|Chinamasa’s Statements Signal Another Electoral CharadeAlex T. Magaisa
Zimbabwe’s Justice Minister, Patrick Chinamasa last week declared in an interview with the BBC’s Andrew Harding that MDC-T leader and current Prime Minister Morgan Tsvangirai is “asking for trouble” if he wins the Presidential election scheduled for next year.
When asked whether ZANU PF was prepared to accept a Tsvangirai victory Chinamasa responded: “He [Tsvangirai] cannot win”. And later, he is quoted as saying that “I know he [Tsvangirai] is the front of (sic) the countries that impose sanctions. And if those countries impose for him to win, that result will not be acceptable. We will not accept it. We will just not accept it. Isn’t that clear?”
This comes at a time when President Mugabe is declaring that the country is ready to hold free and fair elections and that those who do not want to contest will not be forced to do so. The statements attributed to Chinamasa are certainly out of sync with this message but confirm what has long been feared about elections in Zimbabwe: that in ZANU PF’s world-view, the only election that is acceptable is an election that delivers a positive result for itself. Anything else would be unacceptable.
Chinamasa is the Minister responsible for Justice, Legal and Parliamentary affairs in Zimbabwe and that portfolio gives him the role of administering the Electoral Act, among other laws that deal with elections. As Justice Minister he will have a role in the next electoral processes, including the accreditation of election observers. Yet already, long before the election dates have been declared, Chinamasa is not only defining the goalposts, but declaring that one of the prospective contestants cannot score or let alone win the contest.
What Chinamasa has said is, of course nothing new. In the past, military commanders have issued statements to the same effect, indicating clear hostility to the man and his leadership aspirations. There is a long list of such threats of subverting the people’s will and Chinamasa’s is just the latest in the catalogue. On this occasion, Chinamasa also invoked the threat of ZANU PF’s military might:
“And this is where the military comes in …” he said suggesting that the military step in to prevent a Morgan Tsvangirai victory and subvert the will of the people and therefore, the Constitution.
So in Chinamasa’s opinion, the people of Zimbabwe are so immature that they are unable to make their own political decisions and instead they have to rely on the wisdom of ZANU PF and its allies in the military. Should they vote for Tsvangirai, that decision will be deemed incorrect and will be subverted by ZANU PF, the military and war veterans.
This then begs the question regarding the hullaballoo over the elections; of why ZANU PF is so intent on having an election whose result is already pre-determined. Why are they so keen on going ahead with an election when they are not prepared to accept the results of that contest, should the result not be in their favour? Why not simply come out in the open and declare that Tsvangirai and the MDC-T are prohibited from contesting the election? Why go through the charade of an election when an unfavourable result will not be accepted?
The fact is these are the types of reckless stunts that do Zimbabwe no favours at all. Even those who may have been prepared to take ZANU PF more seriously in recent years surely have to despair when a senior official utters such remarks which essentially rubbish the entire election process which they would otherwise wish to present as credible and legitimate to the rest of the world.
Such statements also debunk the myth that ZANU PF banks on its policies to win elections; the one that has gained currency in recent years that in indigenisation and land reform ZANU PF has cogent policies as points around which to rally support to beat rivals in an election. Chinamasa’s statements and threats suggest that the party does not have confidence in a policy-based approach and instead can and will only rely on the power that it draws from the security structures.
In this regard, Chinamasa’s statements only serve to confirm what has long been known: that ZANU PF’s main source of power lies in the national security structure. The other traditional structures of power, namely finance, production and knowledge play their part but none more so than the security structure.
However, coming as they have done well in advance of the elections, by the law of unintended consequences, Chinamasa’s statements are in a strange sort of way quite welcome. They are welcome because they demonstrate the reality of attitudes and positions on the Zimbabwean political landscape: that nothing has changed to make the next election free and fair. People who have doubted the sincerity of the tolerance and peaceful tune that President Mugabe has been singing in recent months will feel vindicated by Chinamasa’s declarations.
President Mugabe’s backers might say Chinamasa was not representing the President or his party position or indeed the military. Well, if that is the case, the one way to prove it would be correct the representations that have been given so publicly on the world stage by Chinamasa or to publicly censure him for his remarks. After all, they represent a threat to disregard and disrespect the Constitution which is the supreme law of the land. As Justice Minister, a lawyer and member of the Law Society of Zimbabwe, Chinamasa knows that only too well and both his oaths as a minister and as a lawyer oblige him to respect and uphold the laws of the land.
Chinamasa says Tsvangirai and the MDC-T seek to reverse the land reform programme, which is a gross misrepresentation. As one of ZANU PF’s negotiators in the constitutional reform process, he knows that the agreed clauses on agricultural land do not such thing. This is why even in ZANU PF’s own set of amendments, the Copac draft’s clauses on agricultural land have not been seriously amended, reflecting the accommodation that has been reached between the parties. The reason for continuously raising the spectre of the MDC-T reversing the land reform programme is simply to perpetuate a tired line that the MDC-T is anti-land reform.
Coincidentally, ZANU PF removed all provisions in Chapter 16 of the Copac draft Constitution relating to the establishment of the Land Commission whose main functions include carrying out a land audit and ensuring adherence to the “one person-one farm” principle. The effect of this would be to ensure transparency and prevent multiple farm ownership. Only those who are multiple farm owners can be afraid of the existence of a body like the Land Commission. Far from reversing the land reform process, the agreed aim is to regularise the process, to ensure security of tenure and to set out a basis for productive agriculture.
More importantly, however, the statements are welcome in that they remind SADC as the facilitator and guarantor of the GPA, the AU as the other guarantor, the United Nations and the rest of the world regarding the challenge that continues to encumber Zimbabwe. Far from signalling any confidence in the prospect of a free and fair election, Chinamasa’s statements signal a repeat of the 2008 charade. For a man of his stature, the statements were remarkable for their reckless and plain disregard for the law and the will of the people.
As the old saying goes, however long it stays in the river, a log will never transform into a crocodile.
Note: Chinamasa lost to the MDC-T’s John Nyamande in the 2008 parliamentary elections. He was later appointed to Parliament by President Mugabe as a Senator.
Editors: If you are going to use this article, kindly acknowledge that it was first published on this blog.
