Women say ‘don’t touch our Constitution!’ Part 2

By The NewsDay | Feb. 22, 2020 | 6 Min read

THE reasons women are rejecting the proposed Constitutional Amendment Bill were discussed last week. We conclude by looking at the disturbing and unchecked megalomaniac tendencies of our present leaders.

Guest column: Miriam Tose Majome

The rules for amending the Constitution are contained in Section 328. The proposed Constitutional Amendment Bill does not require to be subjected to a national referendum. Only amendments to clauses in Chapter 4 and Chapter 16 require a national referendum.

Chapter 4 contains the Declaration of Rights and Chapter 16 contains clauses relating to agricultural land. None of the 27 clauses contained in the Amendment Bill are in Chapter 4 or Chapter 16. Therefore no referendum is required to ask the people if they want the constitutional amendments or not. Care was obviously taken to eliminate technical complexities that could compromise the passing of the Bill.

Only the support of two thirds of legislators in Parliament is needed after a bit of internal party whipping. That’s how easy it is to change a Zimbabwean Constitution. While it is legally correct these numerous regular amendments have set a dangerous political and legal precedent. The powers behind the proposals seem to want to prove that they can do whatever they want just because they can. They can change the Constitution anytime if they have the numbers to serve whatever sectional and situational interests they are pursuing at the time. The current rate of constitutional amendment in Zimbabwe is every three or four years. The first amendment was in 2017 which was four years after its promulgation as the national governance charter and the second amendment is coming just four years later. If this rate holds constant in a decade, the 2013 Constitution will soon be radically different.

The Kenyan Constitution of 2010 which Zimbabwe copied almost word for word in some parts is yet to be amended. Since 2010 there have been failed attempts to amend it but Kenyan politicians seem to take constitutional amendment more seriously than their Zimbabwean counterparts. The Kenyan Constitution is proving to be more difficult for politicians to tinker with than they do in Zimbabwe.

The South African Constitution of 1996 has been amended seventeen times in the 24 years since its inception. The United States Constitution has been amended only 33 times in its 231 years since its inception in 1789. The French Constitution of 1958 has been amended 24 times in its 68 years. The Lancaster House Constitution was amended 20 times in 33 years from 1980-2013. The 20th amendment was the technical repealing of the Lancaster House Conference Constitution to give way to the 2013 Constitution. If the proposed 27 amendments are passed, it means the Constitution of 2013 will have been amended 28 times in the first seven years of its life.

The American Constitution is famed for being nearly impossible to amend. 33 amendments in two centuries is testament to that fact. Its writers had amazing foresight and insight into human foibles to understand that people in power will always seek to expand their power that is if given the slightest chance. So the American founding fathers put virtually impregnable safeguards to curb the power mongering and human excesses by future generations of political leaders.

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Nowhere does the notion of power mongering hold truer than in present day Zimbabwean politics. No less than 12 of the proposed 27 amendments in the Constitutional Bill are aimed at increasing and consolidating the current President’s personal political power. Amendments to Sections 91, 92, 93, 94, 95, 97, 101, 104, 180, 186, 244A and 259 will make the sitting president more powerful than he is now.

Amendments to sections 91, 92, 93, 94, 95, 97 will do away with the public election of a Vice-President. The 2013 Constitution prescribed the concept of a running mate akin to the American system. The idea behind it was to resolve the long-running presidential succession disputes which plagued the nation during former President Robert Mugabe’s presidency. The succession conflicts and factional fights which ensued in the governing party Zanu PF led to the complete paralysis of government business between 2013 and 2018. Various factions with ever-evolving curious names like Gamatox, Weevils, G40 and Lacoste jockeyed furiously to succeed Mugabe because there were no rules for presidential succession.

The running mate clause written into the 2013 Constitution had resolved the problem because in the event of the president leaving power for whatever reason, the elected Vice-President would succeed without need for another election.

By a stroke the succession and factional fights within political parties were stymied. The running mate clause has not yet been implemented to see how it will work from 2023, but some people within Zanu PF would rather things remain the way they are. They want to keep on fighting for the presidency in a manner they are accustomed. The President wants the exclusive authority to appoint and dismiss the Vice-President at his own pleasure. If this amendment succeeds the succession issue will remain as murky and as divisive as it is and will forever remain the nation’s Achilles heel.

The amendment to section 104 will see the President being empowered to appoint two more unelected people into ministerial positions from the current five to seven.

He thinks appointing his own five is not enough and wants more. Amendment to section 180 will see the President being empowered to promote sitting judges from the Supreme Court and High Court to the Constitutional Court or Supreme Court. The appointments will be made with consultation with the Judicial Service Commission but the prerogative to appoint them remains his. This amendment will dispense with public interviews for judges’ promotions when vacancies arise in higher courts. Amendment to section 186 will empower the President in consultation with the JSC to renew the employment contracts of favoured judges who will have reached retirement age.

Amendment to section 204A will empower the President in consultation with the Public Service Commission to appoint the Chief Secretary to the Cabinet.

This is an extremely curious one as it personalises and politicises the post for the first time. It curiously and inexplicably makes the post a constitutional issue for the first time. To date the post has been an administrative apolitical civil service function subservient to the Public Service Commission and not personally to the President. The Chief Secretary to the Cabinet will owe his allegiances to the President personally. The President will also be able to pick and appoint the Public Protector in a new proposed new post which will run concurrently with the Human Rights Commission.

The proposal to alter section 124 to extend the women’s quota in parliament by another 10 years deserves its own article. Suffice to say the ordinary women of Zimbabwe who are not parliamentarians and don’t stand to gain personally from the proposed extension oppose it. It is just a cheap gimmick by male politicians to deny them 50% of the seats in Parliament as prescribed by sections 17, 56 and 80 and other gender equality clauses and policies.

It is trite that a Constitution is sacred and supreme law and so should not be tinkered with unless it is absolutely necessary and beneficial to the nation. The move to amend the Zimbabwe Constitution particularly the timing and the proposed manner does not sit right in the national psyche. Presently people have more pressing things to worry about than the latest antics of politicians. There are more passionate discussions going on about the shortage of roller meal than this proposed Bill. There is a general feeling of resigned helplessness and despite the very reasonable protestations the Bill could sail through with little or ineffective resistance because parliamentarians from across the political divide have situational and personal interests to gain from the amendments. This is how easy it is to change a Zimbabwean Constitution. For example, the women MPs want the quota system extended for another 10 years because they stand to gain personally from it. Other MPs want to be seen as supporting their leaders’ ambitions so that they can continue gaining favours from them.

Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]