Opinion / Columnist
Constitutional amendments: Likely scenarios
27 Sep 2018 at 07:17hrs | Views
WITH Zanu PF holding a majority in the National Assembly, one of the most prevalent fears is what the majority will be used to achieve. Today, we explore the possibilities and concerns that arise from it.
The function of Parliament is to hold government accountable in terms of s119 of the Constitution. It is important that the majority the ruling party has is not for rubber-stamping decisions of the Executive, but instead, to build a vibrant democracy. To prevent the failures and poor governance of the previous government, it is in the nation's best interests to hold government accountable despite the connection between the ruling party and the government.
I believe it is common cause now that the bulk of the changes we all desire will not come from outside Zanu PF, but within itself since it holds the levers of power. While the opposition has a fundamentally important role in holding government accountable, the lack of a majority in the House of Assembly almost gives the ruling party a blank cheque to push through any agenda it may have with very little effort. It is, therefore, important to recognise that the ruling party plays a major role in the transformation of the country by holding its own leaders accountable as required by the Constitution.
Theoretically, the first loyalty parliamentarians have is to the Constitution and the republic and not their parties. In practice, parliamentarians across the political divide tend to push partisan agendas before national ones. It may be a little too optimistic to expect them to suddenly change, but it is not impossible. If we are to build a vibrant and healthy democracy, then these tenets of constitutionalism and accountability need to be fostered and embraced.
I would argue that if Zanu PF wants to be seen as a reformed institution and wants to keep the levers of power in the future, then it must ensure it holds its own leaders accountable lest it is viewed as an enemy of the people as was the case with the previous administration. By ensuring they hold their own accountable, it prevents Members of Parliament from losing their support base should the top leaders fail.
One of the fears expressed by many sectors is the amendment of the Constitution. Unfortunately, this is not a far-fetched reality since the last Parliament saw to the amendment to the Constitution four years after its enactment.
The constitutional amendment pushed through changed the appointment process of the Chief Justice, Deputy Chief Justice and the Judge President. I fear that there may well be more amendments to come our way although it won't be as easy as it was before. The reason for this is although the ruling party has a two-thirds majority in the National Assembly, it does not have the same majority in the Senate.
Amendments to the Constitution are set out in s328 of the Constitution. A Bill that amends the Constitution is referred to as a Constitutional Bill and different procedures apply for different aspects of the Constitution. An amendment to Chapter 4 or 16 of the Constitution, where the declaration of rights and the provisions on agricultural land can be found, are the most difficult to push through.
This is because they must not only be approved by the National Assembly and Senate with a two-thirds majority in both houses, but must also be subjected to a referendum. The other provisions are subject to a two-thirds majority test without the need for a referendum.
In theory then, the fact that Zanu PF does not hold the requisite two-thirds majority in the Senate will prevent them from amending the Constitution easily. If for some reason, however, Zanu PF can get the backing of the chiefs and an extra vote in the Senate, it may well be able to push an amendment through if all its members vote. It is a dangerously close call which can swing either way, depending on how the party plays its political cards.
I have contemplated which amendments can possibly come through and three come to mind. The first is one which may increase the President's power and ability to appoint ministers outside Parliament beyond the current limit which restricts this to five. I concede that this may be a useful amendment if it promotes meritocracy, that is, technocrats or appointees selected on merit.
The current framework limits the President's ability to get the best of the best in his Cabinet since most of these people are usually not Members of Parliament and are in the private sector. The downside of this though is that I don't believe the party has reformed itself enough not to use such an amendment to promote cronyism instead.
Such an amendment may actually have a detrimental effect by allowing loyalists to be appointed to Cabinet — a reality we have contended with under the previous administration for years.
There has been talk of possibly increasing the age limit for presidential elections by amending s91 of the Constitution. If there is any substance to this claim, it would be a regressive and regrettable amendment. If it is to be amended, then it should be amended to allow for even younger candidates rather than upping it.
Globally, the trend is to go for younger candidates. In the United States, for example, the age limit is 35, which is also the case for Austria, Angola, Chile, Brazil, Cyprus, Poland, India, Mexico, Russia, Indonesia, Israel, Ireland, Nigeria and Portugal. The age limit of 30 seems to be the qualification in countries such as Argentina and Colombia, while Iran has an age limit of 21.
The United Kingdom seems to only require that one be over the age of 18. France, The Netherlands, Norway and Switzerland similarly require a candidate to simply be over the age of 18 to go for the highest office in the land. The age limit of 50 seems to only exist in Italy from what I could gather, while that of 45 can be found in Pakistan and Singapore. The limit of 40 can be found in Germany, Philippines, South Korea and Turkey. In any event, if the amendment is pushed through, it would clearly be one done in bad faith to exclude the current opposition leader, Nelson Chamisa, from competing in the next elections.