Talking Baboons, Presidential Insults and More Presidential Candidates – A week in Zimbabwean Politics12 Oct
Talking Baboons, Presidential Insults and More Presidential Candidates – A week in Zimbabwean Politics
Alex T Magaisa
Being a Friday, we take a lighter look at events on the Zimbabwean political landscape …
A “Delegation of Baboons”
The week started with a fascinating story carried by the state weekly, The Sunday Mail of a meeting between a spirit medium, who bears the name Sekuru Katombo Kanyai and a “delegation of baboons”. The brave medium also had a meeting with a pride of lions, we are told. Weeks before, the same Sekuru Katombo Kanyai had been “visited” by a pangolin. And then a Fish Eagle, apparently a mysterious bird, had landed at Sekuru Katombo Kanyai’s homestead. And Sekuru Katombo Kanyai had also talked to a snake.
Clearly, Sekuru Katombo Kanyai is highly favoured and must be a man of great powers – his ability to talk to these wild creatures is unparalleled. The last time we heard animals talking was in fairy tales or in Hollywood movies. But no; right there in Zimbabwe is a man who even managed to have a “tete-a-tete” with a delegation of baboons, according to The Sunday Mail (The last time we checked the dictionary a “tete-a-tete” was a private conversation between two persons – clearly the Sunday Mail has a different definition).
Mbuya Nehanda, the revered spirit medium credited with inspiring the rebellion against the settlers in the 1890s and later sentenced to death and an enduring symbol of resistance and nationalism, was also brought into the frame – Sekuru Katombo Kanyepi’s homestead is her former home, we were told.
But if you were wondering what the alleged “tete-a-tete” between Sekuru Katombo Kanyai and a “delegation of baboons” and his meetings with lions or conversations with a snake or indeed the supposedly rare landing of the Fish Eagle was leading to, these are apparently messages “from the heavens”. You only need to read the last paragraph of Mr Mwase’s story to get the point of all this. Chief Chiweshe is quoted as having declared: “I will be approaching the relevant authorities to deliver this message . . . tikasangwara, nyika inoyenda. (If we are not careful, we will lose this country.)”, reports The Sunday Mail. (“We fought the war and attained independence, but there is a danger that the enemy will reverse the gains we made, so it’s for the good of every Zimbabwean to take heed of what the ancestors are saying.”)
So there we have it – the ancestors have sent a message through the “delegation” of baboons, a snake, a pride of lions, a pangolin and a fish eagle. It’s bad journalism, as one colleague put it, that the reporter failed to get a statement from the baboons. We agree. And we look forward to a follow up story, just in case the reported has been able to get a statement from the baboons.
Diesel from Rocks
But the story reminded us of Rotina Mavhunga, the spirit medium of Chinhoyi who claimed to have discovered diesel from rocks. We had a delegation, not of baboons, but of ministers – many of them quite learned, grinning from ear to ear, having removed their shoes as a sign of respect in the presence of the spirits, sitting there seemingly in awe of Rotina Mavhnga’s powers.
But those were desperate times and we might understand the desperation that drove grown men to such levels of gullibility. The country was facing severe fuel shortages. It was tough and, however stupid, news of miraculous diesel from rocks must have been refreshing, let alone welcome. Were these not the spirits of the land conspiring to defend the country against the machinations of the West? Were they not only showing a crucial lifeline but had decided in their wisdom to actually process the crude oil into diesel? It was all nonsense, of course. When the façade fell, as it was destined to, there was much embarrassment – enough to get Mbuya Rotina Mavhunga into jail but not enough to get the gullible ministers relieved of their duties.
We understand Chief Chiweshe will be delivering the message to the “relevant authorities”. We wish him well. Now we don’t know if Sekuru Katombo Kanyepi will arrange for a delegation of ministers to have a “tete-a-tete” with the “delegation of baboons” let alone with a pride of lions and a snake. If they do, we hope they take a video camera for that rare spectacle. We might well have a rare species of baboons, snakes and lions in our backyard that could draw millions of tourists …
Presidential Insults …
As the week rolled on, we heard news of Energy Minister Elton Mangoma being arrested for insulting President Mugabe. Section 33 of the Criminal Law (Codification) Act states that it is an offence to insult or undermine the authority of the President. According to the Zimbabwe Lawyers for Human Rights, which has represented victims of this provision, there have been up to 45 such cases in recent years. We are told the allegation is that Mangoma said at a meeting in Bindura, “Chifa Mugabe Chifa; Chibva Mugabe Chibva!” (Die Mugabe Die; Go Mugabe Go!”
We also read that Swiss tourist, Thomas Fischer was convicted by a court in September when he made reference to President Mugabe in an argument with border officials in Kariba. Apparently, following a delay at the border, Fischer had said Mugabe “knew how to screw people, especially foreigners.” He was arrested, convicted and fined $200.
We also recall that a Mutare fellow was arrested during Mugabe’s birthday celebrations in February when during a bar argument he is alleged to have questioned whether Mugabe still had the strength to blow up all balloons at his 88th birthday. Mugabe turned 88 in February and balloons had been blown as part of the celebrations.
We also read recently that Jeritha Nkomo, a 36-year-old Nyamandhlovu woman was arrested for insulting a local ZANU PF official using President Robert Mugabe’s name. Apparently, Ms Nkomo is alleged to shouted at the ZANU PF gentleman insulting him in the local Ndebele language and in doing so, made reference to his party leader Mugabe. The ZANU PF official went straight to the police to report the offence – saying it was an insult against the President.
We also remember that sometime in 2011, the MDC-T spokesperson, Douglas Mwonzora was charged with insulting the President. He was already in police custody at the time and while at the magistrates courts for a remand hearing Mr Mwonzora was alleged to have looked at a portrait of President Mugabe (every public building must have a portrait of the President) and addressed it saying “Makadii Baba? Irisei muviri? Riri sei ziso?” (“How are you father? How is your health and how is your eye?”] At the time the media was awash with stories of President Mugabe being unwell and having travelled to the Far East for an eye operation. Mwonzora said that he was in fact asking after the health of a fellow elderly prisoner whose health was failing and had also lost his spectacles during an incident of political violence.
So Mangoma joins a growing list of alleged offenders. Now, before we get ahead of ourselves, Zimbabwe is not the only country with such odious laws and in due course we shall favour you with a complete list of countries that are similarly minded, even though they do not enforce them with same levels of keenness and vigour. But the common denominator in all such countries is that the charges of insulting or undermining the President usually rise exponentially towards or during election times, especially where the President is also a candidate in those elections – which in fact makes this law a key part of the electoral landscape.
The question that one has to grapple with is how to separate the person in his capacity as President and in his other capacity as a party leader and election contestant. Certainly he has the freedom to insult, denigrate and verbally assault his fellow candidates but as soon as the others try to do the same, they could well find themselves facing arrest for insulting the President! And they say the electoral ground is even and level … Our observation is that numerous arrests, which always receive negative coverage across the world and are therefore embarrassing, have actually done more to ridicule, insult and undermine the authority of the office of the President. They feed more into the stereotype of a repressive dictatorial regime that prohibits criticism. So could it well be that those instigating these arrests actually have a bone to chew with the President?
