By Prof. Arthur Guseni Oliver Mutambara
On 20 April 2021, Zimbabwe's House of Assembly (the Lower Chamber) passed the Constitution of Zimbabwe Amendment (No. 2) Bill by a two-thirds majority vote of 191 to 22 Members of Parliament.
On 4 May 2021, this legislation went through its third and final reading in the Senate (the Upper Chamber), where it was passed by a two-thirds majority poll of 65 to 10 Senators.
The Bill now awaits the President's signature, after which it becomes the Constitution of Zimbabwe Amendment (No. 2) Act, thus effectively changing Zimbabwe's supreme law, which was adopted by 94.5% of 3.3 million people who voted in a referendum on 16 and 17 March 2013.
In the main, this amendment seeks to change the retiring age for Judges, expunge the public interview process for Judges, remove the presidential running mate clause, extend the women’s quota, introduce a youth quota, increase the number (from 5 to 7) of Cabinet Ministers chosen from outside Parliament, and vary the devolution clauses.
Prior to all this was the Constitution of Zimbabwe Amendment (No. 1) Act which was belatedly (after the Bill had lapsed by operation of law) and hence controversially passed in the Senate on 6 April 2021.
The main effect of this Act is to change the constitutional procedure for the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court.
These key appointments will now be made by the President after consultation with the Judicial Service Commission, with the explicit exclusion of public nominations and public interviews which were originally provided for in the national charter adopted by the generality of the people of Zimbabwe in March 2013.
Before we delve into the analysis of details of the Constitution of Zimbabwe Amendment No. 2 and assess the legislation’s implications for democracy and constitutionalism, we must revisit our understanding of these two loosely used and never-properly defined terms. What is democracy? What is constitutionalism?
Democracy is a form of government in which the people have the unfettered authority to choose those that govern them and legislate on their behalf.
US President Abraham Lincoln taught us that democracy is a government of the people, by the people, for the people.
We can also say democracy is the summation of the experiences of struggle by the generality of the people as they endeavour to improve their material conditions.
Now, given this understanding of democratic values, ethos and principles, here are the questions we have to address:
Does Amendment No. 2 advance these aspirations and ambitions?
Are the people at the centre of this Amendment No. 2?
Does it promote a government of the people, by the people, for the people? How is the social and economic welfare of Zimbabweans improved by Amendment No. 2?
How does the amendment improve our economic fortunes as citizens?
Does the amendment enhance democracy, or it consolidates authoritarian rule?
There are two legal constructs of interest to our discussion of the Constitution of Zimbabwe Amendment No. 2: constitutionalism and constitutionality.
Of course, our topic is focused on the former, and we will concentrate on that.
However, the amendment also has dire implications for the latter. Constitutionality refers to the quality of being in accordance with the Constitution.
Is Amendment No. 2 in accordance with the Constitution? We must answer this question.
There are three distinct but related aspects to constitutionalism that we must clearly understand as we explore the implication of Amendment No. 2.
Firstly, constitutionalism is the tradition, culture and behaviour of respecting the Constitution.
It is a value system developed and nurtured over time through social mobilisation, civic education and exemplary leadership.
Secondly, constitutionalism is a governance doctrine that emphasises limited government or limited power of the state.
It is the opposite of arbitrary powers. Constitutionalism recognises the need for a government with powers but at the same time insists that limitations be placed on those powers.
Finally, constitutionalism is the unequivocal commitment to the Declaration of inalienable Rights (Bill of Rights) and strict adherence to Functional Separation of Powers of the Executive, Legislature and Judiciary.
Now, giving these diktats and imperatives of constitutionalism, here are the questions we have to address:
Is Amendment No. 2 respectful of the supreme law?
Is it in compliance and accordance with Constitution?
Is it within the spirit of the Constitution?
Is it in breach of the Constitution?
Is Amendment No. 2 promotive of limited government?
Does it enhance people’s participation in the exercise of the powers of the state?
Is Amendment No. 2 promotive of the functional separation of powers?
Amendment No. 2: Analysis of the Gory Details
With definitional and conceptual matters out of the way, let us get into the details and import of Amendment No. 2.
As stated earlier, this legislation was passed in the Lower House on 20 April 2021 and in the Upper House on 4 May 2021.
It was preceded by the Constitution of Zimbabwe Amendment (No. 1) Act which was passed illegally in the Senate on 6 April 2021.
Why and how? The Amendment (No. 1) Bill failed to get two-thirds majority support in the Senate in 2017.
Thereafter, the legislation lapsed by operation of law when the 8th Parliament of Zimbabwe was dissolved before the July 2018 general elections.
Hence, the Constitution of Zimbabwe Amendment (No. 1) Act was passed illegally. It is an unconstitutional law and is currently being challenged in the courts for violation of Section 147.