Although nothing formal has been placed on the table in this respect and this is merely from speculation, it would be ill-advised for government to pursue a clearly politically motivated amendment such as this one. The saving grace here may be the lack of a majority in the Senate, which would stop them from pursuing an amendment of this sort.
Lastly, the most obvious hint at an amendment was announced by the President when he alluded to the creation of a special office for the Leader of the Opposition. I use the words creation of a special office intentionally in this regard because s151(2) of the Constitution presupposes the existence of this office already, with the exception that it refers to two leaders of the opposition, one for each house of Parliament. The leaders of the opposition in both houses already make up part of the Committee on Standing Rules and Orders as per the Constitution.
These positions, however, are confined to Members of Parliament. There is no provision for a leader of the opposition who is not a Member of Parliament already. The current framework that recognises the leader of the opposition is different from what the President has suggested, which is modelled along the Westminster system. In South Africa, the leader of the opposition is constitutionally envisaged in s57(2) of the Constitution.
The wording in the section is mandatory in that the rules of Parliament must provide for the recognition of the leader of the largest opposition party in the National Assembly. No similar provision exists in the Zimbabwean Constitution, however.
Generally, the Westminster system of parliamentary government officially recognises the leader of the largest opposition in Parliament. The leader is entitled to perks and an additional salary since the leader is also a Member of Parliament.
The Zimbabwean challenge is that the current framework does not permit the creation of this office in the way the President articulated it. There is no mention as to the perks, entitlements of the Leader of the Opposition in the Constitution.
Furthermore, an additional challenge is that this office requires the Leader to be a Member of Parliament, but currently, Advocate Chamisa is not a member of either of the two houses of Parliament.
Since the current legal meaning of the Leader of the Opposition in Zimbabwe is not confined to one person, but to two (one for each house) and is confined to Members of Parliament, legal gymnastics will be required to legitimise the creation of this office.
The legal basis that will be used to create an official position to a non-MP will no doubt be a test as to the government's respect for constitutionalism and the rule of law in general. This, unfortunately, will require a constitutional amendment. Without this, the President will almost certainly end up violating the Constitution.
Whether this amendment is one that will entrench and further our democracy is debatable, but what is clear is that the current government will push for an amendment to the Constitution between now and 2023 for one reason or the other.
The function of Parliament is to hold government accountable in terms of s119 of the Constitution. It is important that the majority the ruling party has is not for rubber-stamping decisions of the Executive, but instead, to build a vibrant democracy. To prevent the failures and poor governance of the previous government, it is in the nation's best interests to hold government accountable despite the connection between the ruling party and the government.
I believe it is common cause now that the bulk of the changes we all desire will not come from outside Zanu PF, but within itself since it holds the levers of power. While the opposition has a fundamentally important role in holding government accountable, the lack of a majority in the House of Assembly almost gives the ruling party a blank cheque to push through any agenda it may have with very little effort. It is, therefore, important to recognise that the ruling party plays a major role in the transformation of the country by holding its own leaders accountable as required by the Constitution.
Theoretically, the first loyalty parliamentarians have is to the Constitution and the republic and not their parties. In practice, parliamentarians across the political divide tend to push partisan agendas before national ones. It may be a little too optimistic to expect them to suddenly change, but it is not impossible. If we are to build a vibrant and healthy democracy, then these tenets of constitutionalism and accountability need to be fostered and embraced.
I would argue that if Zanu PF wants to be seen as a reformed institution and wants to keep the levers of power in the future, then it must ensure it holds its own leaders accountable lest it is viewed as an enemy of the people as was the case with the previous administration. By ensuring they hold their own accountable, it prevents Members of Parliament from losing their support base should the top leaders fail.
One of the fears expressed by many sectors is the amendment of the Constitution. Unfortunately, this is not a far-fetched reality since the last Parliament saw to the amendment to the Constitution four years after its enactment.
The constitutional amendment pushed through changed the appointment process of the Chief Justice, Deputy Chief Justice and the Judge President. I fear that there may well be more amendments to come our way although it won't be as easy as it was before. The reason for this is although the ruling party has a two-thirds majority in the National Assembly, it does not have the same majority in the Senate.
Amendments to the Constitution are set out in s328 of the Constitution. A Bill that amends the Constitution is referred to as a Constitutional Bill and different procedures apply for different aspects of the Constitution. An amendment to Chapter 4 or 16 of the Constitution, where the declaration of rights and the provisions on agricultural land can be found, are the most difficult to push through.
This is because they must not only be approved by the National Assembly and Senate with a two-thirds majority in both houses, but must also be subjected to a referendum. The other provisions are subject to a two-thirds majority test without the need for a referendum.
