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Constitutional changes under attack

THE proposed Constitution of Zimbabwe Amendment (No 1) Bill is neither necessary nor urgent because the constitution, as the supreme law, should not be amended lightly, a grouping of lawyers has said.

Wongai Zhangazha

Veritas, a non-governmental organisation which provides information on legislative and legal issues, said the constitution should not be amended in a manner that compromises the independence of the judiciary.

Debate on the proposed Bill is expected to commence in the National Assembly soon. The Bill will be read for the second time next week by Vice-President Emmerson Mnangagwa. The first reading was done on April 6.

The proposed Bill seeks to give the president powers to singularly appoint the chief justice (CJ), deputy CJ and the judge president, removing the constitution’s existing provision for public interviews and recommendations from the Judicial Service Commission (JSC).

Mnangagwa, who also superintends over the Justice Ministry, will move a motion that the Bill be read the second time in the National Assembly. He will then back up the motion with a speech explaining the problem the Bill is designed to address and how it will correct the problems.

After the second reading, the chairperson of the Portfolio Committee on Justice, Legal and Parliamentary Affairs Ziyambi Ziyambi is expected to present the committee’s report on the Bill, including the views gathered during public hearings on the Bill.

“The second reading of proposed Amendment (No. 1) Bill was supposed to take place last Tuesday, but it has been moved to next week. Thereafter I will present the report in parliament on the public views on the Bill,” said Ziyambi.

Written submissions will also be considered.

After the chairperson’s report, parliamentarians will make their own contributions to the debate.

Veritas in its submissions says the Bill is “not necessary and certainly not urgent”.

“It is most regrettable that government is seeking to amend the constitution so soon after it was enacted, and for such unsubstantial reasons. The constitution is the supreme law, the foundation of all other laws in the country,” Veritas says.

“It may not be immutable, but it should not be amended lightly — and certainly not so as to compromise the independence of the judiciary — one of the constitutional pillars on which the rule of law rests.”

Veritas also stated that the Justice, Legal and Parliamentary Affairs committee has an obligation to present a faithful, fair and objective report when it reports back to National Assembly.

The Amendment (No. 1) Bill was rejected by citizens during public hearings that were held for 11 days across the country. It was also rejected by the Judicial Service Commission and the Law Society of Zimbabwe.

In a memorandum, the JSC questioned sections 5 and 7 of the proposed amendment Bill, which seek to amend the hierarchy of the courts by making the Labour Court and Administrative Court subordinate to the High Court.

The Bill seeks to insert the proposed amendment into Section 174 of the constitution, but the JSC argues that the section only deals with courts that are established by an Act of Parliament as opposed to those established by the constitution.

“This is borne out by the fact that Sections 166 to 173 of the constitution specifically establish the Constitutional Court, Supreme Court, High Court, Labour Court and Administrative Court. The other courts are not created by the constitution, but by an Act of Parliament, like the Magistrates Court are then bundled together under Section 174 as ‘other courts and tribunals’,” the JSC says.

“Having already been established by the Constitution under Sections 172 and 173, Labour Court and Administrative Court fall outside the ambit of section 174 . . . It would be improper or even irrational, to say the least, to place a clause subordinating the two courts under a constitutional provision that has nothing to do with the said courts.”

The JSC also questioned why changes should take place, given that the courts are staffed by judicial officers who have the same qualifications.

President Robert Mugabe last month appointed Luke Malaba as CJ in accordance with the current constitution, leaving the deputy CJ post vacant.

However, it is not clear whether Mugabe will appoint a new deputy CJ in terms of the same procedure entailing a JSC advertisement and public interviews.

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