ZIMBABWE is on the verge of having a new constitution which will phase out the current Lancaster House document after parliament passed the Copac draft yesterday, laying the basis for a new political dispensation ahead of general elections later this year.
Report by Owen Gagare
The Copac draft constitution, despite being widely condemned as flawed and unprogressive, was approved in a referendum in March and went through its first reading in the House of Assembly as Constitution Amendment Number 20 Bill on Tuesday.
The Bill was read for a second time on Wednesday, and yesterday it entered the committee stage during which the House scrutinised it clause by clause before it was passed.
Should Senate pass the new constitution next week and the president then assents to it, as is expected, its sixth schedule provides that only certain parts of it will come into operation immediately, while other sections will become effective at a later stage.
The parts that will come into effect immediately include:
The provisions relating to citizenship;
The Declaration of Rights;
The provisions relating to elections, in particular those dealing with the election and assumption of office of a new president, the election and summoning of parliament, and the functions and powers of the Zimbabwe Electoral Commission;
Provisions relating to public administration and leadership and the conduct of members of the security services, and
Provisions relating to provincial and local government.
However, it is only after the first president elected under the new constitution is sworn in and assumes office that the other sections in the new constitution will start operating, repealing the present one.
Legislators, lawyers, including Veritas which deals with parliamentary issues, and negotiators of the three parties in the inclusive government, say the Bill enacting the new constitution will have to be passed by both Houses of Parliament and assented to by the president before the current tenure of parliament lapses at midnight of June 28 because all the Bills which will not have been passed by then will also lapse.
Before parliament dissolves, there will however, be a need to harmonise existing laws, such as the Electoral Act, with the new constitution under which elections will be held.
The Electoral Act will be amended to make provisions for proportional representation, among other things.
Under the new constitution, 60 Senators, 60 women in the National Assembly and 80 members of provincial councils will be elected by proportional representation.
The new Senate will also have two senators specially elected to represent persons with disabilities. How they will be elected and the definition of “persons with disabilities” will have to be set out in the Electoral Act.
The new constitution requires nomination day in elections to be at least 14 days after the elections are called for, and at least 30 days before polling day. The time limits will have to be incorporated into the Electoral Act.
The Electoral Act is also vague and inconsistent on how and when election results must be transferred between electoral centres from ward to constituency, provincial and national level.
These inconsistencies will have to be clarified before parliament is dissolved. Should there be a challenge to the election of the president, the new Constitutional Court will decide although other challenges will remain under the Electoral Court.
A policy decision will have to be made on whether the changes needed to specify the procedure for bringing such challenges before the Constitutional Court are done by legislation through parliament, or by amending the Rules of the Supreme Court.
Provisions of the new constitution relating to provincial and local government will come into operation as soon as the new constitution is gazetted, but in order for the provincial and metropolitan councils to become operational, legislation will have to be passed before then, providing for the functions, powers and procedures of provincial councils.
The Urban Councils Act and the Rural District Councils Act must be amended before the elections to remove the power of the minister of Local Government to appoint councillors.
Some of the changes that will have to be made immediately include amendments to the Criminal Procedure and Evidence Act. The new constitution confers rights on persons who have been arrested or are up for trial.
As soon as the new Declaration of Rights comes into operation, the rights conferred by it will become enforceable. Any appeals involving violations of the new Declaration of Rights will then go to the Constitutional Court rather than the Supreme Court.
When a new president is sworn in, the responsibility for prosecuting criminal cases on behalf of the state will be transferred from the Attorney-General (AG) to a National Prosecuting Authority under the control of a Prosecutor-General (PG). The AG will become PG.