And oh, yes we forgot to mention that Mr Mangoma belongs to the MDC-T led by Prime Minister Morgan Tsvangirai – Mugabe’s main challenger in the Presidential election.
Baard throws his hat into the Ring
And speaking of Presidential elections, the week is ending on a resoundingly hilarious note. Moses Matenga, at NewsDay reports that a man called Mark Baard has thrown his hat into the ring that is the Presidential election in 2013.
The 53-year old Baard has told Matenga that he is responding to a “prophecy”. His party is called the Zimbabwe Republican Front. “We are going full swing …” he is quoted as having stated. “It’s a vision God has given me. God calls it a revival” he adds, stating that the earthly messenger of this prophecy is Cindy Jacobs, who is based in America. We suspect the retort to that one will be very easy – “Zimbabwe will never be a colony again”. Not even a heavenly disguise will work! Mr Baard might be best advised to recruit an “indigenous” prophet to “indigenise” the prophecy.
“God has prepared me for this” says Mr Baard. He better be, because a Zimbabwean election is no child’s play; one will need all the divine protection one can get.
“The party has been in action …”, Mr Baard adds, although, we have to say, this is the first time we are hearing of the Zimbabwe Republican Front. Readers may wish to favour us with details of any “action” of the ZRF they have witnessed in recent years.
Zimbabwe has its fair share of a mixed variety candidates in Presidential elections – as do most countries. They come, to use a tired cliché, in all shapes and sizes – and indeed backgrounds. We do not forget Mr Langton Towungana who stepped onto the starting line in the 2008 elections. According the NewsDay, there were 14 503 Zimbabweans who shared his vision. But our favourite remains Egypt Dzinemunhenzva – the Wedza-based gentleman who runs a grinding mill at the township. He spares no election. He loses every time but he always comes back for the next. Ngaapihwe sando dzake, as they say in Zimbabwe.
So what a week it has been – starting with a spirit medium receiving a message from the heavens through a delegation of baboons, a fish eagle, a snake, a pride of lions and a pangolin, to a man receiving a divine prophecy to lead, through an American based prophet. And in between, a cabinet minister arrested and later released on charges of insulting President Mugabe. There is never a dull moment on the Zimbabwean political landscape …
ERODING THE PRINCIPLE OF LIMITED TERMS OF OFFICE IN THE DRAFT CONSTITUTION
A T Magaisa
Lord Acton’s famous words, “Power corrupts and absolute power corrupts absolutely” represent a timeless reminder of the risks that attach to any station that confers power. It is for this reason that good constitutions generally tend to include provisions that place limits on power. These constraints, also referred to as checks and balances, come in various forms. In some cases, an authority’s power to act is qualified by the requirement to conduct consultations with another person or authority prior to taking action. In other cases, the constitution requires an authority’s actions to be approved by another person or authority before taking effect.
We have already observed in this blog how the President’s power to make appointments is subjected to checks and balances in the Copac draft. We have also observed how by comparison, the ZANU PF amendments erode these checks and balances, leaving the office of the President with too much unfettered discretion, thereby increasing the risk of the corruptive effect of power.
Another mechanism of reducing the corruptive effect of power is the principle of maximum terms limits. This principle applies to offices that confer political power but it can also be extended to other offices that confer other forms of power. The risk that is targeted by the principle of limitation of terms is that when a person stays in a single office for too long, the person becomes entrenched in that office and over time the individual begins to feel that he or she is bigger than the office. Instead of the rules of office restraining the individual, he or she begins to control the office rules to suit his own purposes. In that process, an indeterminate period in one office corrupts the individual and the institution. It is in attempts to reduce the corruptive effects of lengthy stays in office that terms of office and maximum term limits were devised.
The limitation on terms of office can be absolute or conditional. In the absolute cases, a person is prohibited from holding office beyond a certain number of terms and years, even if there is an interruption in the terms or years of service. Therefore, if a Constitution states, as does the Copac draft, that a person is disqualified for election as President if he or she has already held office as President under the Constitution for two terms, whether continuous or not, it means this is an absolute prohibition on holding office as President for two terms. It does not matter that there is a break in between the two terms of office.
In the more flexible cases, the prohibition would only be that a person cannot hold a particular office for more than two consecutive terms. If this is the case, it means after two consecutive terms, the person must take a break but he or she can still contest for the same office after that break. This type of limitation is weak and prone to manipulation.
The limitation in the Copac Draft is of the absolute type. It even goes further and states that for the purpose of the provision on limitations three or more years’ service is deemed to be a full term. This means if a person serves as President for one term of 5 years and serves up to 3 years of his second term, he will be deemed to have served two full terms.
However, the principle against retrospective application of the law means that these provisions can only apply to terms served under the new Constitution, a point that may disappoint those who would have hoped for the law to apply to terms that have already been served even under the existing Constitution.
Of interest is the attempts that were made in the Copac Draft to apply the principle of maximum term limits to many other offices that confer power under the Constitution or the laws of Zimbabwe. The rationale for maximum term limits in these offices is similar to the rationale posited above – namely as checks and balances on power; as a mechanism of preventing entrenchment in power and minimising the corruptive effect of power. By comparison, however, ZANU PF’s proposed changes are designed to erode the principle of maximum term limits in almost all offices
|ITEM||OFFICE||COPAC DRAFT||ZANU PF PROPOSED CHANGES|
Clerk of Parliament
|Clause 6.39(2) provides that the maximum term limit is 2 terms of 6 years each.||ZANU PF has this provision on term limits meaning the Clerk is appointed for an unlimited period of time.|
Heads of state companies and other statutory bodies
|Clause 9.4 provides for legislation to ensure that heads of statutory bodies, government-controlled entities and other commercial entities owned or wholly controlled by the State can serve up to a maximum of 2 terms of 5 years each. The first term would be renewable only on the basis of competence, performance and delivery.This is an important clause which makes corporate and economic governance of state entities a constitutional issue. It is a reaction to the experience of poorly run and economically debilitating state entities and inefficient state bodies which despite the failings are often in the hands of the same individuals for lengthy periods of time.||ZANU PF has deleted this provision meaning the same situation as currently prevailing continues.|
|3||Permanent Secretaries||Clause 10.7 states that the term of office of a Permanent Secretary is five years renewable only once subject to competence, performance and delivery. This would mean that these senior civil servants would be subject to similar tests of performance and delivery standards as would normally be applied in the private sector. They are not appointed for an indeterminate period and they cannot take their positions for granted.||ZANU PF has removed this provision implying that the current situation prevails.|
Heads of Security Services – Defence Forces, Police, Correctional Services, Intelligence Services
|A similar clause applying to each of these offices in the security services sector allows a person to hold office for a maximum of 2 terms of 5 years each.||ZANU PF has changed this so that after the two terms, there can be annual renewals for each appointment.This effectively means that there are no limited terms for these offices.The annual renewal mechanism is an even more dangerous provision because it makes the office holder eternally beholden to the person who has the power to make annual renewals, in this case the President. A person in this position knows every year that there is a dagger hanging above his head, in the form of a non-renewal of his contract. In order to avoid the dagger falling upon his head, he has to do the President’s bidding. For this reason, the officer is permanently aligned to the President, giving the latter unlimited power and control over the security services. The officer’s interests are aligned to the President’s interests – each depends on the other for continues retention of office. This way, the provision for annual renewals of contracts creates a mutually beneficial relationship between the heads of the security services and the President, in which the latter is however in ultimate control.
