The Zimbabwe NGO Forum (the Forum), notes with concern ongoing attempts by the government of Zimbabwe to amend the Constitution following the recent gazetting by the Clerk of Parliament of the of Constitution of Zimbabwe Amendment (No.2) Bill (the Bill), initially on 31 December 2019 and then on 17 January 2020, presumably to correct procedural anomalies in the original gazetting. If the Bill was to pass through, the government would have amended the Constitution twice within a period of just over six years. This move is retrogressive and erodes the tenets of democracy.
The Forum notes with concern that despite the significance of the changes being sought through the Amendment Bill, there have not been any attempts by the government to explain why it is necessary to tinker with the Constitution, which is the supreme law of the land in the manner proposed or at all. This goes to the core of constitutionalism and rule of law, considering the amendments are being sought against the background of non-compliance with the Constitution by the government, evidenced by the unduly prolonged constitutional alignment process and non-implementation of some of the provisions of the Constitution. Some of the provisions being amended have not even seen the light of the day. The people of Zimbabwe have not been given the opportunity to experience fully the Constitution which the citizens adopted through a decisive referendum in 2013. This move by the government disregards the wishes and aspiration of the people of Zimbabwe. Parliamentarians and the executive must hold sacrosanct the will of the people and not undermine it.
The proposed amendments follow the first amendment to the 2013 Constitution which came into effect on 7 September 2017, giving the President powers to unilaterally appoint the Chief Justice, Deputy Chief Justice and Judge President of the High Court. The omnibus bill proposes sweeping changes to allow the President to unilaterally appoint and remove the Vice President(s) outside a popular mandate; giving the President more powers in the appointment and extension of tenure of judges of superior courts; extending the women’s quarter system and creating additional 10 seats for the youths; limiting the powers of the Zimbabwe Human Rights Commission by placing some of its functions in the hands of a Public Protector appointed solely by the President; cutting on Parliamentary oversight over agreements entered into by the executive with foreign organizations and companies; extending Presidential powers in the appointment and removal of the Prosecutor-General, and extending executive representation by unelected officials in Cabinet, among others.
The running theme in the proposed amendments is cutting back on checks and balances and separation of powers. This undermines the foundational tenets of democracy as power is concentrated in a medieval monarch-type of the executive head of State and government with extended powers to hire and fire constitutional officers and make far-reaching decisions with limited oversight. The nature of the amendments violates established international norms, accepted into our constitutional order by the Constitution. The proposed amendments take Zimbabwe back to the Lancaster House Constitution, whose extensive executive powers and attenuated oversight mechanisms were overwhelmingly rejected by Zimbabweans on 16 March 2013, as they elected unto themselves a more democratic and progressive Constitution more in tune with their wishes and aspirations.
Amendments ostensibly proposed to further equal representation by extending the women’s parliamentary quota and introducing a youth quota, mask reality and have unintended consequences of achieving the opposite. Global trends make clear that driving women and youth representation in key decision-making organs of State by means of quota allocation undermine real gender and youth empowerment, and amounts to treating symptoms instead of the problems. Real transformation is achieved when more women and youth access the top echelons of power through efforts made to ensure level competing for turf for women and youth. In any event, the Constitution mandates as 50/50 gender representation. It is also a fact that under the current 9th Session of Parliament, elected Parliamentary representation of women dropped relative to the 8th Session. Extending the women’s quota is a way to mask these real trends. Likewise, the token creation of 10 youth quota seats in Parliament inadvertently displays the skewed demographic representation in Parliament in a country in which youth constitute the majority of the adult population, undermining actual work needed to ensure effective, meaningful and demographically-proportionate youth representation in Parliament.
The gazzetted Bill wholesomely undermines constitutionalism, separation of powers, and checks and balances on the executive powers of the President. As such, the Forum, as a principled collective vested in fostering a culture of rule of law, human rights and respect to constitutionalism, takes a firm position against attempts to re-arrange the constitutional order in an undemocratic and unprincipled manner that is devoid of consultation which should be pivotal considering that it was citizens who voted for the constitution. The Forum questions the basis and influences of the amendments. There were no public consultations in any form on whether the proposed amendments are needed. The Bill in its entirety is unnecessary, and there is no reason of functionality or substantive dissonance with the constitutional order articulated to justify the amendments. Even if there was a “mischief” to be corrected, resorting to mutilating the supreme law is reserved as the last resort.
Zimbabwe’s nearly seven-year-old Constitution was adopted through a nation-wide referendum that was supported by over 95% of the voters – making it a product of an almost unanimous vote. Through the COPAC process, the country made significant investment into redefining its social contract to take it into its future. Barely a decade, those entrusted with the mandate to lead the operationalization of that social contract and charter the country into its future, are leading a process of dismantling and decimating that social contract for no apparent reason of progress and national advancement. A government that cuts back on a social contract to which it fully participated in its making, unmasks insincerity on its part. The executive is seeking to reverse the democratic virtues encoded in the supreme law, and for the second time in a short space of time, is seeking to cut back on democratic tenets and re-arrange the democratic order. While the Constitution does allow for amendment, it is the Forum’s position that any such amendments have to be reasonable, necessary and advance respect for rule of law and the founding values as captured in section 3 of the Constitution. Amending the Constitution for partisan and self-propelling political ends is a history whose undemocratic dividends Zimbabweans know all too well.
After 90 days from gazetting, the Bill will be eligible for introduction in Parliament. In terms of section 328(4) of the Constitution, immediately after the Speaker has given notice of a Constitutional Bill in the Gazette, Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so. Citizens are duty-bound to take a firm stand against unprincipled constitutional mutilation and democratic retrogression. The Forum has no doubt that citizens will be emphatic in registering their displeasure over the amendments, and will defend the Constitution against amendments from which they derive no gain. In the same vein, Members of Parliament, who swore to uphold the Constitution and its values on assumption of duty, are duty-bound to work for democratic consolidation.
To that end, the Forum calls upon:
All responsible and people-centred Parliamentarians to take a stand against the Bill. The Constitution is not only the supreme law of the land but an embodiment of the aspirations of the people and an expression of the social contract.
The government of Zimbabwe to withdraw the Bill and refocus its energies on popularizing the Constitution and meeting its obligations to fully implement it, including substantive alignment of the legislation that is still at odds with the supreme law.