ZIMBABWE Lawyers for Human Rights (ZLHR) has warned Copac against producing a draft constitution that maintains unfettered power in the hands of the executive and emasculates other organs of government, including the legislature and judiciary.
The warnings are contained in a book entitled Zimbabwe’s Constitutional Drafts –– Comparison and Recommendations presented to the constitution-making body in Harare a fortnight ago.
The book also compares the Lancaster House constitution, currently in use, with other constitutional drafts, which include the Constitutional Commission draft and the National Constitutional Assembly and Kariba Drafts, and makes recommendations aimed at assisting the Copac process, among other things. The ZLHR criticised the present Lancaster House constitution and the existing drafts for bestowing too much power on the executive with virtually minimal checks and balances from other organs of government.
They recommended that the executive be led by a prime minister whose political party commands the majority of parliamentary seats and a ceremonial president as Head of State.
According to the ZLHR, the constitution should ensure that the executive was subjected to appropriate and effective restraints that prevent it from dominating other constitutional bodies or branches of government as was the present scenario.
This could be achieved by enactment of clauses requiring approval from the legislature or an independent body for key decisions, such as declaring war, martial law, a state of emergency, concluding treaties and the making of senior appointments. Such decisions are made by the president alone under the current constitution, and all existing drafts maintained this status quo.
Another way of limiting the executive’s power would be through provisions making it accountable to the courts for failure to exercise power in the manner prescribed by the constitution. Presently, the president is immune to prosecution for actions carried out in his individual or official capacity.
The ZLHR also recommended only a legislature with popularly elected representatives with no room forexecutive appointments as is the case under the current constitution whereby the president has a huge influence on the legislature through direct and indirect appointment of chiefs, provincial governors and non-constituency MPs.
In the event that chiefs and representatives of other special interest groups were included in the legislature, the ZLHR said they should be chosen through the process of popular elections rather than be appointed by the executive. Parliament should also have full power to set its own calendar, terms and activities, including its dissolution rather than the present scenario where the president can dissolve parliament at his pleasure.
The lawyers’ body believes that the independence and effectiveness of the judiciary could be enhanced by constitutional provisions to have judges appointed and removed by an independent Judicial Service Commission (JSC) rather than by the executive, so that they do not owe their loyalty to another branch of government.
They felt that the JSC should not be appointed by the executive, but by a legislative organ and include individuals chosen by different stakeholders and members of the legal community.
They also recommended that there be separation of the office of the Attorney-General with the creation of a National Prosecuting Authority to be headed by a Director of Public Prosecutions responsible for all criminal prosecutions.
The Attorney-General would remain as legal adviser to the executive. Appointments and removal of these officials should be carried out by an independent commission rather than by the executive to ensure greater judicial independence.
Furthermore, the constitution should mandate both officials to provide annual reports to parliament in its public sessions for the purposes of public scrutiny and accountability.
The ZLHR’s input attracted mixed reactions from Copac’s co-chairpersons. Douglas Mwonzora of the MDC-T said that he personally welcomed contributions from the ZLHR because they were valuable from a legal perspective and would assist the drafters.
“I have drafted before and this is the third constitution that I’m involved in,” said Mwonzora.
Zanu PF’s Paul Mangwana dismissed the ZLHR’s recommendations as irrelevant stating that Copac had done enough to ensure a constitution “for posterity because the people’s representatives went out to the people and solicited their views”.
Edward Mkhosi of the MDC described the ZLHR suggestions as premature because the constitution-making process was on-going saying any criticism of the Copac process should be made when the draft was completed.