Defence Forces Commanders – Cross Movement
|Clause 11.11 (4) provides that while a person who has served as Commander of a service of the Defence Forces (e.g. Zimbabwe National Army) may be appointed as Commander of the Zimbabwe Defence Forces by way of promotion, a person who has served as Commander of the Zimbabwe Defence Forces may not be appointed as Commander of a service of the Defence Forces (e.g. ZNA) or to the command of any other security service (e.g. the CIO). Similar clauses apply to the heads of police, intelligence and correctional services.While it is unlikely that a Commander of the ZDF can ever be appointment to command a service of the defence forces as that would be accepting a lower rank, it is nevertheless an important provision which prevents potential circumvention of the rule prohibiting serving more than 2 terms of office.||This clause has been deleted by ZANU PF.|
|6||Prosecutor-General||Clause 13.6 (5) provides that the term of office of the Prosecutor-General is a period of 6 years renewable only once. In a person can serve as the PG for a maximum of 2 terms.||ZANU PF has removed provisions for the office of the PG and replaced them with provisions for the office of the Attorney General, therefore continuing with the present system. The provision for limited terms of office has also been removed.|
|7||President and Deputy President of every Council of Chiefs||Clause 15.6 (6) provides that he President and Deputy President of everyCouncil of Chiefs is elected for a term of five years and is eligible for re-election for one further such term.||ZANU PF has changed this provision so that the limited terms of office do not apply to the leaders of every council of chiefs but applies only to the leadership of National Council of Chiefs.This means at a provincial level, if a Provincial Council of Chiefs exists, the President and Deputy can serve in those positions for life.|
We have observed that the rationale of term limits is to prevent the problem of entrenchment and the resulting corruptive effect of power. A good man or woman who stays in the same position of power for too long may eventually become corrupted. Familiarity, as they say breeds contemts and I this case familiarity in a position of power breeds contempt for the office. The individual becomes synonymous with the office or power and in the worst cases, the individual becomes bigger than the office. Instead of the individual fitting into the confines of the office, the office is panel-beaten to fit into the construction of the individual. Such a scenario does not sit bode well for good governance.
There are those who would argue that longevity in office brings experience. They would argue further that terms of office cause losses in terms of this accumulated experience. Yet such arguments underestimate the capacity of new individuals; the importance of change in management. Terms of office have the further benefit of boosting morale among the juniors, who are able to serve with the prospect of promotion to the highest office in sight. In some cases, especially in the statutory bodies, the same individuals have been at the helm of these bodies for almost 30 years. There is no prospect whatsoever of the subordinates ever fulfilling their professional ambitions unless the person at the top dies, resigns or is fired. Resignation is unheard of and they are hardly fired. Therefore state bodies are saddled with the same dead wood for years and because indeterminate terms of office are assured, there is no incentive to perform.
It is welcome that the long overdue term limitations for the President are agreed upon but it is a shame that ZANU PF is unwilling to extend the same principle to other key public offices. A wider application of this principle would do more to enhance the necessary checks and balances and whatever the disadvantages of maximum terms, they are far outweighed by the merits.
TORTURE, INHUMAN AND DEGRADING TREATMENT: THE SUPREME COURT OF ZIMBABWE’S JUDGMENT IN MUKOKO V THE ATTORNEY GENERAL5 Oct
TORTURE, INHUMAN AND DEGRADING TREATMENT: THE SUPREME COURT OF ZIMBABWE’S JUDGMENT IN MUKOKO V THE ATTORNEY GENERAL
Most readers may have a vague recollection of the notorious case in December 2008 when former newsreader and human rights activist Jestina Mukoko was abducted and held in communicado for a number of weeks. Eventually she was released but not before spending more time in police custody. She applied for a permanent stay of prosecution – in normal English, an application to stop the prosecution forever. She argued that her constitutional rights had been violated: she had been kidnapped from her home; tortured and subjected to inhuman and degrading treatment at the hands of the State. The Supreme Court agreed and stopped the prosecution in September 2009. The court said it would give its reasons in due course. The long awaited reasons arrived three years later, in September 2012.
At some point we shall do a critique of this important judgment but we think every Zimbabwean, indeed every person should at least have a chance to read the judgment in the Supreme Court’s own words. A legal judgment is not the easiest document to read. Indeed it can be too technical, there can be detours and the language may not be altogether amiable to the casual reader. We have assisted by giving you the relevant parts – the narratives and explanations that we think make for easier reading without losing the essence of the judgment.
The judgment itself runs into 40 pages and those wishing to get a copy can contact our ever-reliable friends at Veritas (email: email@example.com) So here we go, in the words of the Deputy Chief Justice Malaba, who delivered the judgment with which all other judges concurred.
JESTINA MUKOKO v THE ATTORNEY-GENERAL
SUPREME COURT OF ZIMBABWE
Malaba DCJ …
This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant [Jestina Mukoko] was subjected by State security agents prior to being brought to Court on a criminal charge.
She was charged with the offence of contravening s 24(a) of the Criminal Law (Codification and Reform) Act [Cap. 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe”.
The applicant alleged in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).
It was argued that the manner in which she was apprehended by State security agents and treated in detention prior to being brought to court on the charge constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under s 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by s 15(1) of the Constitution.
The argument was that the uncontested behaviour by State security agents in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody rendered the institution of the criminal prosecution an abuse of legal process.
