Constitution Watch Content Series

Constitution Watch Content Series 8/2011 - 15th October 2011

The Legislature Part I

The legislative branch of government is the branch of government which makes laws for the country. A legislature embodies the idea that people are the source of political power in the State and should control the law-making process. It is an institution of representative democracy under which the people elect representatives to act for them, as opposed to direct democracy under which the people enact legislation themselves through referendums or mass assemblies.

In this country the legislative branch is constituted by Parliament, which is divided into two separate chambers or houses, namely the Senate and the House of Assembly. Zimbabwe therefore has a “bicameral” or two-chamber legislature. This was not always the case. From 1923 until 1969 this country had a single-chamber (or “unicameral”) legislature. Then in 1970 a Senate was established and legislative power was divided, as now, between the Senate and the House of Assembly. Zimbabwe continued to have a bicameral legislature until 1990, when the Senate was abolished and a single-chamber Parliament was created. In 2005 the Senate was re-established and our legislature has remained bicameral.

Now that Zimbabwe stands poised to draft a new constitution, the structure and functions of the legislature, and its relationship with other branches of government, must be considered afresh. This Constitution Watch looks at issues facing the constitution-makers under the following headings:

1. Should the legislature be unicameral or bicameral (i.e. should it consist of one chamber or two)?

2. If there are to be two chambers, what should their relationship be to each other?

3. As to the membership of the legislature:

• Should all the members be elected?

• Should members of Executive (i.e. Ministers) be allowed to sit and vote in the legislature?

• If a member leaves the party to which he or she belonged at the time of his or her election, should that party have the right to have the member’s seat declared vacant or can she or he “floor-cross”, (i.e. join another party) or stay on as an independent. Or if a member who won a seat as an independent joins a party, can he or she remain an MP and represent that party, or should there be a by-election so that the constituency can decide.

• What privileges should members have?

4. As to legislation:

• Should legislation passed by the legislature require the assent of the Head of State?

• Should the procedure for passing legislation be laid down in the Constitution or left to be worked out by the legislature in its standing orders?

5. What powers should the legislature have over national finance?

6. Should the Head of State have the power to dissolve or adjourn the legislature and to fix the dates of its sessions?

These issues will be dealt with in turn.

1. Should there be a Bicameral or Unicameral Legislature?

The answer to this question depends on the answers to two subsidiary questions:

• Are there interest-groups who need to be represented in a separate chamber?

In Britain there were historical reasons based on class stratification for having two houses and Zimbabwe “inherited” the system, but these reasons do not apply in Zimbabwe. But there may be interest groups such as women, the chiefs, disabled persons, etc, who may not get adequate representation in a directly-elected single-chamber Parliament.

If they are to be given separate representation, then procedures must be laid down carefully in the constitution and the electoral law to ensure that the electoral or appointment processes are fair and not dominated by the party in power. Alternatively specific representation could be given to provinces in the Senate; for example the US Senate has equal representation for all member states and South Africa’s upper chamber is the National Council of Provinces.

• Would a second chamber, i.e. a Senate, significantly improve the quality of legislation?

The main justification for a Senate which has been advanced in Zimbabwe is that it would be composed of mature statesmen and women who would reconsider legislation passed by the lower house and, where necessary, curb the excesses of the people’s elected representatives. If that was the hope of proponents of a Senate, they must have been disappointed. When one compares legislation passed in the years when we had a Senate with the legislation passed by a unicameral Parliament, one finds no noticeable difference in quality.

Most of the amendments the Senate has made to legislation over the years have arisen from second thoughts on the part of the Government rather than from initiatives by senators. It has also been suggested that creating a Senate would prevent the fast-tracking of legislation which makes Parliament a rubber-stamp of the Executive, but the present Senate been has not been able to achieve this.

Set against the negligible advantages of having a Senate in Zimbabwe there is a serious disadvantage: cost. The expense of having a second chamber is considerable and the country can ill afford it. The only other reason for a Senate –usually unspoken – is that it has proved a convenient depository for political parties to reward their members. This reason does not benefit the nation as a whole and is no justification for a Senate.

On balance, therefore, it would be better for the country if the new constitution provided for a unicameral legislature.

2. Relationship Between the Chambers of a Bicameral Legislature

If there is to be a bicameral legislature, the new constitution will have to regulate the relationship between the two chambers. The present constitution does this. Generally, both chambers have equal law-making power and all Bills must be passed by both chambers before they can be sent to the President for assent and promulgation as Acts of Parliament. But:

• The House of Assembly has primary responsibility for initiating and passing “money Bills”, i.e. Bills relating to taxation and State revenues (para 6 of Schedule 4 to the Constitution). The Senate cannot initiate such Bills and cannot amend them if they have been initiated in the House of Assembly.

