New constitution: Govt seeks to rescue executive powers

Since the advent of the new constitution in 2013, a large number of legislative tasks have faced the Zanu PF government. These can be divided into two categories: ensuring the conformity of all existing statutes with the new constitution (“alignment”), and operationalising the new institutions required by the constitution.

Derek Matyszak Researcher & Lawyer

This analysis shows how, under the guise of alignment and operationalising the new institutions, government has sought to claw back executive power which the constitution intends diminished. The focus here is on four specific areas: voter registration; two independent commissions — the Zimbabwe Gender Commission and National Peace and Reconciliation Commission (NPRC); the powers of the National Prosecuting Authority (NPA); and two aspects of Criminal Procedure.

Voter registration

There was considerable controversy over the voters’ roll in the elections of 2008 and 2013, and in elections before this. Much of the controversy concerned the manner in which the office of the Registrar-General of voters operated.

The legislative intent behind the new constitution in this regard was to resolve many problems concerning voter registration, by removing overall authority for the process from the hands of a single individual, appointed by an interested body, and placing it under the authority of an “independent commission supporting democracy”, the Zimbabwe Electoral Commission (Zec).

However, the General Laws Amendment Bill will not give full effect to this legislative intent, as is clear from several provisions analysed.

Firstly, while the Bill will amend the Electoral Act by removing reference to the Registrar-General of Voters, this does not expunge Tobaiwa Mudede’s presence from the legislation. Mudede resurfaces and is re-inserted into the Electoral Law by way of definitions which are to form part of Section 18.

One such definition is that: “‘… former Registrar-General of Voters’ is a reference to the Registrar-General of Voters appointed in terms of Section 18 of this Act before its substitution by this section …”. This provision is quite remarkable, if not entirely unique, in that it refers, not to an office occupied by an individual, but to a particular individual himself.

Secondly, not only is Mudede re-inserted into the electoral process in this way, but residual power is accorded to him arising from the functions he carried out previously. Mudede turns up in the voter registration process itself.

Rather than a directive from government or even a provision in the Bill, that all documents and data pertaining to registration from the office of the Registrar-General of Voters be handed to Zec, the Bill has specifically been drafted with the understanding that Mudede (in person, and not his office) will retain control over this data.

Some of the documentation relating to this process is deemed so confidential that the Bill proposes that ministerial regulation should be required before Mudede can be compelled to release it.

Thirdly, the Bill contemplates Mudede playing a watchdog roll over the commission’s compilation of the roll and approaching the commission to require the inclusion or removal of entries from the roll.

Fourthly, as the Bill currently stands, Zec may hand the entire process of actual voter registration nationally back to Mudede.

Finally in this regard, the Bill allows Zec to delegate voter registration to persons who are not employees of the commission or deemed to be. This then violates the constitutional requirement that it is Zec, and not a delegate, that undertakes the process of compiling the voters’ rolls.
The section on voter registration ends by noting that due to the failure of legislation pertaining to voter registration to be in place on the effective date of the constitution, various violations of the charter have occurred. The Bill seeks to airbrush these violations from existence by “deeming” several factual events not to have happened. This is neither constitutionally nor jurisprudentially possible.

Gender Commission

Many of the problems seen in the Gender Commission Act are common to the National Peace and Reconciliation Bill, but each is treated separately in the report for ease of understanding.

The composition of the commission is obviously critical to its independence, but there are a number of problems in this regard. Furthermore, the legislation generally creates what amounts to a department in the Ministry of Women’s Affairs, Gender and Community Development rather than an independent commission as envisaged by the constitution.

This is briefly demonstrated in a number of ways.

Firstly, there are limitations placed on the tenure of commissioners, with the minister having power to fix the term of appointment as well as dismiss commissioners. Both these powers are unconstitutional. In particular, the constitutional stipulation that the commissioners may only be removed in the same manner as that provided for judges, has simply been disregarded.

Secondly, the mandate of the commission is severely restricted, limiting its investigations, which are the subject of the commission’s reports, merely to systemic barriers prejudicial to gender equality and not wider violations of rights and general promotion of gender equality as provided for by the constitution. A comparison with the South African Commission on Gender Equality is instructive here.

Thirdly, there are extensive powers of interference by a line minister in the operations of the commission. The Act purportedly gives the minister power to give “policy directives” to the commission, to issue certificates blocking disclosure of information and to determine the format of reports by the commission to parliament. The minister also has a strong say in the appointment of senior staff.

While it is permissible and indeed highly desirable that there is an enabling Act for each commission to establish the parameters of their operations within the confines of the constitution, Section 341 of the constitution requires that such Acts do not compromise the commissions’ “independence or effectiveness”. The contrary is clearly the case in regard to this Act, but fully in keeping with government’s insistence on, and inability to wean itself from, highly centralised control.

