By Takura Zhangazha
The Parliament of Zimbabwe is in the process of amending Zimbabwe’s national constitution, for the second time in as many years.
At the time of writing, the Constitutional Amendment Bill number 2 is headed for Senate after having been agreed to by way of a required two-thirds majority vote in the National Assembly. The latter vote having been predictable given the fact that the ruling ZANU PF party commands the necessary numbers in the National Assembly.
The public debate around this second amendment has been relatively muted, even on social media. That’s probably because this one comes hard on the heels of the first one that was also recently passed by Parliament after a constitutional court order that the voting be done again. It could also be because of a general apathy on the matter by the public.
There, however, have been some comments either in defence or disparagement of Constitutional Amendment Bill Number 2. Those in defence of it as expected are ruling party officials and Members of Parliament (MPs) or government functionaries. The opposition MDC-T has also not vociferously opposed the Bill and had some of its own National Assembly members who voted in favour of the Bill. The MDC Alliance MPs that remain in the National Assembly have voted against it.
What are the changes?
And while we await the final details of the final version of this amendment after Presidential assent, the legal intentions are fairly clear. And also for this blog to be more useful, it is important to give a brief summary of some of the major proposed amendments.
The most talked about proposed changes are, for example, that the promotion of serving court judges will be done by the President from the recommendations of the Judicial Services Commission (JSC).
This also includes the removal of an age limit for serving judges, which had previously been set at the maximum age of 70 years. The president will also be able to appoint a Prosecutor General on the recommendation of the JSC without public interviews. Another proposed change is that there will no longer be a legal requirement that a Presidential candidate have running mates. The President will also have powers to appoint seven ministers, as opposed to the previous five, who are not Members of Parliament.
The less talked about amendments to the constitution in this instance relate to the extension of the women’s quota for another two terms of office of Parliament, as well as the introduction of a proportional representation youth quota listed by alternative gender.
There is also the creation of the constitutional office of Public Protector, who will have some similar functions of other commissions, such as the Zimbabwe Human Rights Commission. Add to this the removal of MPs from Provincial Councils and the election of members of the latter by way of party lists based on proportional representation.
In summary, these are most of the key amendments being proposed barring any new changes from the Senate or a return of the bill from the president. (A full version of them can be found here)
Through the political lens
There are however three key political aspects that need to be considered on the implications of this second amendment.
The first aspect, which is more a political-legal technicality, is that the ruling party is amending the Constitution because it is constitutionally allowed to do so, based on its parliamentary two thirds majority. Or, to put it rather crudely, it is amending the Constitution because the same Constitution allows it to do so.
The political inference of this is that the second amendment, as with the first, is a reflection of the electoral results of 2018, disputed as they were around the Presidential vote count and less around the Parliamentary result that resulted in this two-thirds majority.
In this, arguments around questions of legitimacy have no immediate impact on what Parliament can or cannot do.
And while this is difficult for many to fathom, the political reality is that the constitution is operational both in relation to its technical aspects and also the political intentions of the ruling party, all until 2023. And the key word here is ‘incrementalism’, within the ambit of what the constitution permits. Warts and all.
The second aspect relates to the introduction of a youth and the extension of the women’s quota, as well as the introduction of a proportional representation system to the election of provincial and metropolitan councils.
The political meaning of this is that it is the most organised political party that will win the next harmonised general election in 2023. It’s like quite literally asking aspiring politicians to “do the math”. Those parties that can field candidates for both directly elected and proportional representation seats are the ones that are likely to do well electorally. This includes probably wining the most coveted position of the executive Presidency.
And, it would appear, the ruling party is well aware of the political factionalism that comes with fewer posts and this strategy ensures fewer of its internal leaders do not have elected posts. Given what happened in 2018, I am not so sure our opposition parties have as comparable an understanding of the same.
In the third and final instance, there has been some debate about the consolidation of executive power by President Emmerson Mnangagwa, especially because the amendment does away with running mates, or where it gives him great control of the promotion or retirement of judges.
This is an understandable argument in not only anticipating assumptions of the compromising of judicial independence by the executive, but also assuming the next election will again be disputed., and that it will again require the intervention of the Constitutional Court.
This means it is as much about democratic principle as it is about political assumptions and expectations.
In conclusion, what has become clear is that the new Constitution was not designed to either oversee a societal revolution or have a fundamentally sacrosanct status in Zimbabwean society. It remains functional at the whim of the institutions it created, and those that are in charge of them by way of electorally arrived at executive and Parliamentary authority.
In the current context, it remains a document that is intended to bring ambiguous incremental change at the whim of those that are legally in charge of its implementation.
*Takura writes here in his personal capacity (takura-zhangazha.blogspot.com)