2nd Amendment now part of Constitution?

The Second Amendment to the Constitution of Zimbabwe came into force yesterday following the required assent by more than two thirds of the National Assembly, two thirds of the Senate and the consent of the President.

The Amendment Act, gazetted yesterday, deals with a number of issues: The selection of vice-presidents and who fills a presidential vacancy, the number of non-parliamentary technocrats in Cabinet, the retention of the specially elected extra women members of the National Assembly for another 10 years with more detail given of who must be in that group, the addition of 10 specially elected extra youth members, the terms of office of judges and other matters concerning their conditions, the appointment of the Chief Secretary to the Office of the President and Cabinet, matters relating to how the independent Prosecutor General can be removed, the make-up of the provincial and metropolitan councils, and the addition of extra women councillors in local authorities.

Under the Constitution there was a temporary arrangement for the first two Presidential terms, whereby the President would appoint up to two vice presidents and basically they served on the same terms as other Cabinet members.

When there was a Presidential vacancy, through death, resignation or impeachment, the political party that had nominated the winning candidate who had just died or left office would name the successor to serve out the rest of the term.

From 2023 the system was supposed to change to an arrangement where every Presidential candidate would select in advance the two candidates for First Vice-President and Second Vice President and the three would stand as a single ticket.

There was to be automatic promotion in the event of a Presidential or First Vice-Presidential vacancy, with arrangements set out for a new Second Vice-President. Under the Second Amendment Act the temporary arrangement has been made permanent.

There were arguments that this system now made permanent allowed a President to name their successor. In fact the opposite is true. Under the default 2023 new system the President would, in effect, be naming their successor in advance.

Under the temporary system now made permanent, the party that won the Presidency makes that choice, with the only condition being that the successor must meet the constitutional qualifications for President.

The only time in independent Zimbabwe when there was a vacancy in the Presidency, in 2017 after the resignation of Robert Mugabe, the winning party, Zanu-PF through a central committee vote, chose Emmerson Mnangagwa to serve out the term to mid 2018.  

In the 2013 Constitution there was a provision for the life of two Parliaments, 10 years, for an additional 60 women members of the National Assembly to join the 210 members elected in constituencies. These 60, six from each province, would be elected by proportional representation based on the votes cast for each party during the constituency elections in that province.

The time limit was set on the assumption that over a decade parties would be nominating more women for constituency seats and that something close to gender parity would be obtained without the extra seats.  

This is now considered to be work in progress rather than attainable soon, so the arrangement has been extended for another two Parliaments, that is another 10 years. However, the amendment does now require that the party lists used for elections ensure that at least 10 of the extra women are under 35, that women with disabilities are represented on the lists, and that an Act of Parliament is passed that gives the terms of how young women with disabilities are represented on the lists.  This is likely to be an amendment to the Electoral Act.

The constitutional amendment, besides ensuring that there must be at least 10 young women, also adds an extra 10 seats to the National Assembly for people aged 21 to 35, one from each province but elected by proportional representation using the national constituency vote for each party.  Each party's list must have men and women alternating in the list.

The result of the two clauses will produce a minimum of 20 MPs under 35, five men and 15 women, although younger people can still win constituency seats or be nominated for more of the special women's seats.

A batch of clauses deal with the judiciary. For initial appointment to the bench, the amendment retains the present system of nomination, interviews, and a short list of three names submitted to the President. But this system no longer applies for promotions on the bench.  The President, acting on the recommendation of the Judicial Service Commission, can promote a judge to a higher court.

The retirement age of judges is now set at 70 but they can elect to serve, so long as they decide before their 70th birthday, until they are 75 although must submit a medical report that confirms they are mentally and physically fit to remain in office.  

Constitutional Court judges now serve a single 15-year term and cannot be reappointed. But if they are still under 75 at the completion of that term they have the option of returning to the Supreme or High Court.

In a brief clause the Civil Service is now called the Public Service, but more importantly 10 percent of new appointments to the Public Service must now be people with disabilities.

The post of Chief Secretary to the Office of the President and Cabinet is now a Constitutional post with the holder and their deputies appointment by the President after consulting the Public Service Commission.

But the Constitution now formally names the Chief Secretary as the most senior member of the Public Service, which has been the case but not formally, and makes it clear that Permanent Secretaries shall report to the Chief Secretary on any matter affecting them as a class.  

That basically also makes the group of top public servants a constitutional class that can act together. The Prosecutor General in the 2013 Constitution basically served on the same conditions as a judge, with the same dismissal procedure to ensure independence.  

The amended section retains the independence and the need for a tribunal, consisting of two present or past Supreme Court judges and a High Court judge or a person qualified to be a judge.

The President appoints the tribunal if he considers the question of removal needs to be investigated. The slight differences from the procedure for a tribunal investigating a judge, where the Judicial Service Commission needs to make a recommendation before the President appoints a tribunal, was to make it clear that while the Prosecutor General is the leading lawyer who appears in court, they are still below a judge in status.

With the Second Republic taking devolution seriously, such as granting budgets to local authorities, and wanting effective provincial councils as the top tier of the devolved structures, the amendment Act goes into the membership of these councils to ensure that the members come from the bottom up with no one moving in from the top down.

So MPs and senators are barred from sitting on councils, largely because Parliament is expected to oversee the councils and no one can be a judge of themselves. There is a small naming change; the provincial councils for metropolitan provinces are now called metropolitan councils.

The members of each council are the chairperson, who is chosen by the rest of the council from two candidates submitted by the political party that won the most National Assembly seats in the last general election, or if there is no single party in that position, then the party that won the most National Assembly votes. This was already in the Constitution.

This means that while the winning party in a province names the chairperson, the rest of the council members can have an input into which person from that party they would prefer in the centre chair. Every mayor and chairperson of every urban and rural local authority in the province, regardless of what they are called, sits by right as a member of the provincial or metropolitan council.  

Then in addition, there must be 10 women members elected from party lists on the basis of how their parties performed in the last Parliamentary election. But women with disabilities must now be included on those lists. The details will be set in amendments to the Electoral Law.

Local authorities now also get specially elected extra women councillors. An Act of Parliament is now needed to allow at least 30 percent extra seats reserved for women using proportional representation on party lists based on how the party candidates performed in the last general election for the council.  

To clear one slightly ambiguous area over international agreements with financial commitments, the amendment Act now states that except for loan agreements and guarantees, already dealt with in the Constitution, any agreement not an international treaty but which is concluded or executed by the President with foreign organisations or entities and which imposes fiscal obligations on Zimbabwe does not bind Zimbabwe until approved by Parliament.