The second ground was that the decisions made by the public prosecutor to charge the applicant with the criminal offence and to bring the prosecution proceedings were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment. It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.
On 28 September 2009, after reading documents filed of record and hearing argument by counsel for the applicant and for the respondent, the Court made the following order:
The Court unanimously concludes that the State through its agents violated the applicant’s constitutional rights protected under ss 13(1), 15(1) and 18(1) of the Constitution of Zimbabwe to the extent entitling the applicant to a permanent stay of criminal prosecution associated with the above violations.
Accordingly it is ordered that the criminal prosecution against the applicant arising from the facts set out in proceedings in the Magistrates Court Harare in the case of the State v Manuel Chinanzvavana & Eight ors case number 8801-5/08 is stayed permanently.
She [the applicant] was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table. She did as ordered. Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.
One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position. She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position. She remained in that position for one hour.
The interrogators told her to write about the trip she had made to Botswana. She did as told. The next day she was told that there were some things the interrogators wanted deleted from the statement. She removed from the statement what the interrogators did not want and added what they said was to be added to the statement. She said she wrote the statement in the manner her interrogators wanted before signing it …
Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.
The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate.
Section 15(1) of the Constitution enshrines one of the most fundamental values in a democratic society. Chahal v United Kingdom  23 EHRR 413 para 79. It is an absolute prohibition. It is because of the importance of the values it protects that the rules by which the prohibition imposes the obligations on the State are peremptory in effect. The most conspicuous consequence of this quality is that the principle at issue cannot be derogated from by the State even in a State of public emergency.
They are also designed to ensure that the prohibition produces a deterrent effect in that it signals in advance to all public officials and private individuals that it is an absolute value from which nobody must derogate. The fact that torture, inhuman and degrading treatment is prohibited by a peremptory provision serves to render null and void any act authorising such conduct.
The prohibition protects the dignity and physical integrity of every person regardless of his or her conduct. No exceptional circumstance such as the seriousness of the crime the person is suspected of having committed, or the danger he or she is believed to pose to national security can justify infliction of torture, or inhuman or degrading treatment. There cannot be a value in our society over which there is so clear a consensus as the prohibition of torture inhuman and degrading treatment of a person in the custody of a public official. That such a treatment should never form part of the techniques of investigation of crimes employed by law enforcement agents, is a restatement of the principle that the law which it is their duty to enforce, requires that only fair and humane treatment ought to be applied to a person under criminal investigation.
Applying the principles of the law on what constitutes a contravention of s 15(1) of the Constitution to the facts, the Court finds a violation by the State, through its agents, of the applicant’s fundamental right not to be subjected to torture, or to inhuman or degrading treatment:
The repeated beatings on the soles of the applicant’s feet with a piece of a hosepipe and a metal object using severe force on each of the two occasions she was under interrogation, constitute torture. Repeated beating of the soles of feet with a blunt instrument is a serious form of torture called “falanga”.
Forcing the applicant to kneel for a long time on mounds of gravel whilst being interrogated, falls within the meaning of torture. The treatment to which she was subjected was premeditated. The severe pain and suffering she was forced to endure was intentionally inflicted.
The prolonged periods of solitary confinement incommunicado on the occasions she was not being interrogated constitutes inhuman and degrading treatment. (It is important to note, however, that solitary confinement is not to be deemed to be contrary to the prohibition under s 15(1) of the Constitution. It must be in conjunction with other conditions, for example, prolongation and imposition on a person who has not yet been convicted of an offence. The severity of the specific measure, its duration, the objectives pursued by it, the cumulative effect of any further conditions imposed as well as the effects on the individual’s physical and mental well-being, are all factors which have to be taken into account in the assessment of the question whether a specific instance of solitary confinement is in violation of s 15(1) of the Constitution.
It was inhuman treatment to keep the applicant blindfolded each time she was out of solitary confinement and not being interrogated. The treatment was intentionally applied and caused the applicant mental suffering. She was also subjected to inhuman and degrading treatment when she was blindfolded and driven at night to an undisclosed destination under threat of unspecified action.
Any recourse to physical force against a person in the custody of a public official which is not rendered strictly necessary by his or her conduct diminishes his or her dignity and implicates a violation of the prohibition.
The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.
The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.
According to the applicant the use by the public prosecutor of information obtained from her by infliction of the treatment prohibited by s 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman and degrading treatment to which she was subjected.
Section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use in any legal proceedings, information or evidence obtained from an accused person or defendant or any third party by torture, or inhuman or degrading treatment.
A proper interpretation of s 15(1) of the Constitution which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person or any third party by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by s 15(1) of the Constitution.
The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill-treatment. If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence or any third party by torture, inhuman or degrading treatment when making prosecutorial decisions. If the duty fails at this stage the law imposes the duty on judicial officers. Eventually it lies with the Court to intervene through the exercise of its original jurisdiction to enforce or secure the enforcement of fundamental rights.
.. the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her and a third party by torture, inhuman and degrading treatment. There was an inextricable link between the ill-treatment and the criminal prosecution. No evidence was placed before the Court by the respondent to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.
… the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with and prosecute her for the criminal offence, is that there was a breach of ss 15(1) and 13(1) of the Constitution.
That Jestina Mukoko came out of all this and continues to champion human rights not anywhere else but in Zimbabwe is an incredible feat and a mark of bravery. Respect.
LEGAL & POLITICAL IMPLICATIONS OF THE HIGH COURT DECISION ON BY-ELECTIONS
A T Magaisa
- Readers may recall that we have been closely following the legal wrangle over the holding of by-elections in Zimbabwe. For two previous articles on this issue, please follow this link: http://newzimbabweconstitution.wordpress.com/2012/08/
- The brief summary is that three MPs were expelled from the MDC that is led by Professor Welshman Ncube and subsequently lost their parliamentary seats. The vacant seats had to be filled through by-elections, the dates of which must be set by the President in accordance with section 39 of the Electoral Act. President Mugabe did not set dates for the by-elections. The aggrieved MPs sued the President seeking an order compelling him to set dates for the by-elections.
- The High Court in 2011 rightly found in favour of the MPs and ordered the President to set dates for the by-elections. President Mugabe appealed to the Supreme Court which in July 2012 dismissed the appeal, correctly confirming the High Court order. The Supreme Court gave him an August 31 deadline to set dates for the by-elections. Meanwhile, during the period since the 2008 election, vacancies had arisen in other constituencies due largely to deaths of MPs and Senators. The decision in the case of the 3 constituencies therefore had implications for almost 40 vacant parliamentary seats.
