By Kenias Shonhai
The constitution of Zimbabwe was enacted in 2013 after a long and winding process. The Government of National Unit (GNU) mooted the idea of a ‘people driven’ constitution in 2009. It therefore took 5 years to come up with the draft constitution which was widely endorsed by the people of Zimbabwe in a referendum. It was the spirit of the new constitution to open up the democratic space for the people of Zimbabwe and entrench independence of institutions which supports democracy. This was done through enactment of a number of constitutional provisions. Separation of powers was one of the pillars to strengthen democracy. This was a welcome development for a better and progressive Zimbabwe. In short, the 2013 constitution was touted by many as the most progressive constitution on the continent.
Constitutions are meant to be living documents which can mutate to reflect the needs of a society at a particular time. The mutation of a constitution must be taken seriously and must be as a result of public consultations. Constitutional amendments should not be a rushed job but a well thought and consultative process. Less than a decade of its existence, eight years precisely the constitution of Zimbabwe is going for its 2nd patch. What is more worrying is the supersonic speed at which the second amendment is going through. More worrying is that the Parliamentary democracy has been decimated, through too many recalls and suspended by-elections to fill in the gaps. All the recalls are from the opposition political parties. These recalls have greatly reduced ideological contestation in Parliament which is a hallmark of a healthy Parliament. Parliamentarians barely debate anything in Parliament now.
Constitutionality of amendment No 2.
Constitution of Zimbabwe Amendment (No. 2) Bill is not an ordinary Bill: it will amend the Constitution, and section 328 of the Constitution clearly lays down the procedure that has to be followed for such Bills:
- The Speaker of Parliament must give at least 90 days’ notice in the Gazette of “the precise terms of the Bill”. This allows the public to see precisely what amendments are proposed and gives them three months in which to discuss the amendments and lobby their members of Parliament for and against them.
- During the 90-day period Parliament must convene meetings and provide facilities for members of the public to express their views on the Bill.
- At its final reading in each House of Parliament the Bill must be passed by a two-thirds majority of the members of the House concerned.
This has not been followed and it raises fears as to the constitutionality of such a Bill. Maybe the critical question to be asked is why fast tracking such an important Bill. The constitution was made by the people after extensive consultations. Furthermore the constitution was passed through a referendum. It is now shocking that after going through such tenacious process which involved the majority of people only a handful within a shortest period of time can temper with it.
Effect of the Bill.
The Bill has sailed through the National Assembly without any hurdles and it has to go to the Senate just as a formality before it is send to the Parliamentary Legal Committee (PLC) to check on its constitutional compliance. Depending with the comments from the PLC, it will either go back to the Senate or to the National Assembly for its transmission to the President for signing. As soon as the President ascents to the Bill, it becomes law. This Bill has altered a number of Constitutional provisions which were meant to safeguard the independence of the Judges, the investigative independence and leeway of the Zimbabwe Human Rights Commission among other things. It has introduced the Public Protector an institution which was rejected by the people during the constitution making process. The running mate during the presidential election has been deleted. The judges will be appointed by the President and their tenure will be at the benevolence of the President. There is no more certainty of the independence of the judiciary. Some important function of ZHRC have been taken off it and placed under the Public Protector an entity which is not as independent as the ZHRC is. -The ZHRC is being weakened.
To Government– the government through the Minister of Justice who has taken oath of office to respect, protect and fulfill the constitution we say hands off the people’s constitution. Any amendment of any legal instrument must not be self-serving. It is true that the law must serve the people hence any legal document must be a living document, there should be a sense of consistence. If indeed the amendment is for the people, why then rush such an important process? Why not follow due process and give it ample time.
To Parliament– you are elected individual who must represent the electorate. It is your constitutional duty above everything to take heed of the people’s concerns and not blindly follow the party whipping system. Citizens rejected the bill during public hearings but the House of Assembly voting does not reflect that. The amendment No 2 is bad in both principle and at law. The PLC must exercise its mind without fear or favour and pass an adverse report of the amendment.
To the President– as the head of State and government, you have taken an oath of office to respect the constitution and this is a golden test for your patriotism. Your signature on a rushed Bill which violates the constitutional provisions will be a mark of your disregard of the oath of office.
To the members of the public– let the citizens resist, in a lawful way, the passing of this Bill. Every citizen has a constitutional duty to resist the violation of the constitution by political power. The losers are the people of Zimbabwe, for judicial independence is not a privilege of judges, but a right of every citizen.
Kenias Shonhai is a Projects Lawyer at the Zimbabwe Human Rights Association. Comments to this article can be send to firstname.lastname@example.org For more information about our work, please visit our website on www.zimrights.org.zw