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President Mnangagwa makes history as Chief Justice Malaba is saved by the bell

08 May 2021 at 23:31hrs | Views
The present Constitution of Zimbabwe became fully operational on the 22nd August, 2013, having been assented to on the 22nd May, 2013, by the President as the Constitution of Zimbabwe Amendment (No. 20) Act, and published on that same day.  So the utterances by some panelists that the constitution was not yet law is false and seriously misleading.

However the Constitution of Zimbabwe amendment bill number 2 of 2019 sets out a number of clauses it sought to amend or repeal. We must remember that Zimbabwe practices representative democracy, so the vote of parliamentarians represents each and everyone in their constituencies.

We will analyse clause by clause of the Bill in showing that the amendment is meant in all fairness to be catering for the best interest of Zimbabweans.

While people are bound by law they remain the custodian of the same law which binds them. Society is not slaves to law when the law becomes unbearable society is legally expected to change the law and to conform to it.

The Bill had clauses which can be summarised as:

Clause 1
This clause sets out the Bill's short title. It gives the Bill its name.
Clauses 2, 3, 4, 5, 6, 7 and 8
These clauses dispense with the "running-mate" concept of the Vice-Presidency. Instead, the 2 Vice-Presidents will be chosen on the President's own authority.

Clauses 9
This clause adopts the provisions of paragraph 14 of the 6th Schedule to the Constitution as the operative provisions relating to the question of the succession to the Presidency (given that the Vice-Presidents are not elected as running mates).

Clause 10
Under this clause the President may appoint up to 7 (instead of 5) additional Ministers from outside Parliament.

Clause 11
This clause extends the provision for the party-list women members of the National Assembly by another two extra Parliaments (from 2 to 4 Parliaments), and makes provision for the party-list representation of youths in the National Assembly.

Clause 12
This clause de-couples ZEC's delimitation function from the population census held every 10 years.

Clause 13
This clause will allow the President acting on the recommendation of the JSC to appoint sitting judges to vacancies in the higher courts, without subjecting them to the public interview procedure.

Clause 14
This clause will allow Judges of the Constitutional Court and Supreme Court to extend their tenure after reaching the age of 70 annually for up to 5 years, subject to a favourable medical report as to the mental and physical fitness of the judge so to continue in office.

Clause 15
This clause rewords the functions of the Public Service (previously called the Civil Service).

Clause 16
This clause provides for the appointment and role of the Chief Secretary to the Office of the President and Cabinet and his or her deputies.

Clauses 17 and 18
These clauses create the office of the Public Protector, who will take over certain functions concerning public maladministration, etc, from the Zimbabwe Human Rights Commission.

Clause 19
This clause will provide for the appointment of the Prosecutor-General by the President on the advice of the JSC, without the intervention of a public interview procedure, and makes special provision for his or her removal for cause by a Tribunal.

Clauses 20, 21, 22 and 25
These clauses remove members of Parliament from the membership of provincial councils, merge the provisions relating to provincial and metropolitan councils by removing the special provisions relating to the latter (they will no longer be chaired by mayors, but be elected in terms of section 272 like provincial councils), and provide for the election of 10 of the members of Metropolitan Councils by a system of party-list proportional representation.

Clause 23
This clause uses the defined term "international organisations" in subsection (3)(a) instead of "foreign organisations or entities", which term is undefined in the Constitution.

Clause 24
This clause repeals the definition of "Civil Service" and replaces it with a definition of "Public Service".

Clause 27 and Schedule
This clause provides for minor amendments to the Constitution (mainly the substitution of references to the "Civil Service" or "Civil Service Commission" by references to the "Public Service" and "Public Service Commission")

The opposition in different face became prophets of doom by saying that Zimbabwe is descending into a constitutional crisis with the recent amendment to the national constitution. Amendment No. 2 has seen the most efficient and fast way in its going through all stages until it's lying flat on the President's desk. Its journey through parliament and Senate was so efficient and seen very little drama thanks to the martyring of the opposition. On Tuesday 4 May 2021 it was passed by senate with little opposition and just 3 days later, President Emmerson Mnangagwa assented to it a circumstance that marked the commencement of the amendment's life as a law.  The President did not waste time he lived right to his word hit the ground running.

The efficiency in putting the amendment to law had nothing to do with Chief Justice Malaba's birthday. The fact that the president discharged his duties with such amazing speed does not mean he was motivated by age of the Chief Justice somewhere.
While 70 years  was the mandatory age of retirement for judges in Zimbabwe the new law allows the president to extent the tenure in office. All we can say is that this was entirely a very good coincidence. The amendment extends the retirement age of judges to 75 years, so the tenure of the Chief Justice is now extended by law. It is not the misleading reasons being flown around by those who are refusing to accept that president Mnangagwa and his government are doing their best to lead by example.

In order for these amendments to be done a lot of consultations have been done. This was not done by one person as it is alleged by the MDC Chamisa and some of their wailers around the world. There has been a broad based consultative process in which one hundred and twenty-six (126) organisations that include but are not limited to civil society organisations (CSOs) and community based organisations (CBOs) that are working on varying mandates in Zimbabwe took part. They came with their own analysis to show that Zimbabwe government does follow and abide by the rule of law. The Civic societies responded to the intention by the Parliament of Zimbabwe to institute further process to effect amendments to the Constitution of Zimbabwe Amendment (No.20) Act 2013. The civic organisations took a position and provided an overview of the proposed amendments, summary of each section of the amendment, a brief analysis and recommendations on the way forward. It must be borne in mind that on the 17th December 2019 Cabinet approved the formulation of the Constitutional Amendment (No.2)-H.B.23, 2019 that would amend several provisions of the Constitution of Zimbabwe. The Bill was published in a Government Gazette Extraordinary on 31 December 2019. The Bill was published again on 17 January 2020 to correct the anomaly which had occurred in the initial publication where the clerk and not the speaker had gazetted the Bill contrary to the Constitution. The Bill proposes amendments to provisions relating to these broad thematic areas;