- Just before the August 31 deadline, President Mugabe made an urgent application at the High Court seeking an extension of the Supreme Court deadline. The High Court extended the deadline by up to a month. Towards the deadline, the President applied again for a further extension of the deadline, this time to the end of March 2013. Among reasons given for the extension was that the government has no money to organise the by-elections. Predictably, the High Court allowed the extension of the deadline.
- Readers may recall that when the Supreme Court made its order, we said it was a legally correct but politically inconvenient decision:
5.1 It was inconvenient not just because of the alleged lack of resources but because with a General Election imminent within less than 12 months, the by-elections would be of no more than academic significance.
5.2 This would also mean two hotly contested elections in the same constituencies within a space of 12 months which does not make economic sense. The inconvenience also arose from the fact that by-elections would raise political temperatures, as election periods usually do, at a time when a coming together is required if the constitution-making process is to succeed.
5.3 Given that with almost 40 by-elections spread across the country, this would be a mini-general election which would give an overview of the parties’ electoral fortunes going into the main general elections next year. The stakes would be high with intense contestation which would potentially upset the tenuous political balance currently prevailing.
- We weren’t convinced that there is an appetite for elections among the politicians across the board. There is therefore no surprise at the decision made by Judge Chiweshe, extending the deadline. What he has simply done is to transform a politically inconvenient order into a politically convenient one, never mind its legal and procedural weaknesses. As they say, there are cases where it’s all about the politics and little to do with the law and this was one of them.
- Having said that it seems that there has been a general misreading of the High Court decision and its implications on the timing of next year’s general elections. From what we have read in the papers, the judgment states that “The period within which to comply with the order granted in case Number SC267/11 is hereby further extended to March 31 2013.” A lot of media reports seem to have come to the conclusion that this means the General Elections will definitely be held by the end of March 2013.
7.1 However, assuming that the quoted words are a correct representation of the court order, it does not follow that the General Elections will be held before the end of March 2013. We must recall that the Supreme Court order was not that by-elections must be held before the end of August 2012 but that the President complies with the order for setting dates for the by-elections by that date. Likewise, the extended deadline was not that the by-elections must be held by the end of September 2012. Rather, these were deadlines for the President to set dates for the by-elections to be held. Normally, under section 39 of the Electoral Act, the President must set the dates within 14 days of being notified that a vacancy has arisen. In this case, he was required to set dates by the stated deadlines. This did not mean elections had to be held by the deadline.
7.2 Similarly, the recent extension of the deadline for compliance by Judge Chiweshe to the end of March 2013 does not necessarily mean that the by-elections must be held by that date. It simply means President Mugabe has up to the end of March 2013 to set the dates for the by-elections and in effect the general elections, since the intention is to subsume the by-elections under the general elections. If he has up to March 2013 to comply with the order, the implication is that the elections could well be after March 2013.
7.3 It is important in this regard to note that the process of setting the date for nominations and the polling date in accordance with section 38 of the Electoral Act can take up to 10 weeks. This is because using the maximum possible periods allowed under the Electoral Act, the nomination date can be up to 3 weeks from the date of proclamation fixing the dates of elections per section 58 of the Constitution. Further, the actual date of the election can be any day up to 50 days from the nomination date. Therefore, the general elections could well be in early June 2013.
7.4 And before we get ahead of ourselves, we must note that the President could always make a further application for extension if things haven’t gone according to plan by the extended deadline! Therefore, things are far from as clear as they seem.
- Consultations in Setting Election Dates?
8.1 A point of interest, though is the report in today’s Herald newspaper entitled “3 Principals Agreed to Poll Deal” (http://www.herald.co.zw/index.php?option=com_content&view=article&id=54049:3-principals-agreed-to-poll-deal&catid=37:top-stories&Itemid=130) suggesting that President Mugabe consulted his coalition partners, including Prime Minister Morgan Tsvangirai on the issue of extending the deadline. Assuming it is correct that Mugabe did consult and there was a consensus, the significant point here is that there was cross-party consultation on the issue of setting election dates.
8.2 The critical question that must be asked is whether this means President Mugabe will likewise consult his coalition partners on the setting of dates for the General Election and not claim that the space is exclusively his alone. Surely, if such consultation is good for the by-elections, it must be good for the General Elections, too. Otherwise, any inconsistency will be read as an attempt on this occasion to merely use the other principals to justify stretching the law for political convenience.
8.3 One hopes therefore, that when the time comes for the setting dates of the General Elections, the same spirit of consultation and pursuit of consensus will prevail.
CREATING AN AUTHORITARIAN EXECUTIVE AND A PUPPET PARLIAMENT – PART 3
A T Magaisa
- 1. Introduction
1.1 In the last two parts of this series, we assessed further changes to the Copac draft Constitution suggested by ZANU PF. We noted that these changes demonstrate a high concentration of powers in the office of the President and the executive while weakening Parliament and other institutions. We demonstrated that the checks and balances introduced by the Copac draft have been removed or weakened.
1.2 In this third part, we consider further provisions that have a similar effect. The same method is employed whereby the provisions of the Copac Draft are compared to the provisions suggested by ZANU PF. The net result is the diminution of checks and balances that would otherwise enhance the principle of constitutionalism and a more accountable government.
- 2. Independent Complaints Mechanism
2.1 The Copac Draft provides for the establishment of an institution known as the Independent Complaints Mechanism (ICM) to deal with public complaints regarding the misconduct of members of the security services. The ICM is designed to provide an independent, quick, efficient and professional resolution of public complaints against members of the security services without having to go through the judicial process. It would also have the power to remedy harm caused by such conduct.
2.2 The establishment of such an institution would go a long way to promote accountability through a quasi-self-regulatory service just as is the case with professional bodies for lawyers, accountants, doctors, etc. It would also ensure that problems are resolved quicker than they are when taken through the procedures of the courts of law. Further, it would also mean like the professions, the security services would have to raise their professional standards and keep a vigilant look at their members. It is a system that places responsibility for correcting wrongs right at the doorstep of the security services just as it does for bodies such as the Law Society of Zimbabwe, the Institute of Chartered Accountants of Zimbabwe, the Health Professions Council, etc. In a nutshell the purpose of the ICM is to promote a culture of accountability on the part of the security services.
2.3 However, ZANU PF has deleted this provision for the establishment of an ICM. There is no justifiable reason for its removal and no specific reason has been given for the deletion. It is one of those provisions that is completely missing from the ZANU PF draft although the fact that it has been deleted has not been highlighted. This is one attempt to promote institutions of accountability and resolution of disputes which has been deleted through the ZANU PF amendments.