The Senate passed a non-existent Bill, thus creating a legal nullity. What a travesty of common sense! Indeed, an exercise in legislative delinquency and idiocy.
Coming to Amendment No. 2, yes, the women and youth quotas are progressive, but why rush and embrace a poisoned chalice?
We are two years away from 2023. Where is the urgency on the quotas? Of course, the junta has a deadline of 15 May 2021. Why join and enable the regime's nefarious agenda?
The change in the retiring age of Judges from 70 to 75 is effectively changing the term limits of the Judges.
Term limits can only be changed through a referendum, and the current office-bearers are not supposed to benefit from that extension.
Hence Amendment No. 2 violates Section 328(7), creating a fatal and incurable illegality.
The attempt to differentiate a term limit from an age limit is a false distinction, which should be dismissed with the contempt that it deserves.
A term limit is stipulated and defined by age. Thus, when one changes the age limit, it is the same as changing the term limit. Pure and simple. Is this not obvious?
Thus, it can be said without equivocation nor ambiguity that Amendment No. 2 seeks to change the term limits for Judges (any alteration that requires a referendum) and also have the current Judges benefit from that adjustment, an ambition which is expressly forbidden by the supreme law.
These are two distinct violations of the Constitution of Zimbabwe. What crass and belligerent lack of constitutionalism!
Two devastating strikes against constitutionalism – piercing the heart of the doctrine!
In the Constitution of Zimbabwe, the motivation for having a running mate clause is to avoid a situation where the country’s President (or any president of a political party) appoints or allows the ascendancy of weak, mediocre and disposable Vice Presidents, who are never meant for succession or assumption of the country's presidency.
Classic cases of this malady are (1) how Robert Mugabe used and abused Joice Mujuru and (2) Morgan Tsvangirai's similar treatment of Thokozani Khupe.
These two examples aptly describe the mischief that the supreme law sought to cure.
We want clear, well-defined and predictable leadership succession in political parties, leading to the same effective passing of the baton with respect to the national presidency.
The beauty and efficacy of the running clause were clearly demonstrated with the death of Bingu wa Mutharika in 2012 (Joyce Banda smoothly took over) and the demise of John Magufuli (Samia Suluhu Hassan smoothly ascended to the throne).
Effectively and consequently, the running mate clause allows voters to be involved in the party and national succession.
The choice of Vice Presidents becomes an election issue.
So why does the leadership of ZANU-PF (and other political parties) oppose the running mate clause?
It is because the President of the party in cahoots with his or her bootlickers and sycophants prefer useless, incompetent, vulnerable, non-threatening, unelected and unelectable Vice Presidents who can be easily fired and are neither guaranteed of succession nor the national presidency.
At the centre of the aversion for the running mate, clause we find the inordinate lust for unbridled personal power, the objective of managing party factions to one’s selfish ends, the capacity to undermine rivals and the ambition to single-handedly control both party and national succession.
An elected Vice President Chiwenga will be a more assertive national leader and a formidable rival in the party to Mnangagwa. He will be difficult to remove or manoeuvre from office while clearly guaranteed to be the successor in ZANU-PF and maybe the country.
No, no, all that describe a totally undesirable scenario! ZANU-PF succession and that of the nation must be left to an insecure Emmerson Mnangagwa together with his sycophants and bootlickers who consist of clansmen and tribesmen.
This is why the running mate clause is despised.
With respect to the changes to the devolution clauses, the starting point is acknowledging ZANU-PF's unequivocal, absolute and indisputable lack of commitment to devolution.
Eight years later, there is no implementation of most devolution provisions in Chapter 14, Sections 264 to 273. Why? Why have these clauses not seen the light of day!
More specifically, Section 264(1) stipulates that: ‘Whenever appropriate, governmental powers and responsibilities must be devolved to provincial and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively.’
Section 264(2) outlines ‘the objectives of the devolution of governmental powers and responsibilities to provincial and metropolitan councils and local authorities’ which include (a) ‘to give powers of local governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them’ and
(b) ‘to promote democratic, effective, transparent, accountable and coherent government in Zimbabwe as a whole;’ ….
(d) ‘to recognise the right of communities to manage their own affairs and to further their development’;
(e) ‘to ensure the equitable sharing of local and national resources; and
(f) ‘to transfer responsibilities and resources from the national government in order to establish a sound financial base for each provincial and metropolitan council and local authority.’
Needless to say, eight years later, the envisaged metropolitan and provincial councils, and the prescribed leadership thereof, have not been established.
None of the stated objectives of devolution has been achieved. There has not been even a feeble or measly effort by the ZANU-PF government towards their attainment. Why is this the case?
Now it is being suggested that Amendment No. 2 is promotive of devolution. If ZANU-PF