THE Ministry of Justice, Legal and Parliamentary Affairs has been under fire for the snail’s pace it is taking to align the country’s laws to the Constitution adopted in 2013. Some watchdogs argue that the delays render the Constitution a ‘waste of time and fraud’ against Zimbabweans because the Constitution, which is the supreme law of the country, took a lot of resources and manpower to be made but can only be fully implemented after the alignment of laws.
In written responses to questions sent by senior political reporter Wongai Zhangazha (WZ), the ministry’s permanent secretary Virginia Mabhiza (VM) addressed the concerns. She also spoke about the military’s involvement in National Prosecuting Authority (NPA) and other issues affecting the ministry. Below are excerpts of the interview:
WZ: What is delaying the alignment of laws to the Constitution and yet already we have seen the amendment of the Constitution through Constitutional Amendment Bill (Number One) – which confers the President with powers to appoint the Chief Justice, his deputy and Judge President instead of subjecting them to public interviews – sailing through parliament?
VM: Firstly, it would appear that this question is irregular in that it gives an impression that a Constitution must or may not be amended merely because there is a legislative alignment process that is concomitantly being undertaken with that of amending the Constitution.
That notwithstanding, I intend to address the question of delay in the alignment of legislation separately from that of the constitutional amendment, and succinctly demonstrate why the alignment of legislation is not capable of being an antecedent of the amendment of the Constitution in the jurisprudence of constitutional implementation.
Again, we have always wondered in the Ministry if there is any deployment of scientific approaches of analysis in categorically asserting that there is an inordinate delay in the alignment of laws to the Constitution.
Surely, we firmly believe that the purported delay does not arise if regard to the numbers we brag of having attained to date and a few dozens of outstanding Acts that are yet to be fully enacted.
To be precise, and as a matter of updating you on the progress I alluded to earlier, of 396 Acts in our statute books upon the adoption of the Constitution, our alignment needs assessment revealed that 206 required alignment. Sixty seven of these are confined to making appropriate provisions for the representation of women in statutory bodies. Fifty one of these have been aligned by the coming into force of the National Prosecuting Authority Act [Chapter 7:20], with two statutes having been aligned by the Public Debt Management Act [Chapter 22:21].
Moreover, the General Laws Amendment Act has been passed and it amends 125 Acts. More Acts, including new ones which give effect to the new provisions of the 2013 Constitution have been enacted and these are as follows: Criminal Procedure and Evidence Amendment Act; Gender Commission Act; Joint Ventures Act; Local Government Amendment Act; Judicial Laws Amendment Bill, Deeds Registries Amendment Bill; National Competitiveness Commission Bill and the Special Economic Zones Act.
If you do your mathematics well, you will realise that a mere plus or minus 30 Acts remain outstanding. Of the 30 outstanding Bills, I am grateful to announce that a greater number of them, 11 in particular, are before Parliament as follows: Insolvency Bill, Mines and Minerals Amendment Bill, Public Procurement and Disposal of Public Assets Bill, Estate Administrators Amendment Bill, Shop Licenses Amendment Bill, Lands Commission Bill, National Peace and Reconciliation Bill, Reserve Bank Amendment Bill, Civil Aviation Amendment Bill, ZEP-RE (Membership of Zimbabwe and Branch Office Agreement) Bill and Movable Property Security Interests Bill.
There is also a category of legislation that has been consulted upon and is highly likely to be tabled before Parliament soon before the lapse of the fifth and last session of the Eighth Parliament. They are as follows: Education Amendment Bill, Coroner’s Office Bill, Prisons and Correctional Services Bill, Computer Crime and Cybersecurity Bill, E-Commerce Transactions Bill, Electronic Evidence Bill, Medical Services Bill, Traditional Leaders Bill, Environmental Management Amendment Bill, Disabled Persons Bill, Languages Bill, International Treaties Bill, Child Justice Bill, Children’s Amendment Bill and Tourism Amendment Bill.
Surely, with these statistics it cannot be said that there has been a delay in the alignment process, if regard is had to the fact that the alignment process itself is not an event, but a process that calls for far-reaching consultations both by the Executive at the pre-bill stage and by Parliament itself at the hearings stage of the Bills in terms of section 141 of the Constitution.
Amendment of the Constitution
Then on the subject of amending the Constitution, I wish to demonstrate that there is nothing irregular in amending it while we are still ceased with a successful legislative alignment process.
First and foremost, stand guided by the Honourable Vice President E.D Mnangagwa’s wise counsel during his presentation of the final submission on the Constitutional Amendment after a comprehensive debate in the National Assembly on the same. The Vice President highlighted that if a Constitution has itself a glaring lacuna or gap, the first and imperative action is for the legislature to move in with speed and correct that anomaly, for Parliament cannot surely shy away from its duties that are constitutionally conferred and authoritatively given by the people.
With all due respect, amending the Constitution takes precedence because the act of aligning legislation to the Constitution is intended to give effect to constitutional provisions by way of legislation.
It follows then that if you have a faulty Constitution, maybe as a result of the oversight of the framers of the same, you move in to regularize the same and that is precisely why Section 328 on the Amendment of the Constitution is part of the supreme law of the land. In essence therefore, the legislative alignment process and the Amendment to the Constitution are totally different issues.
WZ: Why is it easier to change the Constitution than to enact or align laws in terms of the Constitution?
VM: It is not at all easy to amend a Constitution than to enact legislation.
If due regard is paid to the procedure that must be followed when amending the Constitution as set out in terms of Section 328 on Amendment of Constitution, one would think twice before asking this question. In order to amend a Constitution, an affirmative 2/3 votes for both Houses are required whereas any other pieces of legislation require a simple majority
Entrenched provisions are difficult to amend. For instance, in terms of section 328 (6), where a Constitutional Bill seeks to amend any provision of Chapter 4 on Declaration of Rights or Chapter 16 on Agricultural Land, it must be submitted to a referendum within three months after it has been passed by Parliament by the affirmative votes of two-thirds of the membership of each of the houses of Parliament.
