ZIMBABWE CONSTITUTION AMENDMENT (BILL No. 2) -2019

WRITTEN SUBMISSION IN ACCORDANCE WITH SECTION 328 AMENDMENT OF CONSTITUTION

ZAPU notes with grave concern about the implications of the proposed raft of amendments to the

Constitution, the supreme law of the land, which was overwhelmingly approved by 94.4% Zimbabwean citizens who voted in the 2013 referendum and how the Mnangagwa’s New Dispensation is undertaking the Constitution amendment process.  The international standard of good practice in democratic governance demands meaningful consultation with the people. 

The fact that this administration elected to conduct the consultations in the middle of COVID 19 pandemic restrictions on gatherings and travel shows a lack of sincerity. If the government is adhering to a maximum of 50 people per gathering, then the process can only be a sham.

It has become clear to the generality of Zimbabweans that those entrusted to run the affairs of the country on their behalf are failing to act in their best interests.

At every level of our society there is so much erosion and violation of people’s basic human rights and existence of crippling uncertainty in people’s lives. 

Questions are being asked why it is necessary to amend the constitution before its provisions have been implemented and tested. We have a country that is sinking and all we do is to tinker with the Constitution.

It has never been Zapu’s desire to stand in the way of any Constitution amendments that seek to iron out inconsistencies or conflicts that have been proven to be impediments to good governance and development as long as the justifications are clearly articulated and understood by the public to be necessary. Zapu’s submission is that there is no compelling justification for most of the proposed amendments. 

1. Clauses 2 to 8 seek to remove the constitutional provisions of Vice-President as presidential candidate’s “running-mate” in the run-up to an election and to retain the power of the president to appoint vice-presidents after the election. The notion of a “running mate” is progressive and does not have to be scrapped. It offers the office of the vice president the dignity and the respect that derive from public scrutiny during elections rather than just being hand-picked appointees who hold office at the president’s pleasure.
2. Clause 9 relates to the succession to the presidency if the elected president ceases to hold office before the end of her or his term. One of the appointed vice-presidents takes over to finish off the term or the former president’s party nominates a successor. This amounts to imposing a head of the state without the people’s mandate. The constitutional provision for vice presidents as running mates does offer some element of the people’s mandate.
3. Clause 10 increases the number of unelected ministers the president may choose to appoint from 5 to 7. Whilst this may bring in the necessary expertise to the executive there is the obvious danger of the cabinet being dominated by the president’s cronies with no electoral base and accountability to the people, thus undermining democracy.

Zapu advocates for a reduction of such appointments.

• Clause 11 seeksto extend the provision for the party-list women members of the National Assembly by another two years and to introduce a provision for the party-list representation of youths in the National Assembly. On the surface, this may be a plausible proposal as it puts a gloss over the underrepresentation of women and youth in the National Assembly and other State institutions and agencies.
  • One youth from each of the ten provinces is an insult to the generality of the young people who make up almost 60% of the population. Their inclusion in all levels of decision-making should be given better consideration. 
  • The constitution is clear about 50-50 gender balancing.  Chapter 2 – Section 17 states that the State must take all measures, including legislative measures needed to ensure that both genders are equally represented in all institutions and agencies of government at every level.  There has been no proper evaluation of how much this women’s quota experiment has contributed towards gender balancing in the legislature and executive or an investigation on how the system is impacting on the selection of women as election candidates on the ground.  Zapu strongly advocates for legislative measures that promote gender equity and women advancement at every level of society.
• Clause 12 disperses with the requirement for delimitation exercise to follow soon after the population census held every 10 years. Given the shambles and political manipulations in the previous delimitation exercises in 2000, 2005 and 2008 it is unlikely that ZEC will reasonably complete the exercise following the 2022 population census in time for the 2023 elections. Zapu is cognisant of ZEC’s quandary as changing timings of both elections and population census require amendment of the constitution, but there is no running away from the fact that delimitation is critical to an electoral outcome.  Therefore, consideration should be given to other options for obtaining population data.  However, Zapu strongly objects to the use of the voters’ register as the basis for drawing electoral demarcations for the following reasons:
  • Registering to vote is not compulsory in Zimbabwe and many people chose not to register for different reasons. There are also large area variations in the level of voter registration which affects the drawing of the electoral map.
  • Elected representatives do not serve registered voters only, they represent the whole population of their constituency or ward.
  • A related issue that needs serious consideration is that the size of our legislative structure is too large for our country and gobbles up a huge chunk of public expenditure. In 2000 we had 140 constituencies and now we have 210. If you add the party list for women MPs and proposed youth party lists, senators, and unelected presidential appointees the expenditure is colossal and unsustainable. We cannot just bury our heads in the sand and keep on spending and borrowing. We need to be bold and use the delimitation as a tool to rationalize our structures. Parliament needs to guide ZEC on reasonable numbers.
• Clause 13 seeks to do away with subjecting sitting judges to public interviews process before being appointed to a higher court.  The president is given powers, on the recommendation of Justice Service Commission, to appoint sitting judges to a higher court. Notwithstanding minor flaws of the current interview procedures, the system gives

