TWO themes dominate the Zanu PF-proposed amendments to the Copac draft constitution:
Alex Magaisa, Constitutional law expert
First, an excessively powerful executive presidency which is almost authoritarian and second, a parliament so weak that it is no more than a puppet of the executive.
If there was a weakness with the Copac draft, it was that it already conceded too much power to the executive presidency but the effect of the Zanu PF amendments, if they were to be adopted, would be to give the office of the president more power, making the resulting draft even more objectionable.
Concept of limited government
To start with, a note on the idea and importance of limited government is appropriate. In making a constitution, one of the cardinal rules is to give effect to the principle of adequate checks and balances on the exercise of state power. This is the core of the principle of constitutionalism – the idea of limited government. It is that a constitution is not a document that merely describes and allocates power but limits and restrains governmental power.
Dissolution of parliament
Zanu has changed the clause on dissolution of parliament to give unfettered discretion on the president to dissolve parliament at any time. There are virtually no checks and balances on the use of this power. This leaves parliament completely vulnerable and at the mercy of the president.
The original clause in the Copac draft allows the president to dissolve parliament only where parliament has resolved on a vote of two-thirds majority for the dissolution of each house. The limitation is that the president cannot just make a unilateral decision to dissolve another arm of the state.
Now, however, by giving the president unfettered powers to dissolve parliament at any time, the Zanu PF amendments make parliament beholden to the president.
The implications of this presidential power to dissolve parliament at his or her whim are serious.
Since the president can use this power at any time and for any reason, it means a president whose party does not have or has lost a parliamentary majority can decide to dissolve parliament and call for fresh elections. Therefore, if a winning president’s party loses elections, instead of facing the prospect of governing without a parliamentary majority, the president can simply dissolve parliament and order fresh polls, thereby negating the will of the people. A rule that allows a facility for one person to override the will of millions is patently undemocratic.
Given that parliament is at the mercy of the president, it will have to toe the president’s line or face dissolution, making its role as an instrument of accountability useless. Since MPs major concern is political survival, they will be forced to do the president’s bidding or lose their positions. In the end, it renders parliament a puppet of the executive.
If indeed the president must have this power, independent of parliament’s resolutions, there must be a consequence on the president’s position upon the dissolution of parliament. A check on this power could be that whenever the president dissolves parliament, he or she must also vacate his or her seat.
Indeed, on this score even the current constitution has a better check in that it states in section 29 that the president’s tenure of office is concurrent with the life of parliament.
The Copac draft contains specific provisions that limit the terms of office for heads of the various security services organs – army, air force, police, correctional services and intelligence service. Under the draft a person can serve in any of these offices for a maximum of two terms of five years each.
Zanu PF has changed this so that after serving the two terms, the service contracts can be renewed on an annual basis. This means a person can serve in these offices for an indeterminate period as long as the president renews his or her appointment on an annual basis. The net effect is that there are no limited terms for these offices.
However, what is worse about this provision for renewal of contracts on an annual basis is that it actually strengthens the hand of the president, making persons in these offices mere puppets. This is because the president holds the key to the renewal of one’s appointment on an annual basis and this makes holders of these key offices eternally beholden to the president. They have to do the president’s bidding otherwise their contracts will not be renewed.
It means the commissioner-general of police, army commanders and other senior security officers are effectively kept on the leash by the president. This is a very cunning way to ensure that office holders in the key security sector are perennially in the president’s pocket. By contrast, the Copac draft does not have this risk.
Declaration of war & peace
The Copac draft allows the president to declare war and peace but requires him or her to seek the approval of parliament within seven sitting days. This is an important check on the president’s power and promotes responsible decision-making and accountability. The purpose of the approval requirement is to check and balance the powers of the president when declaring war or peace. Zanu PF has however deleted the requirement for parliamentary approval.
The draft also contains a clause (11.8 (4)) requiring parliamentary approval for deployment of defence forces outside the country but this clause has also been deleted by Zanu PF. The effect of the deletion is to remove important checks and balances in regards to the president’s use of the defence forces. The removal of parliamentary approval leaves parliament without a role and virtually powerless. This is consistent with the object of reserving all powers in the office of the president and rendering parliament powerless.
Further, the document also made the security services subject to the authority of parliament and cabinet, apart from that of the president and the constitution. However, Zanu PF has deleted reference to parliament and cabinet suggesting, in the case of parliament that the security services are not subject to parliamentary authority. The removal of parliament from this particular clause demonstrates yet another instance of its marginalisation whilst ring-fencing exclusive authority to the presidency.
The Zanu PF amendments further marginalise parliament by watering down the requirements for political accountability for the deployment of the defence forces. The draft requires that when the defence forces have been deployed to assist in maintaining order (internal deployment) and outside Zimbabwe, for any purpose, the president must “promptly and in appropriate detail” inform parliament “of the reasons for their deployment” and details of where they are deployed.
Zanu PF has watered-down this requirement by simply requiring that the president must inform parliament.
Finally, the Copac draft also makes provision for the establishment of the intelligence service under a law made by parliament. However, Zanu PF has removed this provision leaving the power to establish an intelligence service in the hands of the president through a presidential directive or order.
This has demonstrated that the effect of the Zanu PF amendments to the Copac draft is to highly-centralise power in the office of the executive president and to marginalise parliament, rendering it powerless and less effective.
Magaisa is a constitutional law expert based at Kent University, UK.Email:wamagaisa @yahoo.co.uk