Constitutional Amendment NO.2...the death of Constitutionalism in Zimbabwe?

This week, the Parliament of Zimbabwe released a schedule on the holding of public hearings for the proposed amendments to the constitution starting on the 15th of June 2020 in some parts of the country. The public hearings despite that the country is currently in a lockdown due to the deadly Covid-19 pandemic with restrictions such as social distancing, a limit of 50 people per gathering to mention but just a few. Despite all these challenges, the Mnangagwa administration seems desperate and determined to go ahead with this process where citizens’ participation will be limited. The ruling ZANU PF party’s appetite to amend a constitution which has not been fully implemented is rather shocking and only shows that the party is interested in power consolidation and nothing else.

Zimbabwe in 2013 August ushered in a new constitution that replaced the old and colonial Lancaster House authored constitution. The new constitution was much touted as a “people-driven” as was witnessed by a 94.4% endorsement it received during the referendum. That was a true testimony to the high point of collective effort, cooperation and consensus that Zimbabweans had reached towards coming up with a constitution. Surprisingly, notwithstanding that, the Mnangagwa led government on the 31st of December 2019, published the Constitution Amendment No.2 Act bill in the Government Gazette Extraordinary.

The amendment will put into effect 27 adjustments that the ZANU PF government wants to make to the constitution. The constitution has to be respected as a sacred document that commands the respect of citizens, countries like America in 200 years has made 27 amendments to its constitution, countries like Germany since 1948 made 68, India never amended its constitution and yet Zimbabwe in 6 years after its adoption several attempts have been made.

What boggles the mind most is that the government wants to amend the constitution without fully implementing it and aligning the old laws to the current constitution. A closer look at the proposed amendments are a direct threat to the spirit of constitutionalism and democracy in Zimbabwe should the parochial amendments see the light of the day. Of particular importance to the proposed controversial amendments is the repulsion of the running mates, the appointment of Judges of higher courts, Prosecutor General, increasing executive powers to appoint more ministers outside parliament and allowing the president to enter into international treaties without going through the parliament among others. By so doing, the amendments will increase the powers of the executive, compromise judiciary independence, undermines the oversight role of parliament, undermines the doctrine of separation of powers, violation of basic human rights and above all signalled the death of constitutionalism and democracy as shall be discussed below. The proposed amendments are a charade to defeat the will of the people to suit partisan interests which are contrary to the internationally recognized ethos of good governance and democracy.

Of running mates and basic human rights

The 2013 constitution envisaged that during election two Vice Presidents shall be elected by the people in a similar manner the President is elected. The provision was upholding the basic fundamental human rights of citizens to have a right to choose their leaders and also the right to self- determination. Amendment No.2 seeks to replace the aforementioned clause with the one that allows only the President to be elected during the election then will appoint two deputies who serve at his/her mercy pleasure. The move will be total annihilation of the aforesaid rights that were upheld by the initial clause. As such, the proposed amendment on this aspect disempowers citizens of their rights that they have to enjoy. Constitutional law expert Alex Magaisa posits that the development was driven by ZANU PF factional wars that are between Mnangagwa and his deputy Chiwenga who is believed to be vying for the presidency. According to Magaisa, Mnangagwa is pushing these amendments to the constitution in a desperate bid to clip his deputy’s wings so that he will continue deputising at the mercy of Mnangagwa.

Powers to appoint Judges and Prosecutor-General

As prescribed by the constitution Judges of the high and supreme courts were to be subjected to public interviews in order for them to occupy those offices. The arrangement was premised on the need to have an independent judiciary to avoid having a single appointing authority but a commission. Similarly, under the current constitution, Prosecutor-General is supposed to undergo the same process during selection. Amendment no.2 of 2019 will give powers to the president to appoint judges of higher courts acting on the recommendation of Justice Commission. The mandatory retirement age of judges was set at 70 years and the proposed amendments increase it to 75 years on the basis that the judge is still mentally and physically fit to hold office. In line with the extension of retirement age, Chief Justice Luke Malaba will be the first beneficiary. If the amendment sails through, the new law will have no effect on the tenure of office of the Chief Justice, his deputy and the current judges of the Supreme Court who must all retire once they reach the age of 70. The move is just an open reward to him for the tremendous role he played during the Constitutional Court challenge of 2018 Presidential plebiscites where he upheld the victory of Mnangagwa regardless of irregularities that were raised by the opposition. The powers given to the president by the amendment no.2 compromises the independence of the judiciary just like what happened in 1987 when the Westminster system was dumped for the presidential one.

The autonomy of the President to enter into international conventions without going through parliament.

The amendment will give President the powers to enter into international conventions and treaties with organisations without going through the parliament as per the requirement in the current constitution. The initial arrangement was in line with the promotion of the oversight role of the parliament whereby it was supposed to scrutinize the rationale of any international treaty to be signed on behalf of their constituencies, unfortunately, it’s no longer the same under the new Bill. Stripping the powers of the parliament not only affect the role of the legislature but it further gives the president too much power which could be the reason why from 2017 to 2019 the Mnangagwa administration gobbled USD$ 2 billion from state coffers. The president has the habit of borrowing money from institutions like AFREXIM and AFDB banks without following procedures that is why they are now using amendment no.2 to sanitise their shenanigans. No wonder why Zimbabwe’s external debt is hovering around USD$ 11.5 billion and internal debt of USD$ 8.5 billion because the president has been entering into conventions willy-nilly borrowing money to fund his political manoeuvres. To further worsen the situation the International Monetary Fund (IMF) recently issued a damming report on Zimbabwe pointing out the need to address governance, corruption challenges and respect of the rule of law in order to access financial assistance. The move was direct disapproval of constitutional amendments. Consequently, the amendment is unconstitutional.

Undermining the doctrine of separation of power

Consequently, Absolute power corrupts absolutely.

There is a clear sign of lack of separation of powers because the amendments are executive driven to consolidate power at the expense of constitutionalism and democracy. The executive has powers over all arms of government and it is not subjected to checks and balances a development that has led the economy to nose-dive since the 2017 coup. Given that scenario, tyranny and totalitarianism will become the order of the day in Zimbabwe. Constitution Amendment No.2 Act 2019 is only meant to consolidate power for Mnangagwa by increasing his executive powers at the expense of constitutionalism, democracy and human rights as discussed above.

Conclusion

The spirited effort that the ZANU (PF) government is showing towards the amendment of the yet to be implemented constitutional provisions meant to concentrate power in the hands of the executive should be used towards aligning more 200 acts that are pending since 2014. There are a number of critical reforms that the government should be seized with that strengthen constitutionalism and democracy such as electoral, media, security sector, monetary and local governance reforms. These are urgent reforms that call for prioritization because they uphold democracy. As a way forward the people of Zimbabwe have to take the government back to the 2000 referendum where the people resoundingly cast a no vote for the proposed constitution. During the upcoming public consultations, Zimbabweans should turn out in their numbers and refute amendments that are meant to prop up partisan and individual interests which do not benefit them at all.