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parliament re- open - Bill
August 15, 2008
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.]
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”.
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
- 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.
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.]
of continuing without a Parliament
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.
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.
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.]
re-opens before/without inter-party agreement
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:
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].
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.]
of power in House of Assembly
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.
PF Government without a majority in the Lower House
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  of the total membership  of
the Lower House would be needed and the combined MDC vote 
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.
PF would have a Senate majority
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.
succession by Parliamentary vote
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
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