- 3. Appointment of Judges
3.1 The judiciary is the third critical arm of the State which interprets the Constitution and the laws of the land. It also has the power to review the conduct of the executive and its institutions and in so doing provides critical checks and balances on the exercise of executive power. In order to execute its role more effectively and impartially, the judiciary must be independent. Its independence is dependant on a number of factors but one of the critical ones is the method of appointing judges. The process of appointing judges must not be left to one person but rather it must encapsulate adequate checks and balances.
3.2 The Copac draft seeks to do this by ensuring that while the President makes the ultimate appointments, the actual selection process is effectively done by the Judicial Services Commission (JSC). Under the Copac draft, the JSC makes public calls for the nomination of candidates for judicial office. The nominations can be made by the President or members of the public. The JSC conducts public interviews and provides 3 names of candidates to the President from which he or she must select an appointee.
3.3 As long as the JSC is sufficiently independent and professional, this open and transparent process can be expected to yield candidates of merit. The President has a choice but only among the 3 candidates submitted to him or her by the JSC. This means the President does not have unfettered discretion to appoint whoever he or she wants as a judge. This is a procedure that provides a good base for judicial independence.
3.4 However, ZANU PF has suggested a different model. Under their model, the President appoints a judge “after consultation” with the JSC. As we have already observed in Part 2 of this series, when the President is required to appoint “after consultation with” another authority, it means he or she has the option of ignoring that authority’s recommendations.
3.4.1 This means under the ZANU PF proposal, the President would have almost unfettered discretion to appoint whoever he or she wants as a judge. This model gives too much discretion and power to the President, enabling him or her to pack the judicial bench with his or her favoured judges consequently compromising judicial independence.
3.4.2 Under this model, the President is not obliged to appoint the candidate advised by the JSC. The only sanction is that if his chosen appointment is inconsistent with the JSC’s recommendations he or she is required to inform the Senate but this too is useless because there nothing stated as to what Senate can do in those circumstances.
3.4.3 It is also notable that under ZANU PF’s proposals, the public’s right to nominate candidates for judicial office has been deleted. Only the President can make nominations meaning he or she can nominate his or her favourites. This restriction is yet another attempt to carve out exclusive space for the President to shape the composition of the judiciary.
3.4.4 Further, it is also notable that under the ZANU PF proposals, the specific requirement for public interviews in the judicial selection process has been dropped completely. This openness and transparency that this would have encouraged will consequently be lost.
3.5 Overall, compared to the Copac procedure, the ZANU PF-proposed procedure carries the risk of creating a judiciary that is no more than a puppet of the Presidency.
- 4. Election of Parliamentary Officers
4.1 In a multi-party democratic Parliament, the election of the chief officers of Parliament, namely the Speaker and his or her Deputy and the Senate President and his or her Deputy, are critical processes. As with all elections, they must be free and fair and this is also dependent on the authority that is responsible for the conduct and supervision of the elections. Under the current Constitution, the authority responsible for the conduct and supervision of these elections is the Clerk of Parliament. Experience in recent elections has shown that having the Clerk in this role can be problematic.
4.2 The Copac draft proposes that the authority to conduct and supervise elections of the chief parliamentary officers must be the Chairperson of the Zimbabwe Electoral Commission or his or her nominee. This makes sense because the election of parliamentary officers is an integral part of the entire electoral process. It is therefore reasonable that the body that is responsible for all elections should exercise this role.
4.3 ZANU PF has however changed the Copac draft by reverting to the procedure used under the current Constitution. This means that under their model, the elections of the Speaker, Senate President and their deputies are conducted by the Clerk of Parliament. There is no reasonable justification for retaining a procedure that has been affected by controversy. There is no reason why the Chairperson of ZEC should not be entrusted with this role, given the overall mandate of ZEC in electoral processes.
4.4 In addition, the Copac Draft proposes that when these officers have been elected, they take their oaths before the Chief Justice or a judge of the Constitutional Court as opposed to doing so before the Clerk of Parliament as is the current law and practice. ZANU PF wants the Clerk of Parliament to retain this role and no justification has been provided for removing the Copac provision. These provisions give a misleading appearance of the rank of the Clerk of Parliament in the Parliamentary structures. The Clerk is a mere employee of Parliament and there is no reason why he or she should administer the oath for his employers. Respect for Parliament and its senior officers must be accorded by requiring the senior officers to tale their oaths before a member of the judiciary and not before an employee of Parliament.
- 5. Head of Parliament
5.1 The Copac draft makes is plain that the Speaker is the administrative head of Parliament, with the Senate President as his or her deputy. ZANU PF has changed the wording of this clause, preferring to highlight the role of the Clerk of Parliament. There is no reason for removing the provision that makes it clear that the Speaker is the head of Parliament.
5.2 The effect of ZANU PF’s changes is to dilute the authority of the Speaker as the administrative head of Parliament. This gives too much power to the Clerk, an employee, at the expense of the Speaker and the Senate President who are supposed to head the institution of Parliament. Note that ZANU PF has also deleted the Copac draft provisions limiting the Clerk’s terms of office to two terms of six years each, which means the Clerk is appointed for an unlimited period. The threshold for removing the Clerk has also been raised from the usual simple majority to two thirds majority vote of MPs which makes it almost impossible to remove a wayward Clerk. The simple point which no one seriously disputes is that the Clerk must operate under the direction of the Speaker whose role as head of Parliament must be clearly set out.
- 6. As we conclude this part, we observe yet again that the changes proposed by ZANU Pf have the effect of creating and strengthening space for the Presidency and the executive generally and weakening other institutions, such as Parliament and the Judiciary, which are otherwise supposed to provide important checks and balances.
CREATING AN AUTHORITARIAN PRESIDENT AND A PUPPET PARLIAMENT (Part 2)
A T Magaisa
- 1. Introduction
1.1 In the last article, we assessed provisions on the dissolution of Parliament, terms of office of heads of security services, the power to declare war and peace, political accountability of the security services and noted that in almost every case, ZANU PF’s proposed changes enhance the power of the Executive President while weakening Parliament. The checks and balances in the Copac draft are weakened and the proposals do not enhance the principle of constitutionalism.
1.2 This is the second part which considers the further provisions whose effect is the similar. We shall use the same method, comparing the Copac Draft and the ZANU PF amendments. This paper must therefore be read as a continuation of the first paper.