1) Judiciary: Appointment of judges to the superior courts, retirement ages of judges;

2) Prosecution: Appointment and removal of the Prosecutor General;

3) Election processes: Removal of running mate provisions, extension of proportional representation

provisions for female parliamentarians, proportional representation of youths in parliament;

4) Composition of executive: Number of unelected ministers that can be appointed;

5) Legislative oversight role: Oversight and approval of agreements
It is therefore not true that the amendments were rushed through. It is again not correct to say that the government took advantage of the COVID 19 to dribble the people. In 2017 no one was even aware that there will be something coming called Covid 19. Such allegations against Zimbabwe are demonic devilish and total idiocy of those alleging it like Dhewa Mavhinga and Dzvokora who have graduated in demonising whatever is Zimbabwean.

We must remember that the Constitution was voted for by an overwhelming majority of Zimbabweans. The Constitution is the supreme law (highest law) in Zimbabwe, over the last forty one years, we remain upbeat that Zimbabwe has become one of the best African nations to be bound by its constitution.

The amendments introduced, address issues that covered all Zimbabweans. The extension of the women's quota system addressed the area which many countries have failed to address. The Zimbabwe Election Commission had failed to fully implement provisions of the Constitution on gender equality as provided in the National Objectives chapter,  neither did the opposition suggest a change through an amendment to the Electoral Act to fully align electoral laws and regulations with the Constitution. All what the opposition did was to cry for electoral reforms without raising a motion in parliament.

Thanks to the amendments because there was no legislative or administration measures which could be taken to safeguard youth participation. The delimitation provisions could have simply been addressed by aligning the Census and Statistics Act with the Constitution but the MPs did not. The full amendments came as a relief. The  provisions will consolidate executive powers, without eroding any existing checks and balances currently provided for. Contrary to the falsehoods being spread around there is no centralisation of power in the President.

The  provisions are an active participatory democracy. The amendments are necessary and ascertain that the issues could not have been resolved through other legal reform measures. If we were to take these matters to court the opposition will say the judiciary is compromised. So in short the amendments are indeed reasonably justifiable in a democratic society and they uphold the objectives as set out in the Constitution of Zimbabwe, 2013.

Clauses 2, 3, 4, 5, 6, 7, 8
(Sections 91,92,93,94,95,97 & 101)
  These clauses removed the provisions that relate to election of Vice Presidents, or that tie the assumption of office of the Vice President, the terms of office of Vice Presidents to that of the President (sections 91, 92, 93, 94, 95, 97 & 101 of the Constitution). This gives the president the privilege of choosing his team. It was a mistake to chose a team for the coach. Coaches are at their best with their own team.
The running mate clause would have created an unstable presidium.  Imagine a Vice President who does not care about his principal.

  According to the amendment, in the event of resignation, death or incapacitation of the President, the ruling party has power to nominate a President to take over for the rest of the term. This is a universal practice. Most countries do that, as was done in Tanzania when Magufuli passed on and again in Malawi when the President passed on her Vice President Banda became President.
Another advantage in the amendment is the discretion of
 The President to appoint up to 7 (instead of 5) additional Ministers from outside Parliament. This gives the nation a chance to benefit from professionals and not politicians.
 Since these are executive appointments, solely made by the President there is a guarantee that these appointments will be based on need, and motivated by the experience and expertise of those to be appointed.
Again the extension of the quota for women by two more terms is progressive and must be applauded for attaining women representation. This ensures robust participation of women in electoral processes.

It will also increase the number of women who participate in competitive elected positions as there will be many places to compete for.
So it should be stated clearly that the amendments do not pause a Constitutional Crisis.

A constitutional crisis generally refers to a situation where the existing constitutional mechanism is unable to resolve a fundamental political problem or where the constitutional mechanism has become so broken that it leads to a stand-off or a never-ending chain of illegalities. So this has been avoided by these amendments.

The constitution is the supreme law of a country and it is supposed to have mechanisms to resolve political disputes and other problems.
One of the highly misrepresented amendment  Is Clause 13
(Section 180)

This clause will allow the President acting on the recommendation of the JSC to appoint sitting judges to vacancies that may arise in the higher courts, without subjecting them to the public interview procedure.  The detractors are making it appear as if the president just appoints or promotes a judge completely alone. Section 180 (2) (c) of the current Constitution prescribes public interviews for prospective candidates who wish to be appointed as judges of superior courts. The proposal for the President to appoint judges to the superior courts after consultation with the Judicial Service Commission (JSC) is a welcome move. It Completely removes the present public humiliation, that ensured that judges will be appointed following a public interview process that is humiliating and never guaranteed a public scrutiny. The final selection despite the public interviews was done in a private office by a few without public input.
Older democracies that have long-standing political practices and traditions have the advantage of having developed these unwritten understandings that operate silently to avert crises. In these older democracies Judges are appointed by the government and or national leader. There is no way a judge should be subjected to an election campaign. The judge must only be answerable to The Law of the land.

We expect the opposition to applaud the president of Zimbabwe and his government for the efficiency they have shown in the bringing this bill to law.

The minister of Justice Honourable Ziyambi Ziyambi will bag this one as a great achievement and the parliament and the house of senate will go into history as the ones who have made significant changes to Zimbabwean laws.

Source - Dr Masimba Mavaza
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