Constitution now fatally flawed (08-02-07)

ives President Robert Mugabe excessive powers that place him above the law itself, political analysts said this week.
They spoke amid a growing clamour by political and civic groups to trash the ceasefire document that was agreed by Mugabe’s Zanu party and Ian Smith’s regime at Lancaster House in 1979.
Analysts said to a large extent, Zimbabwe’s constitution was drafted by the British administration who brokered the cease-fire which ended the war between the Rhodesian government and black Zimbabweans who were fighting for their independence.
It was obviously not a constitution by the people and certainly needed to be amended in many ways, they said.
Unfortunately, the 17 amendments, which were later made to the constitution made it even worse than it had been when Zimbabwe became independent in 1980. The amendments were done without the participation of the people, and most of the changes were designed to give more power to the President.
The changes have made President Mugabe virtually unanswerable to anyone. As executive president, he is the head of state, head of government, commander-in-chief of the armed forces, chancellor of all state universities and patron of this and that. He appoints High Court and Supreme Court judges, police commissioners, army commanders, and permanent secretaries of all government ministries without any obligation to listen to the public, the judiciary or Public Service Commission.
He appoints commissions of inquiry and is not obliged to make the findings public. Just recently Mugabe covered up a scandal at the giant steel works at Redcliff, Ziscosteel after massive looting by his top lieutenants, including his two, second secretaries, Joice Mujuru and Joseph Msika.
One of the most notorious changes made to the constitution was the creation of the Political Parties Finance Act, which entitles the ruling party to millions of public funds a year. The funding is dependent on the opposition’s proportional representation in Parliament. With the opposition MDC with 42 of the 150 seats, this means almost two thirds of public funds meant for Parliament goes to the governing Zanu (PF) party. Zanu Ndonga and Professor Jonathan Moyo each get 1/150th of the fund.
The other notorious amendment to the constitution gave the president the power to appoint 30 non-constituency MPs on top of the 120 elected ones. This would give the ruling party an unfair advantage over other political parties in the event of viable opposition in Parliament since those 30 non-constituency MPs chosen by the president would obviously be members of the ruling party. This means the ruling party will need only 46 of the 120 contested seats to have a majority in Parliament.
Mugabe also appoints members of the Zimbabwe Electoral Commission. For the above reasons, the opposition MDC threatened to boycott the March 2005 legislative election. Tendai Biti a constitutional lawyer and also MDC secretary general said the Presidential Powers Act is a draconian piece of legislation, which Mugabe has unashamedly used to benefit his political party. He cited the shifting of the deadlines for submission of nomination papers in elections to accommodate members of the ruling party, Zanu (PF). Under the Presidential Powers Act, Mugabe can dissolve Parliament and rule by decree if Parliament wanted him out office by passing a vote of no confidence.
Another constitutional law expert, Professor Welshman Ncube, said the unlimited powers vested in Mugabe made nonsense of trying to distinguish between the Executive, Legislature and the Judiciary as Mugabe is under no obligation to obey the Legislature and the Judiciary.
“Both the Legislature and the Judiciary can be bullied into submission through the excessive powers the president wields,” Ncube said.
Mugabe in 2005 used his powers to take away the rights of whites whose land has been designated for acquisition from any form of legal recourse.
He also invoked his powers to search and seize currency from hapless traders and ordinary people.
The above facts and many others too numerous to mention explain why Mugabe is so hostile to anyone who talks about the need for a new constitution. Masvingo Senator Dzikamai Mavhaire, who was co-opted into the Politburo last week, once moved a motion in Parliament calling for a review of the constitution and the limiting of the presidential term. He was suspended from the ruling party indefinitely, and only made a come back last year.
Perhaps he should not have been specific about his feelings on constitutional changes, because it is the bit on calling for the limiting of the presidential term of office, which stirred the hornet’s nest. Since Mavhaire’s unceremonious suspension from the governing party, other Zanu (PF) MPs are scared stiff to even discuss anything to do with the constitution, lest the axe also falls on them.
However, civil society has also stepped up its pressure on government to have the constitution changed. The National Constitution Assembly, a coalition of human rights organisations, trade unions, Christian organisations, business organisations and political parties has been spearheading constitutional reform and says holding elections under the current constitution is a waste of time. The NCA has staged a series of demonstrations to press for its demands. The NCA says it also opposed to President Mugabe’s plan to postpone presidential elections, scheduled for March 2008 to 2010 under the pretext of harmonization. Charismatic NCA chairman Dr Lovemore Madhuku said: “The aim of the assembly is to create an awareness among the people through debate on the need for a new constitution and to contribute to a democratic change that will lay the foundation for a transparent and accountable government.”