'Chamisa clause' no stroll in the park

Of all the problems facing the country, the Zimbabwe War Veterans' Association felt the most pressing concern is the age limit of presidential candidacy in the Constitution, which they feel needs to be amended upwards.

We previously discussed this amendment as a bizarre, yet likely possibility. In this article we consider it in more detail.

It's unsurprising that the association is playing politics at the expense of the nation as they have done so many times before. The association has become synonymous with factional fights, mudslinging politics and poorly thought-out resolutions that serve no national interest.

Ninety percent of their resolutions have been self-serving, and if one has to be frank, they can be traced back to the numerous issues facing the country. Instead of them acting as elders who provide guidance and wisdom to the nation, the association is embarrassingly at odds with the national heartbeat and out of touch with the real issues Zimbabweans face.

Notwithstanding this, the question is whether such an amendment can come through. Technically, the war veterans can petition Parliament directly for it to consider an amendment to the Constitution in terms of Statutory Instrument 149, but without the political support of the ruling party, this would be a futile exercise.

With Zanu-PF holding a two-thirds majority in the National Assembly, the party's full support would be the first hurdle to overcome because without it, no amendment can come through.

There are some signs that the youth league and some party big weights are not in support of the mooted amendment, but if history is anything to go by, then the party is likely to support the move and push for an amendment.

Though undesirable, the Constitution has already undergone an amendment in its short five-year life. The first amendment changed the appointment process of the Chief Justice, Deputy Chief Justice and the Judge President.

The task of amending the Constitution primarily rests with the Legislature in terms of s117(2) (a) of the Constitution. Section 328 of the Constitution governs the procedures to be followed for these amendments.

A constitutional Bill, that is, a Bill that amends the Constitution, is passed subject to various procedures. The Constitution provides stricter amendment procedures for the amendment of the most sacred aspects such as fundamental rights and the provisions on agricultural land, but it is easier to amend other provisions such as the presidential age limit or the function of the civil service, for example.

Ordinarily, constitutional Bills are passed by an affirmative vote of two-thirds of the membership of the National Assembly and the Senate. It is important to flag that the National Assembly cannot amend the Constitution without the Senate and, therefore, Zanu-PF would have to get two-thirds majority in both the House of Assembly and Senate.

Currently, the party does not have a Senate majority and it would have to lobby to get the additional votes should it wish to amend 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, 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.

It is the Senate vote that may prove to be the saving grace in this situation since the ruling party does not have a straight forward majority, but even this is a dangerously close call which can swing either way, depending on how the party plays its political cards.

Recent events suggest that they can easily get the additional votes to push for an amendment, however.

The age of candidacy is currently set at 40 in terms of s91 of the Constitution, and all that will be required to amend this is a two-third supporting vote by both the National Assembly and the Senate.

The amendment would be regressive, petty and politically motivated, which is why it should never see the light of day.

I previously indicated that there is a growing trend globally, to decrease the age of candidacy to allow for younger candidates to hold the highest office in the land.
In Angola, Austria, Brazil, Chile, Cyprus, India, Indonesia, Ireland, Israel, Mexico, Nigeria, Poland, Portugal Russia and the United States, the age limit is 35.

In Argentina and Colombia, the age of candidacy is 30 and 21 in Iran. It seems that countries like France, the United Kingdom, The Netherlands, Norway and Switzerland require a candidate to be over the age of 18.

There are still a few countries with upward age limits, but these are now in the minority. In Italy the age limit is 50 and in Pakistan and Singapore it is 45. Germany, Philippines, South Korea and Turkey, the limit is 40.

The intention of this proposed amendment is clearly in bad faith and is made to exclude MDC Alliance leader Nelson Chamisa from contesting the next elections.

One can only hope and pray that this suggested amendment is not tabled. It would be advisable for the war veterans to proffer solutions to the problems facing the country, and if they really want to help create a better Zimbabwe, then perhaps they can start by exposing some of their colleagues who falsely claimed disabilities from the War Victims Compensation Fund in the 1990s because those payouts were the genesis of the economy's decline . . . just saying!

Enacting such a law automatically entails repealing Access to Information and Protection of Privacy Act.

Paul Kaseke is a legal advisor, commentator, policy analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as senior managing partner and current group chair of AfriConsult Firm. He writes in his personal capacity.