• If there is disagreement between the Senate and the House of Assembly over whether or not to pass a Bill or whether or not to amend it, the Senate can delay the Bill for 90 days only. After that time, the House of Assembly can resolve to overrule the Senate and send the Bill to the President for assent (para 3 of Schedule 4).

• The House of Assembly also has the ultimate say in whether Parliament will accept Parliamentary Legal Committee adverse reports on statutory instruments.

If there is to be a Senate in the new constitution, and if most of its members are to be elected by ordinary voters, its legislative powers should probably be equal to that of the lower House; in other words, it should have the same power as the lower House to initiate, amend and reject Bills, including money bills. Which brings one back to the question – what is the point of having a Senate?

3. Membership of the Legislature

Should all the members be elected?

Ever since Independence some members of the legislature have been appointed by the President:

• In the original Lancaster House constitution, six senators were appointed by the President on the advice of the Prime Minister (section 33(1)(d) of the original Constitution), but there were no appointed members of the House of Assembly.

• When the Senate was abolished in 1989 by Constitution Amendment No. 9, provision was made for the unicameral Parliament to have among its members eight Provincial Governors appointed by the President and an additional 12 presidential appointees

• Now that the Senate has been reinstated, it contains 10 Provincial Governors appointed by the President and five other appointed members (section 34(1)(b) & (e) of the Constitution as amended by Constitution Amendment No. 18). In addition the GPA has added further appointed members in the form of Vice-Presidents, the Prime Minister, Deputy Prime Ministers and their proxies (article 20.1.8 of the GPA) and these additional appointees are spread between the two Houses.

The appointment of members of the legislature by the President goes against the doctrine of separation of powers, under which none of the three branches of government should control or unduly influence the others. In the new constitution, therefore, neither the President nor the Prime Minister (if there is one) should have power to appoint members of the legislature. All the members should be elected.

How they should be elected will be dealt with in another Constitution Watch which will consider electoral systems. One point should be made here, however: if there is to be a Senate, there should be some differentiation between the election of senators and the election of members of the other chamber, otherwise the Senate will be a clone of the lower chamber. This differentiation may be achieved in either of two ways:

• By making the electorate different for senators and members of the other chamber. For example, senators could be elected on a provincial basis while members of the other chamber are elected on a constituency basis. Alternatively, some senators could be elected by institutions such as universities (which is the case in Ireland), professional associations or other bodies representing important sectoral interests such as women, chiefs, disabled, etc [see above].

• By providing different electoral systems for the two chambers. For example, senators might be elected on a proportional representation system and members of the other chamber on a first-past-the-post basis.

Should members of the Executive be allowed to sit and vote in the legislature?

If the doctrine of separation of powers were to be applied strictly, members of the Executive (i.e. Ministers) should not be members of the legislature and should not be allowed to take part in debates of the legislature. The doctrine cannot be applied so strictly, however, because the executive and legislative branches of government must co-operate to some extent; the executive must have some way of ensuring that its proposals for legislation are presented in the legislature. It is also important for the legislature to be able to question Ministers and hold them to account. Ways of achieving this vary from country to country:

• In France, Ministers are not members of the legislature but are entitled to address the Senate and the National Assembly.

• In the United States, Cabinet members are not members of Congress, but the Vice-President is a non-voting president of the Senate, and the President is entitled from time to time to address Congress on the state of the nation.

• In Britain, all Ministers including the Prime Minister must be members of one or other of the Houses of Parliament and the Executive effectively controls parliamentary business.

Zimbabwe largely follows the British model. No one can hold office as a Minister for longer than three months unless he or she is a member of the Senate or the House of Assembly (section 31E(2) of the Constitution) and Ministers are entitled to take part in the debates of both chambers (section 47). It is debatable whether the new constitution should change this. It is noteworthy that none of the draft constitutions that have been put forward to replace the present constitution – the Constitutional Commission draft, the NCA draft, the Kariba draft or the Law Society model constitution – seeks to change the position very much:

On balance, therefore, the new constitution should probably preserve the current position more or less unchanged: Ministers should be drawn wholly or mainly from members of Parliament, and they should have the right to take part in the debates in either chamber.

If this position is unchanged under the new constitution, ways will have to be found of counterbalancing the influence of the executive by enhancing Parliament’s independence (perhaps by making it easier for private members to introduce their own legislation and to alter legislation sponsored by the executive).

To be continued in Part II

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