Mnangagwa bill faces rejection

BULAWAYO residents are gearing up for a fight against government's proposed constitutional amendments amid fears Zanu-PF will use its two thirds majority in Parliament to force through the first changes to the charter.

Parliament will this week begin hearings into the Constitution of Zimbabwe Amendment (no. 1) Bill sponsored by Vice-President Emmerson Mnangagwa's Justice ministry to change the way the chief justice and two other top judges are selected.

Chief Justice Godfrey Chidyausiku is retiring at the end of this month and Mnangagwa has been accused of trying to fiddle with the constitution to secure his Zanu-PF faction interests as the ruling party prepares for President Robert Mugabe's departure.

The proposed amendments only surfaced after the Judicial Services Commission (JSC) had brushed aside attempts to force it to suspend the process to select Chidyausiku's successor, which includes public interviews.

Justices Luke Malaba, Rita Makarau and Paddington Garwe went through the interviews, while judge president Justice George Chiweshe — Mnangagwa faction's alleged preferred candidate — pulled out under unclear circumstances.

Zimbabweans are sceptical of Zanu-PF intentions to change the constitution in a fundamental way hardly four years after the charter was crafted in 2013.

Bulawayo residents, speaking at a public meeting on the Bill, said if Zanu-PF defied popular sentiments against the Bill, Zimbabweans would be forced to go into the streets to defend the constitution.

Zimbabwe Christian Alliance leader Useni Sibanda said Zimbabweans must attend the public hearings in their numbers and make their position on the proposed amendments clear.

"The constitution is sacrosanct, and I believe for Christians, it is like someone saying I am going to change Bible verses," he said.

"That is why Zimbabweans should take interest in the public hearings by Parliament on the Constitution of Zimbabwe Amendment (no. 1) Bill because it has to do with amendment of the constitution."

Civic groups like Southern Africa Parliamentary Support Trust (Sapst), Zimbabwe Christian Alliance, Centre for Public Engagement and Public Policy Research Institute have already taken the lead in public awareness about the amendment. Some residents said the government was not sincere in trying to amend the constitution that was supported by all political parties.

"We watched on television interviews of some of the judges for chief justice, but we are surprised that the executive is now trying to take over the process and change the constitution," said Claredge Mudzingwa of Nketa 8.

"Looking at their attitude, is there a possibility that residents can stop amendments of the constitution before it enters the gates of Parliament?"

Percy Mcijo of Streetwise Informal Traders Association said the government wanted to change a constitution that people were not even familiar with.

"The constitution provides that people need to be made aware of it, and government has not done so," he said. "Then how can provisions on amendments to [a law regarding the election of] chief justice, deputy chief justice and High Court judge president be done because you cannot amend something which people do not know about?"

Mantante Mlotshwa said Zanu-PF should ensure that the people's wishes prevailed, even if the party had a three thirds majority.

"If government amends a constitution that people do not know about, we are going to give them serious resistance," he said. "Zanu-PF also has a two thirds majority in Parliament and even if people were engaged in public hearings, how can they ensure their views are implemented?"

Prominent human rights lawyer Matshobane Ncube said people must have a say in the appointment of judges by scrutinising whether they were qualified and that they do not meddle in politics.

"The three arms of government — the executive, judiciary and legislature — are different and if one branch of government says they will appoint the other, then there are hidden issues behind those pushing for that amendment to the constitution," he said.

"The chief justice position needs someone who is independent and was not appointed by the president so that they do not owe their stay in office to the president.

"If we have contested elections and we take the matter to that judge, it means he will please his master."

Legal expert and Sapst programmes advisor Phillip Muziri said constitution amendment Bills were unique.

He said ordinary Bills could be introduced in two weeks after publishing in the government gazette while with a constitution Bill, 90 days must lapse after publication in the government gazette to give room for various processes and engagements to take place.

"Constitution Bills that may be subject to a referendum are those that alter the Bill of Rights, that is chapter 4 and 16, but the Constitution of Zimbabwe Amendment (no. 1) Bill does not fall under that category," Muziri said.

"It needs two thirds of membership of a House of Parliament [National Assembly or Senate] to pass it."

Retired High Court judge Justice Moses Chinhengo said constitution amendments were very rare, with the United States of America's constitution having been amended only three times since 1789. The previous Zimbabwe constitution was amended 19 times.

Justice Chinhengo pointed out that the constitution could be amended as long as the correct procedures were followed, and if that was the case, no one could contest the amendment even at a legal level.

But, he warned that giving too much power to one person to appoint the chief justice was very dangerous.

"My preferred approach is the Indian approach where the chief justice and deputy chief justice are appointed by the president, but must be approved by the National Assembly".

Meanwhile, Centre for Public Engagement director Samukele Hadebe said there was a shocking lack of participation in Parliament's public hearings on Bills in Bulawayo and some areas in Matabeleland.

He said some Bills passed with 18% views from people and a study by his institution revealed 82% of the people did not attend public hearings.

He said another challenge was that Parliament picked one venue per province for the public hearings, adding that for Bills like the Constitution Amendment (no. 1) Bill, it was only the elite in society who understood what was taking place while a majority of Zimbabweans were ignorant about the constitution.

"At least 40% of the sampled population during the study said amendments to the constitution were bad, but they foresee the ruling Zanu-PF party, which has a majority in Parliament, forcing the Bill to pass," Hadebe said.

He said the whipping system in Parliament would force ruling party MPs to tow the line, but said hope was still there if ruling party MPs were lobbied to exercise due diligence when passing the Bill.

"Some ruling party MPs might not debate the Bill because they are afraid of their superiors or due to factional lines, but they should not cloud national issues with factional politics," Hadebe said.

Zimbabweans last year rejected the National Peace and Reconciliation Bill until it was re-drafted.