ZIMBABWE CONSTITUTION AMENDMENT A NECESSARY EVIL
Zimbabwe, a constitutional democracy in the infant phase. Won its independence through a protracted war of liberation. One of the longest and most horrific war in the history of African liberation. Fought for nearly over two decades. To its end, the war was enthusiastically spearheaded by the Zimbabwe African National Congress [Patriotic Front], (ZANU PF). Comprised of young gallant sons and daughters of the soil. After negotiations to end the war, ZANU PF, subsequently won 1980 general elections, became the ruling party to this day. 45 years in power. The primary objective of the war was to regain the dispossessed land lost to colonial settlers, and establish majority rule under internationally recognised universal suffrage. This culminated in the Declaration of Independence. An independence that ultimately gave a glimpse to a new dawn. A new sovereign dawn of hope, prosperity and majority rule. A prosperous constitutional democracy. The foundational actions towards the realization of the aspirations of the people after the liberation struggle was the enactment of the first Constitution, the Independence Constitution of 1980. A Constitution that was written in a foreign land of London during the Lancaster House Negotiations guaranteeing one man, one vote, and came into effect on 18 April 1980. This marked the beginning of Constitutional Democracy in Zimbabwe.
The idea of constitutionalism and democracy remains a thorny issue in Zimbabwe politics, even after the promulgation of the Zimbabwe Constitution 2013. Politicalism oftenly overlapping norms, values, and principles of constitutionalism. Undermining the very essence of democratic framework and its functionality. With submitted changes to the current Constitution, Zimbabwe seem to be moving from Direct Constitutional Democracy towards a Representative Constitutional Democracy, if proposed amendments succeed. The amendments, a political boiling subject. Critics are questioning the constitutionality of the proposed changes, as well as required constitutional procedures for them to pass. Citizens are asking whether the changes, if implemented in whatever way, are holistically beneficial or present a political doom. Advocates of the amendments are balanced, whilst, the political neutrals argue, the changes are a necessary evil. The Constitution is determinative in its amendment processes. But, that is dependent on the experts' interpretation methodology aided by the person's ability to ignore the subjective impulses, and the mental capacity to consciencely apply the mind to the utilitarian political objective without falling into political egoism.
Contested Key Changes:
Presidential term limits
The amendments' aim is to change the presidential term limits from five years to seven years, through amending Section 95(2)(b) of the Constitution. Additional to that, is the amendment of Section 92. This Section 92 ring-fence the office of the president from wanton electoral-pronounced-outcome disputations by moving the country from post-war era of Direct Constitutional Democracy, a period voters directly vote for the members of parliament and the president, to New Republic Era of Representative Constitutional Democracy where citizens vote for their parliamentary representatives, who then together with the Senate vote for the president. This is not the abolishment of constitutionalism and democracy, nor the establishment of Dictatorial One Party State, suggestive rumours claim. That insinuation is wrong. Inclusive multiparty system will still exist. The amendment simply transforms the nation from Direct to Representative democracy. Representative Democracy has been successfully in practice in developed nations of Britain, France, Australia, Canada, USA, Germany, Italy, and even in South Africa. Direct Democracy has proved since our independence perilous in Zimbabwe politics, and the whole of SADC. Rendering change a categorical imperative. Election results, in particular, the presidential, are largely inconsequential, randomly and recklessly disputed without evidential material to substantiate allegations of rigging, but resulting in violent demonstrations. Testament to that, is in the previous elections held in Mozambique. The FRELIMO won the elections as per the announced results, but the results were rejected by the opposition. The refusal to accept the announced outcomes ignited civil unrest resulting in bloodshed at the hands of security forces in an attempt to restore law and order. The same happened in Tanzania elections where civilian deaths were recorded due to demonstrations instigated by opposition parties that have lost free and fair elections. Rejection of electoral outcome is a political norm among opposition parties in Zimbabwe since the emergence of Western-funded parties in early 2000s. The likes of MDC of Morgan Tsvangirai, CCC of Nelson Chamisa. Terribly to the laymen political comprehension, none of the opposition parties who claims electoral rigging has been able to prove their allegations to the public satisfaction, other than making typical opposition politicking statements. That reckless political behaviour require formidable remedial action. It is within this context that the government of Zimbabwe has introduced concrete changes to the constitution to change rules of the political game to benefit the people of Zimbabwe. It is evidential the current constitutionalism regime is an antithesis to African politics, its progress, and is ripe for change. The effects does not end at disputation, loss of human life, it stretches to perpetual capture of the country into a vicious circle of election mood that demand re-run in an election phase already closed. Thus, maintaining a distracting and destructive election environment for the whole presidential five year term, hence, the proposal to constitutionally construct a sufficient breathable seven year term for the executive power to properly execute government policies. Additionally, this will save time, and budget, that can be channeled towards grassroot national projects to benefit the people.
*However, politically, the proposed Representative Constitutional Democracy will still uphold the core values of constitutionalism. The values include, but not limited to:
Supremacy of the Constitution
Changes to the Constitution would not affect the established idea of constitutionalism which is the ultimate functioning of a State, through its organs, the Executive, Legislature, and Judiciary, acting within the parameters prescribed by its developed Constitution. The Constitution would remain the supreme law of the land and every law, rules, actions and conduct, either on the level of State, Organization, public or private would have to be consistent with the spirit and tenets of the Zimbabwe Constitution 2013.
Democracy
The system of governance still remain in the hands of the people and for the people through representatives elected by a system of universal suffrage, exercised in a free and fair electoral process in accordance with constitutional etiquettes and virtues.
Rule of Law
Constitution and Law would remain supreme and everyone, individuals, organizations, institutions, and entities would be equally subjected to, and before the law irrespective of social status.