the public confidence in the judicial system when they know the person sitting in judgment of serious cases has him/herself been through the rigger to prove their worth. There is no compelling justification for the amendments.

• Clause 14 seeks to extend the tenure of some judges beyond the retirement age of 70 years. Zapu does not see any justification for the extension when Zimbabwe has an abundance of younger and capable judges.
• Clauses 15 proposes a change of name of Civil Service to Public Service and clarifies the functions and responsibilities of Public Service. Zapu supports the amendment because it makes it clear that the Executive is responsible for the administration of the State and the Public Service is there to assist with the administration and delivery of public services.
• Clause 16 introduces new provisions for the appointment of Chief Secretary to the Office of the President and the Cabinet. It empowersthe President to appoint and set the terms and conditions of his office and those of his/her deputies. Notwithstanding that the Chief Secretary is the most senior public servant, Zapu believes that the President should be able to make the appointments on the recommendation of an independent body like the Civil Service Commission to avoid possible cronyism and patronage. 
• Clauses 17 and 19 create the office of the Public Protector to take over some of the functions of protecting the public against the abuse of power and maladministration by the State and public institutions and officers of those institutions from the Zimbabwe Human Rights Commission (ZHRC).  Zapu has reservations on the effectiveness of such an office.  There is no good reason why this valuable resource could not be under the ambit of the ZHRC.  
• Clauses 20, 21, 22, and 25 deal with the operationalization of the provisions of Chapter 14 of the Constitution.  Zapu welcomes the removal of the members of the National Assembly or MPS from the membership of Provincial Councils which will remove the conflict of interest. What should follow is the legislative framework give to empower Provincial Councils to run their own affairs with government support and become powerhouses of economic development. 

Unfortunately, 7 years have gone by without thinking through the implications of Chapter 14 provisions on the whole of governmental and legislative structures. Having removed MPs from Provincial Councils membership and empowered Provincial Councils to be drivers of economic development at the grassroots level there will be a limited role for MPs.

Rather than making patchwork amendments, there is a need to go back to the people with transformational changes that are based on the true state of our country and meaningful strategies for transferring power to the people.

Zapu strongly believes that the economic viability of each province is critical to the economic development of Zimbabwe as a unitary state. There may be some convergence between the government’s attempt at bottom-up development and Zapu’s model of Devolved governance that is based on the creation of economic viable provinces, equitable growth and service delivery. The current 10 administrative provinces are too small to be turned into productive economic powerhouses. 

There is therefore a strong argument for amalgamating provinces and reducing them from 10 to 5.  This would create a new structure and governance system that has people at the centre and not some government officials with no clear direction.

There are also a plethora of statutes and Acts of Parliament which govern different tiers of local authority that will have to be rationalised. The government is currently driving through with its decentralization and decongestion of administrative responsibilities agenda in a sea of confusion.

In conclusion, most of the proposed constitution amendment in this Bill has not been well thought out and unnecessary.

Sakhile Sibanda for

ZAPU Policy & Strategy Team. June 2020