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Presidential power and Zimbabwe's draft Constitution
Derek Matyszak, Research and Advocacy Unit (RAU)
March 2013

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The position and powers of the President under the constitution have been a matter of some controversy since the introduction of an executive presidency by way of a constitutional amendment in 1987. It was a prominent issue in the constitutional referendum in 2000 (excessive presidential power has been cited as a key factor leading to the rejection of the proposed constitution in that referendum); it was a major sticking point in negotiations leading to the constitutional amendment (No. 19) which established the current Inclusive Government; and it was a focal point in negotiations around the present draft. The ZANU PF negotiators argued for a powerful executive presidency, while the MDC formations, though accepting an executive presidency, argued that Parliament ought to exercise some powers concurrently with the President to check and balance executive authority. As will be seen in the outline which follows, it is the ZANU PF approach which has largely prevailed.

The Post of President

a) Qualifications

The person occupying this post is the Head of State and Government and the Commander-in-Chief of the Defence Forces, and receives such salary, allowances, and pension as may be set by an Act of Parliament. To qualify as an aspirant to this position, a person must be a citizen of Zimbabwe by birth or descent, have attained the age of forty years, and be ordinarily resident in Zimbabwe. These provisions are repeated in the draft constitution and supplemented by two additional requirements. One is that the aspirant must be a registered voter; the other is that the prospective candidate must not have already held office as President under the constitution for two terms (section 91).

The question of term limits for state Presidents is controversial. On the one hand it is argued that term limits restrict democratic choice and may be against the clear wishes of an electorate which may want a highly popular and exceptionally competent President continue in office. On the other hand, proponents believe that the longer a person remains in office as president, the greater the danger that the incumbent will use the considerable powers vested in this post to entrench him or herself in the position through the development of a web of patronage and other abuses of power. The essence of the rule of law is that good governance is determined more by the constitutional machinery in place than the nature of the person who pulls the levers.

The draft constitution proposes term limits only for a person who has held office as president “under this constitution” for two terms. The reasoning behind term limits is unaffected by the constitution under which they are served. It is clear that the clause has been drafted specifically to allow the current president, Robert Mugabe, to stand in the next election, even though, having been head of state for over 30 years, the reasoning behind terms limits applies a fortiori to him. Since constitutions are usually intended to last for generations, it is generally considered to be unwise to craft a document around the needs of a specific individual. The explanation offered by the drafters is that Mugabe was accommodated because the law ought not to operate retroactively to exclude him from standing as president in the next election. However, this is to distort what is meant by the general rule against the retroactive operation of the law.

The rule against retroactivity is to prevent the application of a law to events that took place before the law was enacted. Hence the law would be retroactive in operation if the provision came into effect before the next election and Mugabe was asked to step down as president before that election because he does not meet the qualification requirements of a presidential candidate set by the new constitution, and is thus held (retroactively) disqualified as a candidate in the 2008 election. However, the proposed term limit provision would not retroactively affect Mugabe’s qualification as a candidate in the last election, and render his candidacy in 2008 invalid. The provision will only affect those seeking to stand for election as president in the next and future elections. There is nothing retroactive about a law which sets the qualifications for candidates in future elections, and laws setting new qualifications for people seeking to take up particular posts are validly and frequently enacted in all jurisdictions. Similar considerations apply to the proposal that a person should be disqualified from standing for election as president if over the age of 70. This suggestion likewise seems to have been excluded from the draft to accommodate Mugabe, again wrongly using the claim concerning retroactivity.

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