National Peace Commission

As pointed out earlier, many of the problems with the Gender Commission and its legislation are common to the NPRC. The drafters of the enabling Bill for the NPRC thus contemplate the body functioning in a similar manner to that of the Gender Commission, that is, more as a department of a ministry than the fully independent institution envisaged by the constitution — a fact noted by the National Transitional Justice Working Group.

National Prosecuting Authority

The NPA is a new institution, like the NPRC, brought into being by the 2013 Constitution. The key issue relates to the independence of this Office.

As the report details, Section 260(1)(a) of the constitution provides that the Prosecutor-General (PG) “is independent and is not subject to the direction or control of anyone”, but the Act places the PG under the control of the Board of NPA, who are all ministerial appointees. Thus, the independence of the PG can be severely compromised, and the Act in this respect seems unconstitutional.

There are also issues concerning the determination of the remuneration for the PG, which are anomalous and probably unconstitutional, but not as serious as the tampering with the independence of this office.

Executive interference in the office of the PG is not as obvious or as direct as it is in the case of the two independent commissions considered above. The control that a minister may be able to exercise over the salary of the PG might only become relevant if an incumbent’s terms is to be renewed. The ability to give policy directions to the board renders the power over the PG indirect and is diluted as a result. Nonetheless, these powers of the executive are reflective of a general approach by government to institutions and offices which ought to be independent and which do not accord with the constitution.

Criminal Procedure

There are two key issues pertaining to Criminal Procedure — those relating to the death penalty and those relating to bail, both issues that have been the subject of previous heated debate.

As regards the death penalty, the drafters of the constitution had probably intended that the death penalty would fall away in its entirety and by rendering current provisions in regard to the death penalty unconstitutional, may have hoped that no new law would be introduced.

The new constitution expanded and extended, on the basis of age and gender, the categories of people on whom the sentence of death may not be passed. It also provides that the death penalty may only be imposed for murder and then only if the murder is committed in “aggravating circumstances”.

However, the General Laws Amendment Bill proposes to introduce into criminal law an extremely expansive definition of aggravating circumstances, listing most of the circumstances in which murder is committed. In this way, the constitutional intent of allowing a law to provide for the death penalty only in rare and exceptional circumstances (if at all) will be defeated.

While this appears immediately to increase the power of the courts and not the executive, clearly the re-introduction of the death penalty has the effect of increasing state power, albeit one that is exercised through the courts.

As regards the notorious Section 121(3) of the Criminal Procedure and Evidence Act, the paper alludes to the frequent use of this section by the state to defeat bail applications.

Despite the section having been ruled unconstitutional, the minister guiding a Bill to amend the Act through parliament, displayed governmental intent to retain executive power over bail by making repeated attempts to re-introduce the section into the Act, albeit in an attenuated form. Fortunately, the negative reports of the Parliamentary Legal Committee finally caused the minister to remove the offending provision from the Bill.

Conclusions

Zimbabwe’s constitution is currently being violated in several ways — the failure to establish constitutionally required institutions; the failure to introduce new legislation to give effect to the constitution; and the failure to amend or formally remove legislation which has become unconstitutional by virtue of the new charter, referred to by the misnomer of “alignment”.

The latter process has proved a convenient fig leaf for government. All charges against it of failing to implement the new constitution are subsumed under the head of alignment with government then claiming that alignment is a lengthy process that cannot be achieved overnight. Government has further claimed that the alignment process is “going well”, with the Chief Law Officer asserting that only 116 Acts out of 396 Acts remain to be aligned to the constitution, and that only 49 of these require extensive changes. The criticism that many of the legislative changes to date are inadequate and omit numerous clauses required (as did the Electoral Act) to bring statutes into full conformity with the constitution, appears to have been disregarded.

Governmental cynicism towards the new dispensation extends beyond acts of omission. Government has seen in the alignment process an opportunity to rescue executive power diminished by the new constitution. This is patent in regard to the independent commissions.

The re-insertion of the “former Registrar-General of Voters” into the electoral process and executive intrusion proposed by enabling Acts for the Gender Commision and NPRC, are manifestly unconstitutional. The similarities and differences between the two Bills in this regard make it clear that it cannot be said that the drafters of this legislation “know not what they do”. Since both proposed Bills mirrored each other in many ways, where an unconstitutional provision appears in the one and not the other, it must be assumed that the insertion was done with due deliberation and awareness.

Legislation for the commissions demonstrates that government thinks only in terms of the possibility of institutions which are either part of government or regulated by government.

Government seems unable to conceptualise independent institutions which fall into neither category. Everything possible and that which legally is not, is being done to retard the advent of an improved democratic order.

Matyszak is a senior researcher with the Research and Advocacy Unit (Rau). This is a summary of a paper titled Reluctant Reformers: Legislative Misalignment and the New Constitution which was published by Rau this week.