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Will parliament re- open - Bill Watch 32/08
Veritas
August 15, 2008

Bill Watch was delayed in the hopes of being able to send out details of what had been negotiated under the MoU between the main political parties. No overall agreement was reached and there has been no official release about whether any of agenda items on the MoU have been satisfactorily resolved. It is still uncertain whether there will be a Coalition Government/ Government of National Unity [GNU] or what form this would take. Dialogue is still continuing and the mediator Mr Mbeki will be reporting to the SADC Summit in Johannesburg, 16th and 17th August. [For those interested in the Kenya Model of a GNU we can supply the Kenyan National Accord and Reconciliation Act and the consequential Constitutional Amendment on request.]

Opening of Parliament
No date for the opening of Parliament has been announced. It was thought that the outcome of the current negotiations will dictate this date. Under the MoU Parliament can be convened only if all three parties consent. Nevertheless the state newspaper [14th Aug] has said that “the other two parties … would proceed with the formation of an inclusive Government and the convening of Parliament”.

Possibility of a two-party Coalition
Some press reports suggested that ZANU PF and MDC Mutambara may form a coalition government without the MDC T. This is an unlikely scenario as:

• as long as the Dialogue is acknowledged to be continuing, all three parties to the MoU have to consent to the outcome
• it is improbable that the elected House of Assembly or Senate representatives from MDC Mutambara would go along with this and vote with ZANU PF - the majority would be likely to vote with MDC T, so ZANU PF would still not have a majority in the House of Assembly
• if there was an agreement to add appointed seats to the Senate to accommodate both ZANU PF Ministers who lost their seats and the Mutambara executive who did not win seats in the recent election, there would have to be a Constitutional Amendment - and that needs a two-thirds majority of all the members in each House, which the two-party coalition would not have.

Floor crossing
If MDC Mutambara representatives to the House of Assembly leave their party, through which they were elected, and join ZANU PF or rejoin MDC T [or refuse to vote with their party leader and are subsequently expelled], there would probably have to be by-elections. [According to section 41(1)(e) of the Constitution, members of the House of Assembly automatically lose their seats if they cease to belong to the party they represented when elected, and that party notifies the Speaker in writing that they have ceased to represent its interests in Parliament.]

The same would apply to MDC T representatives who are disowned by their party. [A MDC T news release [14th Aug] has stated that ZANU PF government ministers and functionaries have approached an extensive number of MDC T members of parliament asking them to submit their CVs and asking them to be part of a Mugabe's government.]

Implications of continuing without a Parliament

Constitutional
The Constitution stipulates that the country should not be governed without a Parliament for more than 180 days [section 62]. We are well past this [the 180 days expired in mid-July]. Legally, the MoU does not override the Constitution – it is merely a contract between the political parties, which cannot contradict the supreme law of the land. On the other hand, a Parliament convened late will not on that account be an “illegal” Parliament.

Budget
The last Appropriation Act was passed by Parliament in December 2007. In view of current inflation an Appropriation (Supplementary) Act is now overdue, which presumably means that Ministries are being allocated supplementary funds not voted by Parliament. There is a constitutional provision allowing this for a limited period as long as any such expenditure is submitted to Parliament for confirmation by an Appropriation Act and is accounted for in accordance with that Act. This provision assumes no more that 180 days between Parliaments, which means the principle of a government having to get expenditure approved by Parliament is now being violated.

Vice-Presidents and Ministers
If we continue without Parliament being convened, the present Vice-Presidents and Ministers, including those now without seats in Parliament, can remain in government. As soon as Parliament meets, those still without seats will automatically lose their posts. [See Bill Watch 30 of 26th July.]

If Parliament re-opens before/without inter-party agreement
This would be in breach of the MoU unless agreed to by all parties, and might therefore lead to a total breakdown of the Dialogue. Apart from this there are other implications:

Appointment of Ministers
Once Parliament opens, Ministers who did not retain their Parliamentary seats would no longer be eligible to hold Ministerial office unless they are given one of the five appointed Senate seats. [See Bill Watch 30 of 26th July].

Election of speaker
ZANU-PF will not be able to impose a Speaker against the wishes of a combined MDC majority. A report in the Mail and Guardian stated that the election of the Speaker requires 106 affirmative votes in the House of Assembly [i.e., an absolute majority of the total membership of the House]. In fact, no such majority is required. A majority vote of those present and voting is sufficient, as long as there is a quorum [25 members]. [Constitution, sections 39, 54 and 56; House of Assembly Standing Order No. 3.]

Balance of power in House of Assembly
MDC T’s majority over ZANU-PF in the House is marginal [100-99]. Press reports have referred to the small MDC faction led by Mr Mutambara, with its 10 members, as having the capacity to tilt the balance of power in ZANU-PF's favour by using its 10 votes against MDC T. This would be true of a third party which was totally unaligned and willing to vote with either party, but not in this case, because most of the 10 members of the House elected on the MDC Mutambara ticket are committed to being in opposition to ZANU PF.

ZANU PF Government without a majority in the Lower House
If the MDC vote is combined against ZANU PF, then the Government would be a minority party in the Lower House. This would mean not only that Mr Mugabe’s government could not amend the Constitution, but also that it may not be able to get any legislation through Parliament. In which case, and in particular if the Lower House does not pass the Budget [Appropriation Act], the President may have no option, but to dissolve Parliament and call for new elections. Because of Constitutional Amendment No. 18 these would be harmonized elections - Presidential, Parliamentary and Local Government.

MDC T would not be able to force a vote of no confidence in the government, as a two-thirds majority [140] of the total membership [210] of the Lower House would be needed and the combined MDC vote [110] would fall far short of this. As regards “impeachment”, while 110 votes would be enough to commence an inquiry into the removal of the President from office, they would not be enough to guarantee passage of a resolution for removal [which would require a two-thirds majority of a joint sitting of the House of Assembly and the Senate].

MDC could introduce private members Bills and get them passed through the Lower House, but not having a majority in the Senate would mean that the Senate could delay these Bills.

ZANU PF would have a Senate majority
At the moment ZANU PF have 30 elected seats, MDC T have 24 and MDC Mutambara have 6. If Mr Mugabe appoints the 10 governors and the 5 appointed Senators from its own party and can sway the 18 chiefs, then ZANU PF would have a comfortable Senate majority. But the Lower House has the ultimate say over the passage of all legislation.

Presidential succession by Parliamentary vote
Under Constitution Amendment No. 18, if the President resigns or dies, a joint sitting of both houses of Parliament will choose [not by secret ballot] another President to hold office for the remainder of the five-year Presidential term. A ZANU PF government would hold a majority in a combined sitting of both houses. Out of a total of 303 members, 163 would probably vote ZANU PF and 140 would probably vote MDC. This would allow the ZANU PF to determine the succession of President.

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