These entrenchments also apply to provisions relating to the amendment of term limits provisions and Section 328 itself as prescribed by Section 328 (7) and (9) respectively. Section 328 (9) restricts the amendment of Section 328 itself in case someone wants to amend the amendment clause first before attempting to amend other provisions.
Furthermore as alluded to above, amending constitutional provisions other than the entrenched ones is also onerous, though with a measure of laxity as they do not require a referendum but at least a two thirds majority in both houses of Parliament.
Thus, in view of the foregoing, it would be not proper to say it is easy to amend the Constitution than to align legislation to the same.
More so, the fact that we sponsored a Constitutional Amendment Bill does not mean it is easy, but it was imperative for us to do so as it is now in the public domain that the current position created a number of absurdities such as the invidious position where junior Judicial Officers participate in the interviewing process of their superior such as the Chief Justice or where an outgoing Chief Justice or Deputy Chief Justice participates in such an interview.
Doesn’t it naturally make sense that an outgoing Chief Justice should not chair interviews for his or her potential successor? The reason is simple as it is predicated upon a possible conflict of interest, which mitigates on the principles of good governance and transparency of the whole appointment process leading to the contamination of the bench, and subsequent compromise to the smooth administration of justice which invariably must be incorruptible for all intends and purposes.
WZ: The Government has previously given excuses for delays in aligning laws to shortage of drafters, have you considered making use of law based organisations to assist and quicken this process?
VM: It was only at the beginning that we raised issues around our staff compliment. The Civil Service Commission responded positively and filled in all critical posts.
The Attorney General (AG)’s Office now has a fully-fledged Legal Drafting Division that is responsible for drafting bills, with able and competent drafters who have made legal drafting their niche area. Currently the alignment process is going on well as alluded to above.
And for the record, the legislative drafting role of the AG is at law not capable of being substituted by anyone be they law schools, legal think tanks in law development or otherwise as it is the sovereign function of the AG in terms of Section 114(4)(c) of the Constitution to draft legislation on behalf of the Government.
Thus, we do not look forward to a time when specialised drafting will be contracted out. This is not to say that we are not open to those who want to come up with their laymen drafts as that has been our modus operandi in many respects where the line Ministries may subject their Bills to consultancy or may work with development partners and other non-state actors such as civic society organizations to come up with Layman Bills, solely as a multi-stakeholder and Public-Private Partnership best practice model based on democratic notions of consultations and collaboration before validation, not as a result of deficiencies predicated upon shortages of drafting competent personnel.
WZ: When will the Ministry of Justice align the 1984 Citizenship Act to the Constitution which allows dual citizenship seeing that a lot of people are having challenges with attaining dual citizenship?
VM: We have repeatedly hammered on the point that it remains the responsibility of line Ministries to align laws that fall under their ambit. The Ministry of Justice only avails technical and sometimes financial support to such line Ministries under the rubric of the Inter-Ministerial Taskforce (IMT) on Alignment of Legislation that we chair for the purposes of coordinating alignment. Accordingly, the Citizenship Act falls under the Ministry of Home Affairs, who were assigned the responsibility of administering the Citizenship Act. Thus, they are better placed to respond to this question.
WZ: There have been complaints that Sheriffs fees are so expensive in relation to access to justice, why are they so high?
VM: Sheriff fees are set up by the Judicial Service Commission (JSC) in Consultation with the Minister of Justice, and the fees are set on a scientific basis in terms of distances, manpower and resources required to effect the process. It may however be necessary to re-visit the fee structure if it is of such concern to members of the public. In addition, why is one charged twice to serve a process at parties that are located at one building? For example the Attorney General and the Justice Ministry which are housed at the New Government Complex. It should be noted that Court processes which are served by the Sheriff are designed in such a way that they are served separately on different parties regardless of the fact that these parties maybe in the same location or building. The fact that the parties are in the same building therefore does not have a bearing on the Costs. However, as noted above, the JSC remain the best to respond with full authority on the same.
WZ: What happened to the case where Zimbabwe Law Officers Association (Ziloa) had challenged the constitutionality of National Prosecuting Authority (NPA) which is comprised of the army and police personnel? The late retired Chief Justice Godfrey Chidyausiku had reserved judgement in 2014.
VM: The matter is sub judice hence we cannot comment on it. If there is anyone who feels that the matter has taken long to resolve, they can always approach the courts.
WZ: How is it good for the NPA to have over half of its Prosecutors from the security sector?
VM: The purport of your question goes to the root of the matter which was part of the ZILOA case as discussed above, and a response to this particular question will be found foul of the sub-judice rule.
WZ: What is Government Policy on the mass resignations hitting NPA due to low staff morale?
VM: We respect the sacrosanctity of the independence of the NPA, and will thus defer to the same by urging you to pursue a response from the NPA.
WZ: What is the Ministry doing to improve the poor working conditions at the NPA and other justice offices nationwide as there have been complaints of lack of basic resources such as stationery, office furniture and cars?
VM: The Ministry is not responsible for employing personnel let alone setting conditions of service or civil servants. It remains the responsibility of the Civil Service Commission. Section 203(e) of the Constitution specifies that the Civil Service Commission has to implement measures to ensure effective and efficient performance of members of its service. Thus we, just like other Government Ministries submit our administrative and staff needs to the Civil Service Commission for execution by them. The Civil Service Commission is better placed to give an appropriate response as well as Treasury with respect to the NPA.