In theory then, the fact that Zanu PF does not hold the requisite two-thirds majority in the Senate will prevent them from amending the Constitution easily. If for some reason, however, Zanu PF can get the backing of the chiefs and an extra vote in the Senate, it may well be able to push an amendment through if all its members vote. It is a dangerously close call which can swing either way, depending on how the party plays its political cards.
I have contemplated which amendments can possibly come through and three come to mind. The first is one which may increase the President's power and ability to appoint ministers outside Parliament beyond the current limit which restricts this to five. I concede that this may be a useful amendment if it promotes meritocracy, that is, technocrats or appointees selected on merit.
The current framework limits the President's ability to get the best of the best in his Cabinet since most of these people are usually not Members of Parliament and are in the private sector. The downside of this though is that I don't believe the party has reformed itself enough not to use such an amendment to promote cronyism instead.
Such an amendment may actually have a detrimental effect by allowing loyalists to be appointed to Cabinet — a reality we have contended with under the previous administration for years.
There has been talk of possibly increasing the age limit for presidential elections by amending s91 of the Constitution. If there is any substance to this claim, it would be a regressive and regrettable amendment. If it is to be amended, then it should be amended to allow for even younger candidates rather than upping it.
Globally, the trend is to go for younger candidates. In the United States, for example, the age limit is 35, which is also the case for Austria, Angola, Chile, Brazil, Cyprus, Poland, India, Mexico, Russia, Indonesia, Israel, Ireland, Nigeria and Portugal. The age limit of 30 seems to be the qualification in countries such as Argentina and Colombia, while Iran has an age limit of 21.
The United Kingdom seems to only require that one be over the age of 18. France, The Netherlands, Norway and Switzerland similarly require a candidate to simply be over the age of 18 to go for the highest office in the land. The age limit of 50 seems to only exist in Italy from what I could gather, while that of 45 can be found in Pakistan and Singapore. The limit of 40 can be found in Germany, Philippines, South Korea and Turkey. In any event, if the amendment is pushed through, it would clearly be one done in bad faith to exclude the current opposition leader, Nelson Chamisa, from competing in the next elections.
Although nothing formal has been placed on the table in this respect and this is merely from speculation, it would be ill-advised for government to pursue a clearly politically motivated amendment such as this one. The saving grace here may be the lack of a majority in the Senate, which would stop them from pursuing an amendment of this sort.
Lastly, the most obvious hint at an amendment was announced by the President when he alluded to the creation of a special office for the Leader of the Opposition. I use the words creation of a special office intentionally in this regard because s151(2) of the Constitution presupposes the existence of this office already, with the exception that it refers to two leaders of the opposition, one for each house of Parliament. The leaders of the opposition in both houses already make up part of the Committee on Standing Rules and Orders as per the Constitution.
These positions, however, are confined to Members of Parliament. There is no provision for a leader of the opposition who is not a Member of Parliament already. The current framework that recognises the leader of the opposition is different from what the President has suggested, which is modelled along the Westminster system. In South Africa, the leader of the opposition is constitutionally envisaged in s57(2) of the Constitution.
The wording in the section is mandatory in that the rules of Parliament must provide for the recognition of the leader of the largest opposition party in the National Assembly. No similar provision exists in the Zimbabwean Constitution, however.
Generally, the Westminster system of parliamentary government officially recognises the leader of the largest opposition in Parliament. The leader is entitled to perks and an additional salary since the leader is also a Member of Parliament.
The Zimbabwean challenge is that the current framework does not permit the creation of this office in the way the President articulated it. There is no mention as to the perks, entitlements of the Leader of the Opposition in the Constitution.
Furthermore, an additional challenge is that this office requires the Leader to be a Member of Parliament, but currently, Advocate Chamisa is not a member of either of the two houses of Parliament.
Since the current legal meaning of the Leader of the Opposition in Zimbabwe is not confined to one person, but to two (one for each house) and is confined to Members of Parliament, legal gymnastics will be required to legitimise the creation of this office.
The legal basis that will be used to create an official position to a non-MP will no doubt be a test as to the government's respect for constitutionalism and the rule of law in general. This, unfortunately, will require a constitutional amendment. Without this, the President will almost certainly end up violating the Constitution.
Whether this amendment is one that will entrench and further our democracy is debatable, but what is clear is that the current government will push for an amendment to the Constitution between now and 2023 for one reason or the other.
Source - newsday
All articles and letters published on Bulawayo24 have been independently written by members of Bulawayo24's community. The views of users published on Bulawayo24 are therefore their own and do not necessarily represent the views of Bulawayo24. Bulawayo24 editors also reserve the right to edit or delete any and all comments received.