Transparency and Accountability
Every system and its information would remain accessible, and unambiguous for public consumption. Every authority would be subjected to 'checks and balances' and shall be responsible for decisions made, and action undertaken.
Multiparty
The political environment would remain inclusive. All political parties would be constitutionally supported, financed to sufficiently participate and capably compete for governing power regardless of size.
Good Governance
The government would remain obliged to governance through processes and institutions that produce results that meet the needs of society using the resources at disposal. This would be done by ensuring participation, consensus, accountability, transparency, responsiveness, efficacy, equitability, inclusivity, and rule of law.
Voter Registration
The amendment transfers the responsibility of voter registration, compilation of voters' role and maintenance of the roll and registers from Zimbabwe Electoral Commission to the Registrar General. The preamble of the Amendment Bill, in subtle terms explains the rationale, as to ensure efficiency since the Registrar-General is the custodian of these records. The rationale can not be disputed.
Transfer of functions of Zimbabwe Gender Commission to Zimbabwe Human Rights Commission
The amendment repeals the Zimbabwe Gender Commission that was specifically dealing with gender related issues, and its functions transferred to ZHRC. This will combine expertise in the field, reduce budget constraints by placing duties in a singular entity, prevent discriminatory approach, ensure equality as the ZHRC is mandated to protect all human rights violations. In consequence to that, ZHRC would uphold the Bill of Rights holistically and effectively.
Appointment of Prosecutor General
The amendment removes the requirement for the president to appoint the Prosecutor General on the advice of the Judicial Service Commission. The amendment says, the arrangement where the Commission recommends a candidate for appointment creates a potential conflict of interest. Though changes may jeopardize the independence of the Office of the Prosecutor General, they align the office with government policies, strengthen efficiency and accountability, expedite the appointment process, while on the other hand, ensure stability and continuity of prosecution processes.
Constitutionality of the Amendments:
Zimbabwe Constitution 2013, explicitly explains on Chapter 18, Section 328 procedures to be followed when amending the Constitution. Section 328(1) describes a Constitutional Bill, as a Bill that seeks to amend the Zimbabwe Constitution of 2013, and a Term-Limit Provision, as a provision of the same Constitution which limits the length of the time that a person may hold or occupy a public office. Section 328(1) is succeeded by Section 328(2), which outline that the Act of Parliament that seeks to amend the Constitution must do so in express terms, followed by Section 328(3), which require 90 days notice of the Bill to the Senate and the National Assembly before it is presented.
Crucial to the issue at contest, is Section 328(4). This is because this section brings in the underlying political factor, which is the practicing of democracy, as it requires public participation and their consent before a Constitutional Bill is passed. However, the same section does not elaborate with specification how the public participation and consent will be acquired, unlike on Section 328(6)(a) and (b), which in peremptory terms, categorically state that, where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16, within three months after it has been passed by the National Assembly and Senate, in accordance with Subsection(5), it must be submitted to a national referendum, and if, it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted without delay to the president, who must assent to and sign it forthwith. As for Section 328(7), is of lesser importance in this particular case in that it speaks of who the amendment applies to, thereby disqualifying those who held or occupied any public office before a term-limit amendment from benefiting from such amendment. The only area of conflict on this provision is in interpreting and constitutionally establish referential application of held or occupied, terms composed with too many loopholes for politicians to easily maneuver the demands of the section, hence, if defined to be primarily referring to past not current, President ED Mnangagwa qualifies to benefit from the amendment.
To comply with Section 328(4), unlike Section 328(6)(b), which clearly speaks of referendum, this section provides no clarity on the issue of referendum. It says, immediately after the Speaker of Parliament has given notice of a Constitutional Bill in terms of Subsection 3, Parliament must invite members of the public to express their views on the proposed Bill in 'public meetings' and through 'written submissions', and must 'convene meetings', and provide facilities to enable the public to do so. This formulation, express their views, public meetings, written submissions and convened meetings, their actual meaning has political constraint and does not imply a referendum. The provision's wording is short of equivalence to a referendum. This is worsened by Section 328(8), stating that, subsections (6) and (7) must not both be amended in the same Constitutional Bill nor may amendments to both subsections be put to the people in the same referendum. Vexatious, as the Constitution draws a separation in application of Section 328(4) and Section 328(6) provisions, as reflected by the requirement of a referendum on Section 328(6)(a) and (b), in instances where a Constitutional Bill seeks to amend Chapter 4 and Chapter 16. This means Section 328(4) and Section 328(6) are independent in application to address matters related to term-limits and amending Chapter 4 and Chapter 16, therefore can not be undertaken in a single Constitutional Bill nor be applied interchangeably on matters related to these two issues. This creates a dilemma as to where exactly should referendum be conducted when amending the Constitution. There is no living precedence to follow either, thus, presenting a constitutional quagmire.
It is disingenuous to claim the Amendment Bill (CAB3) can not pass without a referendum. It may only be subjected to a referendum for the sake of democracy provided there is sufficient public demand. This is so because, Zimbabwe Constitution 2013, provide three prospective Bills at promulgation.
1. Constitutional Bill.
2. Term-limit Bill.
3. A Constitutional Bill to Amend Chapter 4 or Chapter 16.
Note: Section 328(a) and (b) provisions provide with particularity, a referendum as a requirement for any Constitutional Bill that seeks to amend Chapter 4 and Chapter 16, whilst other Constitutional Bills are left to the requirements of Section 328(4). From objective angle, Section 328(4) is not constitutionally adequate to justify a referendum and its expression may mean public meetings, writtens submissions and convened meetings are politically equivalent to citizenry democratic participation for the amendment to pass.
Therefore yes, the amendment may pass without a referendum, however for the sake of democracy it may be subjected to a referendum on the ground of sufficient public demand.
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