies to seven. Although the amendment expands presidential
discretion, the proposal does not pose peculiar structural challenges and is
within the spirit of striking a balance between appointments wholly within and
entirely outside of Parliament. However, it signals a further increase in the size of government. The economic stagnation in
Zimbabwe would lend credence to a decrease, rather than an increase, in the
government’s wage bill.
Reduced parliamentary
oversight over international agreements
This amendment would also reduce parliamentary
oversight of agreements between Zimbabwe and international organisations, defined
as inter-governmental organisations. Agreements between the State and foreign
entities and such organisations would not require parliamentary approval before
imposing financial obligations on Zimbabwe. This is deleterious to
representative democracy. Taxpayers bear the primary burden of financial
obligations acquired by the State. For this reason, they are empowered, through
their elected representatives, to have veto powers over agreements with
financial implications. This proposed amendment foments fears of shaddy deals with
foreign entities with the effect of ballooning the
public debt.
Voter inequality: Delinking population census
from constituency delimitation
The proposed amendment would remove the
requirement for reconfiguration of voter constituencies as soon as possible
after the population census. Constituency delimitation was last conducted in
2008 following the 2002 census. Consequently, the variation in size of constituencies in the 2018
elections was so vast that more than half of the constituencies were over the
constitutionally mandated upper variance limit of 20 percent. This was unfairly
skewed against opposition strongholds in urban areas which grow rapidly from
rural to urban migration. The next population census is scheduled for 2022. The
Zimbabwe Electoral Commission (ZEC) is concerned that it may not be able to conclude
the delimitation exercise six months prior to the elections in 2023, as required
by the Constitution, if it can only do so after the conclusion of the census.
This is at odds with the fact that delimitation could have still been conducted
in terms of the 2012 census. Nevertheless, the Government seeks to remove the
requirement altogether.
Retaining women’s
representation, a new Public Protector, reconstituted provincial councils
The proposed amendment also contains provisions
whose object is laudable. It extends the life of the sixty proportional
representation seats reserved for women by another ten years. It also introduces
youth representation quotas, with ten seats reserved for youths, aged
twenty-one to thirty-five years, on a proportional representation system. Only
twenty-six of the 210 directly elected seats in the National Assembly were won
by female candidates in the 2018 elections. The sixty
seats reserved for women have thus been crucial to increasing women’s political
participation.
The amendment would reintroduce the office of
the Public Protector to focus on administrative conduct of government ministries.
The Public Protector was
replaced by the Zimbabwe Human Rights Commission in the 2013 Constitution. The Public Protector would be appointed by the
President after consultation with the JSC and Parliament’s Committee on
Standing Rules and Order.
The composition of provincial and metropolitan
councils would also be changed by removing sitting members of Parliament to
avoid duplication of roles. In addition to persons
elected to such councils and heads of local authorities, all members of
Parliament from the relevant province are also council members. The councils
were modelled as aggregates of provincial representation, but the amendment will
limit membership to heads of local authorities and persons elected to the
councils through a system of proportional representation.
The fortification of Zimbabwe’s imperial
presidency?
The second amendment bill is now in the process of public
consultation. The public consultation process for the first amendment had no effect on the content of the bill, though
misgivings by such powerful actors as the JSC might result in tweaks to some provisions of
the current bill. The Lancaster House Constitution, which preceded the 2013
Constitution, was amended nineteen times before it was repealed. Many of these
amendments were necessary for the removal of racist provisions retained at the
behest of the white settle regime during the transition from colonial rule.
However, the amendment process was also weaponized
to create an all-powerful presidency largely insulated from democratic
accountability. The first amendment to the 2013 Constitution, and the mooted
second amendment, continue this subterfuge. The protection of the representative rights of
women and young people would be scant consolation for the overwhelming increase in presidential
powers. On the other hand, the failure
to protect such crucial provisions as the judicial appointment process from
alteration by parliamentary supermajorities warrants further reflection. The
Zimbabwean experience demonstrates that constitutional drafters and opposition
groups should not only focus on securing concessions at the time of
constitution-making, but also devise mechanisms to effectively preclude their
nullification by resurgent ruling parties.
This article was
commissioned by International IDEA and was
originally posted on ConstitutionNet,
IDEA’s online knowledge platform supporting constitution builders globally.
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