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Constitutional changes retrogressive

Tinashe Kairiza

THE passing of Constitutional Amendment No. 2 Bill into law last week shreds Zimbabwe’s constitution while consolidating President Emmerson Mnangagwa’s imperial powers.

Political pundits say the amendment further compromises judiciary independence.

The passing of the controversial Bill into law received support from several members of the Douglas Mwonzora-led MDC-T.

Signing of the Bill effectively changed the constitution, which was adopted by 95% of the 3,3 million people who voted in a referendum in March 2013.

Despite sharp criticisms over the controversial Bill, Mnangagwa still claimed that Zimbabwe had moved away from the dictatorship of former president Robert Mugabe.

When he took office via a military coup in November, Mnangagwa posed as a reformist, but the new changes to the governance charter speak otherwise.

Last week, Mnangagwa signed Constitutional Amendment No.2 Bill into law and gave himself unfettered powers to directly appoint senior judges, including the Chief Justice.

Chief Justice Luke Malaba, who presided over the disputed 2018 elections Constitutional Court (ConCourt) case, is perceived to be a beneficiary of the new law considering that, as he turns 70 years today, his term is set to expire.

Malaba has always been viewed as a Mnangagwa loyalist, a tag that has tainted the top jurist.

The new law also raises the age of retirement for judges from 70 to 75 years, meaning Malaba is now saved from retiring from the bench. Precisely, Malaba has been protected by the new law.

The civil society and opposition political parties are planning to launch a court challenge against the constitutional amendments.

Some of Zimbabwe’s legal minds including Tendai Biti and Thabani Mpofu have vowed to challenge the legality of the amendments at ConCourt.

They argue that the controversial law was tailored to expedite Mnangagwa’s political ambitions to stay at the helm.

Among other salient features of the new law, Mnangagwa will also now have powers to appoint vice presidents after the running-mate clause was struck off the supreme law-in a move widely viewed as a strategy to clip his deputy Constantino Chiwenga’s wings. Chiwenga, a former military commander is said to harbour presidential ambitions.

Writing in a blog titled On Zimbabwe’s hot porridge constitutional amendments, legal expert Sharon Hofisi contends that, the new changes, just as the “19 amendments,” applied to the Lancaster House constitution during Mugabe’s tenure were meant to further the narrow interests of politicians, rather than “improve the constitution as a living document”.

“The 19 amendments to the Lancaster House Constitution became tools to promote political benefaction and not to improve the constitution as a living document,” wrote Hofisi.

Prior to the new law, which now gives the President powers to directly appoint judges, the legal officers were subjected to public interviews to demonstrate a semblance of their independence.

Political analyst Prolific Mataruse contends that amendments create a conflation of the powers of the judiciary and the executive, with Mnangagwa emerging as the biggest beneficiary.

“The judicial appointment system that we had was fairly a much more progressive one than the one the amendments propose. But the separation of the key judicial appointments and the executive is becoming blurred.

“Constitutional amendments do really exacerbate the polarisation in the country. And more open systems help that,” Mataruse argued.

Constitutional law expert Alex Magaisa advances the argument that the new legislation sparked a constitutional crisis, as it stands to directly benefit Malaba who is widely viewed as Mnangagwa’s loyalist.

This week, Magaisa wrote: “Zimbabwe is hurtling into a constitutional crisis with the two recent amendments to the national constitution.

“Using this chance to extend his (Malaba) term of service beyond 70 years would not only be unlawful, but a gross abuse of the constitution.”

Former deputy prime minister Arthur Mutambara also waded into the debate, arguing that the new law created a “pliant, compromised and captured judiciary, and re-introduction of an imperial presidency …”

The former deputy premier recently wrote in a weekly paper that Mnangagwa would leverage on his new found imperial powers to “control and determine succession in Zanu PF and the country”.

Crisis Coalition of Zimbabwe director Blessing Vava noted that the tragedy with the amendments, which have since been endorsed by Mnangagwa, came at a time Zimbabwe was yet to align its existing laws with the 2013 constitution.

Vava argued: “What is more worrying in this instance is the appetite to amend the constitution before its implementation … the amendments are all meant to consolidate power in the executive thereby compromising separation of powers between the judiciary, executive and judicial.”

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