- 2. Elected or Appointed Vice Presidents
2.1 Under the Copac Draft, the two Vice Presidents (VPs) are elected as running mates of the Presidential candidate. The fact that they are elected gives them greater legitimacy if one of them has to succeed the President in the event of death, resignation or incapacitation. ZANU PF has however deleted all provisions providing for the election of the VPs. Instead, under the ZPF model, the two VPs will be directly appointed by the President as is currently the case. This is consistent with the approach where the President is given unfettered powers of appointment and as we shall see in the next article, the President also directly appoints the Provincial Governors (PGs), another departure from the model under the Copac draft which has stronger checks and balances that limit Presidential discretion.
2.2 Further, in the Copac Draft, VPs are required to attend Parliament and Parliamentary Committees to answer questions. In addition, Chapter 6 of the Copac Draft states that Parliamentary Standing Orders may provide for the questioning of VPs and PGs in Parliament. The object of these clauses is to ensure that VPs and PGs are held to account by Parliament. However, ZANU PF has changed these provisions, the effect of which is that VPs and PGs are no longer mandatorily required to comply with this obligation.
2.3 This reluctance to make VPs and PGs accountable to Parliament is probably a reflection of the refusal to hold the President accountable before Parliament since the VPs and PGs are direct Presidential appointees. The view is probably that making it an obligation for the VPs and PGs to attend Parliament and answer questions is tantamount to questioning the Presidency.
- 3. Composition of Senate (Presidential Power to Appoint Senators)
3.1 The ZANU PF changes also increase the power of the President over the composition of the Senate as the President can effectively appoint up to 30 senators and this is how this is achieved:
3.1.1 As we have noted, under the ZPF model all 10 Provincial Governors are directly appointed by the President – and each one of them gets a seat in the Senate. The 2 Vice Presidents appointed by the President and they also become non-constituency Senators. There are also 18 chiefs who legally owe their appointment to the President. This means under the ZPF model the President is given the power to appoint at least 30 Senators. Since there are 92 seats in the Senate, this means one person will have the power to appoint almost one third of all Senators – a patently undemocratic circumstance.
3.1.2 Under the Copac Draft, VPs are elected alongside the President so they are not Senators while the Chairpersons of the Metropolitan Councils – Harare and Bulawayo – are not Senators because they already hold Mayoral positions in their cities. The remaining 8 Provincial Governors are not direct Presidential appointees since they are, in effect, chosen by the political party with the highest political representation in each province.
3.1.3 First, ZANU PF’s changes unnecessarily increase the size of Parliament (from 88 to 92), quite apart from their undemocratic character in that they allow more power to the President to affect Parliamentary numbers. All this merely strengthens the hand of the Executive President, giving him or her significant power to affect the composition of Parliament. It also means that if the President’s party does not win the Senate elections, the President can always claw back significant space for his or her party through the appointment of 2 VPs, 10 Governors as Senators.
- 4. Approval of Senate in Constitutional Appointments
4.1 The Copac draft has a provisionwhich requires that where an appointment has to be approved by the Senate, the appointed person cannot start work until Senate approval has actually been given. The purpose of the clause is to ensure that the Senate actually exercises its power of approval and that it is not overridden by a powerful appointing authority – usually the President. If this clause does not exist, the appointing authority can always make an appointment and ignore Senate or allow the person to start work even before Senate has given approval. The collective effect of this would be to make Senate redundant.
4.2 ZANU PF hasremoved this clause rendering the Senate almost irrelevant in an appointment process where its approval is required. The President can make an appointment and ignore Senate notwithstanding that its approval would be required. If the intention is not to weaken Senate, there would have been no need to delete the clause making it obligatory that where an appointment requires Senate approval, the appointee cannot commence work without actually getting that approval.
- 5. Definition of “on the advice of” in Constitutional Appointments
5.1 The words “on the advice of” are usually employed where an authority or a person is required to make appointments working with another person or authority. Another set of words that is used as an alternative is “after consultation with” and sometimes “in consultation with” another person or authority. However, there have been problems with assigning the legal meaning of these words, leading to uncertainty and confusion over whether the person required to act “on the advice of” or “after consultation with” another person is legally obliged to follow the advice or recommendations of that other person.
5.2 The Copac draft sought to lay to rest any doubts over the meanings of these phrases. It states in clause 18.22 that when a person is required to “act on the advice” of another authority, he is legally obliged to follow that advice. This makes for a stronger set of checks and balances where you do not want the person to have too much discretion but rather, you want him or her to rely on the advice of another body.
5.3 It also states that when a person is required to act “in/after consultation with”, it means that he must listen to the recommendations but is not obliged to follow them. This gives him more discretion and he or she can even ignore the recommendations of the other person. The trouble with this phrase is that where you have an arrogant person who does not listen to advice it is not a good set of checks and balances. In an environment where you want the powerful person to act on the advice or recommendations of others, you have to go with “on the advice of” rather than “in/after consultation with”.
5.4 The Copac draft had provided definitions for both phrases for the avoidance of any doubt. However, ZANU PF has in its amendments removed from the part that defines the words “on the advice of” leaving only the definition of “in/after consultation with”. There is no reasonable justification for the removal of this definition which seeks to make things clear and certain. In fact the deletion betrays ZANU PF’s reluctance to use the words “on the advice of” which contain a higher threshold of adherence in preference for the weaker “in/after consultation with” which allows the person to ignore the recommendations. The latter leaves the appointing authority with weaker checks and balances and he or she can pretty much do as he or she wishes. It allows room for arbitrary appointments under the guise of “consultation” whereas the rejected “on the advice of” makes for stronger checks and balances.
- 6. Conclusion
6.1 We have observed in this article that the ZANU PF amendments have the following effect:
6.1.1 VPs and PGs are directly appointed by the President departing from the situation where VPs are directly elected and PGs represent a party with the highest political representation in each province. When persons are elected, they are more likely to be accountable to the electorate but when they are appointed, they become beholden to the appointing authority.
6.1.2 The removal of the mandatory requirement for VPs and PGs to attend Parliament and answer questions from parliamentarians takes away Parliament’s power to bring these offices to account.
6.1.3 The fact that the President appoints the 2 VPs and the 10 PGs as Senators means that in addition to the 18 chiefs, he or she has the power to appoint up to 30 senators and therefore significantly affect the balance of power in Parliament.
6.1.4 The removal of the requirement that where a person’s appointment requires Senate approval must actually receive this approval before commencing work, means the approval requirement can be circumvented, thereby making its effect redundant.
6.1.5 The removal of the definition of the words “on the advice of” which is often used in provisions for constitutional appointments has the effect of maintaining vagueness and uncertainty but it also betrays the reluctance to subject the President’s appointment powers to a more rigorous standard of checks and balances.