Why amend the constitution before even implementing it?

Kudzai Kuwaza

THE proposed amendments to the 2013 Constitution have set a dangerous precedent and are widely seen as President Emmerson Mnangagwa’s attempt to consolidate political power by creating an imperial presidency.

The proposed amendments cover a raft of changes, which include removing the clause of a president having running mates during elections, scrapping the process of public interviews in the selection of judges and the Prosecutor-General.

Other proposed changes entail increasing the appointment of ministers outside parliament from the current five to seven, decoupling the Zimbabwe Electoral Commission’s delimitation function from the population census held every 10 years, and allowing judges of the Constitutional and Supreme courts to extend their tenure after reaching the age of 70 annually for up to five years, subject to a favourable medical report as to the mental and physical fitness of the judge to continue in office.

They are contained in the Constitution Amendment (2) which was gazetted on December 31 last year.The proposed amendments are most likely going to sail through as Zanu PF has a two-thirds majority in Parliament needed to pass the Constitution Amendment (2) Bill.

However, the changes will give Mnangagwa more presidential powers in stark contrast to the 2013 constitution which sought to curtail executive overreach.

The removal of running mates, for instance, will mean the vice-presidents, who would have had a constitutional mandate by virtue of being elected, will now be confined to serving at the pleasure of the president.

The removal of the clause makes the president the sole centre of power. This was a central theme during the tenure of the late former president Robert Mugabe which now continues under the septuagenarian leader.

The removing of the process of public interviews in the selection of judges and the Prosecutor-General, which was a key tenet of the 2013 constitution, is also seen as an attempt by Mnangagwa to reduce accountability that such public interviews bring and make the selection process opaque.

This clause will also make the judiciary beholden to the executive and make a mockery of the principle of the separation of powers between the country’s two pillars.

Constitutional lawyer Derek Matyszak said the proposed amendments work against the letter and spirit of the 2013 constitution.“The main reason in coming up with the new constitution in 2013 was because the President had too much power,” Matyszak said.

“The proposed changes want to give those powers which had been removed by the 2013 constitution back, which is not good.”He pointed out that the clause he was most concerned about is the clause around the appointment of the Prosecutor-General which has the potential to make the PG’s Office pliant to the executive at the expense of justice.

The changes being proposed are being widely panned as they come before the process of aligning the laws to the 2013 Constitution has even been completed.
This was something pointed out by Mnangagwa’s former advisor and international trade lawyer, Petina Gappah.

“The problem of the proposed constitutional amendments is not that ED will have greater powers than Mugabe. This is hyperbolic propaganda,” Gappah wrote on microblogging site Twitter.
“The real problem is that it sets a dangerous precedent of changing a constitution that’s barely been implemented since it was approved. It’s also a spectacular own goal. For two years, the government has done nothing about constitutional/political reforms they promised. They have set themselves back on foreign policy aims, for example, rejoining the Commonwealth, deepening re-engagement”.

The decoupling of the Zimbabwe Electoral Commission delimitation function from the population census held every 10 years has also raised alarm.

The proposed removal of constitutional boundaries means that the process of delimitation will be subjected to all forms of manipulation in future elections which could give Zanu PF an unfair advantage over the opposition.

The proposed changes are anathema to the tenets of democracy and represent the shredding of the 2013 constitution, according to political analyst Eldred Masunungure.

“I have previously condemned the amendments. The more than 20 amendments are significant in that the accumulative impact is destruction of the democratic tenets worked on for years in the 2013 constitution,” Masunungure said.

“All these amendments will reduce the efforts made in the 2013 constitution to ashes. By and large they take away the democratic and progressive features of the constitution. They amount to regression which is astounding and shocking. This is worse than what we had under the Lancaster House Constitution.

In 37 years we had 19 amendments to the previous constitution. Now we are looking to have 27 changes in one scoop in only six or seven years after the new constitution was put in place. There is nothing more shocking.”

The clause to allow Supreme and Constitutional court judges to extend their tenure to 70 years and beyond has also raised eyebrows.According to Gappah, it sends a clear message that no one is good enough to be chief justice so the current one has to have the constitution amended to prolong his stay.

The proposed amendments should be taken to Zimbabweans and not be shrouded in secrecy, says political analyst Tawanda Zinyama.

“In my view, all amendments should be taken to the people through a referendum after extensive consultations with stakeholders but these amendments are being done secretly,” Zinyama said.

“The current crisis we face is because of issues of legitimacy. If we continue to have unprocedural processes, we are worsening our plight as Zimbabweans. There seems to be sinister intentions which are meant to give the incumbent an advantage over perceived opponents, which is not good.”

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