A raft of constitutional and legislative reforms to deepen
civil liberties, individual rights, extend the women’s quota system and
entrench political and electoral reforms, are expected to be gazetted next
month under an omnibus Constitutional Amendment Bill, it has been learnt.
Once gazetted, the public will have the opportunity to
critique the legislative proposals, which were compiled by an inter-ministerial
committee set up in March this year, before they are tabled before Parliament
for debate after three months.
Cabinet recently approved principles of the proposed
constitutional amendments, which essentially give the Attorney-General’s Office
leeway to begin drafting the envisaged provisions.
The legislative proposals include removing “contradictory
and conflicting clauses” and refining provisions borrowed from other
jurisdictions.
It is believed that some clauses are making it difficult to
harmonise laws with the Constitution.
Government also intends to enact constitutional provisions
that create the Office of the Public Protector and house the Office of the
Chief Secretary to the President in the country’s supreme law.
Justice, Legal and Parliamentary Affairs Minister Ziyambi
Ziyambi told The Sunday Mail that the Bill would be gazetted before Parliament
adjourns for the festive season.
“The AG’s Office has started drafting and once they have
finished, we will take it to Cabinet for approval and then send it to
Parliament for gazetting,” said Minister Ziyambi.
“The Constitutional Amendment Bill has to be gazetted for
three months. So we are hoping that by the time we go for Christmas, we should
have sent it for gazetting so that by early April we would have introduced it
for debate.”
The wisdom of creating the Public Protector’s Office,
Minister Ziyambi said, was to provide a remedial avenue for individuals or
entities who feel aggrieved or affected by the administrative inefficiencies of
the Executive and or arms of the State.
While it might seem that such functions could be addressed
by the Zimbabwe Human Rights Commission (ZHRC), the body is, however,
“concentrating more on human rights issues”, he said.
Government, therefore, believes the Public Protector’s
Office can ably protect the public against abuse of power and maladministration
by the State and public institutions, and officers of such public institutions.
“So if one is aggrieved by the administrative conduct of
the State, one is not getting much help from the human rights commission.
“We feel that, consistent with other countries like South
Africa, who have both a human rights commission and a Public Protector, we
should have a public protector too, to cater for that function,” Minister
Ziyambi said.
Minister Ziyambi said ignoring the Office of the Chief
Secretary in the Constitution was a glaring omission that had to be fixed.
A memorandum detailing the amendments gleaned by this paper
shows that the contemplated amendments include de-linking the national
population census from the delimitation exercise (which sets electoral
boundaries for elections) to prevent a possible administrative nightmare,
especially in the 2023 harmonised elections.
The country’s next population census, which informs the
administrative boundaries used to delimit constituencies, falls due in 2023,
which coincides with the plebiscite.
The Zimbabwe Electoral Commission (Zec), which is
constitutionally charged with running local elections, believes holding the two
major events in the same calendar year, in addition to being financially
onerous, might scupper the efficient running of the polls.
The memorandum reads: “Section 161 of the Constitution
deals with delimitation of electoral boundaries after a population census.
“If, however, the delimitation of electoral boundaries is
completed less than six months before polling day in a general election, the
boundaries so delimited do not apply to that election
“The delimitation of electoral boundaries and conduct of a
population census are two separate exercises.
“In drawing electoral boundaries, Zec relies on voter
population and does not take into consideration minors and non-citizens as in a
population census.
“Therefore, linking an electoral-boundaries delimitation
exercise to a population census is skewed.”
Furthermore, the sweeping reforms will also establish
metropolitan councils, which are a critical pillar to Government plans to
devolve State power; remove the running-mates clause for Presidential elections
(Section 92(2)); raising the retirement age for senior judges; and enabling the
President to appoint the Prosecutor-General (Section 259(3)).
Notably, the running-mate clause — which was suspended for
10 years after a new Constitution was enacted in 2013 — is considered
objectionable because it is peculiar to local politics and also out of sync
“with the practice in other countries in the SADC region”.
Further, a proposal is being made to raise the retirement
age for Supreme Court and Constitutional Court judges, including the Deputy
Chief Justice and Chief Justice from 70 years to 75 years.
Sitting judges will also be exempted from public interviews
on promotion.
In addition, the provision where the Prosecutor-General is
appointed by the President after consultation with the Judicial Service
Commission (JSC) and removed in the same manner as a judge, is understood to
have been imported from Kenya “in toto” by the framers of the 2013
Constitution.
But Government claims international best practice
prescribes that the President has the prerogative of appointing the PG.
“It is, therefore, proposed that the Constitution be amended
by empowering the President to appoint the Prosecutor-General, and further the
procedure of removal of a judge should not apply to the removal of a PG.
“Instead, it is proposed that the President be empowered to
set up a tribunal to inquire into the removal of a Prosecutor-General should
the question of his removal arise,” adds the memorandum.
The proposed changes will also include stating grounds for
removal of a PG from office.
Co-chair of the Constitution Parliamentary Committee
(Copac), which was key in drafting the 2013 Constitution Mr Paul Mangwana told
The Sunday Mail that a “constitution is a living document and you find that in
every constitution, there is a clause which talks about the amendments to the
constitution.”
Attempts to get a comment from Mr Douglas Mwonzora,
his co-chair, were fruitless by the time
of going to print.
However, The 2013 Constitution, said Mr Mangwana, was a
product of compromise between the two parties – Zanu-PF and MDC – which were
heavily involved in its drafting.
“There were clauses that were there which we simply had to
put there in order for us to get that Copac thing succeed.
“So one of the clauses which actually was resolved at the
last minute, at the end of the whole process, was the clause to do with Presidential
running-mates. The Zanu-PF position was not to go with running-mates, it was
from the MDC and we had to compromise to have that Constitution approved. That
is also the reason why that issue was supposed to start 10 years after the
coming in of the new Constitution,” said Mr Mangwana, who is also Secretary of
Legal Affairs to the Zanu-PF Politburo.
Views that found their way into the supreme law came from
the people, political parties, technical experts and drafters, he added.
“The proposed amendments are sensible; we expect the
MDC-Alliance to also support the changes because they are in the best interest
of the country and smooth governance of our country,” he said. Sunday Mail
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