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Power sharing agreement and time frames - Bill watch 37/2008
Veritas
September 22, 2008

A startling omission in the Power Sharing Agreement, considering the numerous delays and the hiatus in government after the March harmonised elections, is that there are no time frames or deadlines for implementation of the various provisions of the Agreement – with the exception of the time frame for a new Constitution – and even then the clock only starts running on “the inception of a new government”.

Delay in formation of new government

The Power Sharing Agreement provides for a Prime Minister [Mr. Tsvangirai] and two Deputy Prime Ministers [one from MDC-T and one from MDC-M] and specifies the numerical division between the three parties of 31 Ministerial posts [15 to ZANU-PF, 13 to MDC-T, 3 to MDC-M] and 15 Deputy Ministerial posts [8 to ZANU-PF, 6 to MDC-T, 1 to MDC-M].

Article 20.1.3(j) of the Agreement states that the President will appoint the Prime Minister "pending the enactment of the Constitution Amendment No. 19". But this has not been done.

The Agreement does not state which specific Ministries go to each of the parties. Last week the three Party principals failed to reach agreement on this issue and referred it back to the negotiating teams. On Friday Mr Mugabe left the country to attend the UN General Assembly session in New York, making it unlikely that any agreement will be reached this week on the distribution of Ministries. Even after agreement is reached there may be further delays while the parties finalise their lists of nominees for the posts eventually allocated to them.

The Minister of Justice, Legal and Parliamentary Affairs, has said that the new Government will not be formed until the Constitution Amendment No. 19 Bill has been enacted into law, which would mean the new Government may not be formed until some time in November. There is in fact no reason why other Ministerial and Deputy Ministerial appointments could not be made sooner in terms of the Constitution as it presently stands [it permits the President to appoint any number he considers appropriate]. And, Article 20.1.3(k) of the Agreement states that the President “formally appoints Deputy Prime Ministers, Ministers and Deputy Ministers in accordance with this agreement".

President Mbeki’s resignation

It is not clear yet exactly when President Mbeki’s impending resignation will take effect or how it will impact on the implementation of the Power Sharing Agreement and in particular whether it will cause further delays.

Constitution Amendment No. 19 Bill: (1) Procedure

Some of the provisions of the Power Sharing Agreement can be carried through without a Constitutional amendment but some do require amendment of the Constitution. The Agreement refers to a Constitution Amendment No. 19 Bill which would make these constitutional amendments, and pledges the unconditional support of the parties for its enactment [Article 24]. It is not clear if the Bill has already been drafted and approved by the three parties. Mr. Chinamasa has been reported as saying the Bill will be tabled when Parliament meets next month. There are, however, certain procedural requirements for a Constitutional Bill:-

1. A Constitutional Amendment must be gazetted 30 days before its introduction into Parliament [Constitution, section 52(2)]. This requirement cannot be waived by agreement between the parties or by resolution of Parliament. The Bill has not yet been gazetted, and even if it is gazetted this week, it cannot be introduced into Parliament until late October.
2. The Bill also has to be considered by the relevant Parliamentary Portfolio Committee. Under Parliamentary Standing Orders, as soon as a Bill has been gazetted, it stands referred to the Parliamentary Portfolio Committee [PPC] for consideration and report to the House concerned within 14 business days. The PPC has the power to call for and receive evidence from the public, and a Bill to amend the Constitution would normally be the subject of public hearings around the country - a time-consuming process. This requirement can, however, be waived by resolution of the House in which the Bill is introduced - and in the light of the Power Sharing Agreement this may well happen. [Note: no PPCs have yet been constituted, but that will presumably be done soon after the Houses resume sitting in October.]
3. Passage through Both Houses of Parliament: The normal procedure would require at least a week in each House, even if there was little debate. But if the Houses vote to suspend Standing Orders, the Bill could be “fast-tracked” through both Houses in four days. The Bill would then have to be printed in its final form and sent to the President for assent - and those steps could be completed within two or three days. The last step would be publication in the Gazette as an Act.

The shortest possible time frame in which the Bill could become law is early November - Bill gazetted: Friday 26th September; Introduced: Tuesday 28th October; Passed by House of Assembly: Wednesday 29th October; Passed by Senate: Friday 31st October; Assented to by President: Monday 3rd November; Act gazetted and into force: Tuesday 4th November.

Constitution Amendment No. 19 Bill: (2) Content

The Power Sharing Agreement states in Article 24 that the Bill must:

1. provide for constitutional formalisation of the Prime Minister’s powers and functions specified in the Agreement [in the meantime the PM could be appointed under the present Constitution and allocated his duties by the President]; the new Council of Ministers; changes in the composition of the Senate and the House of Assembly; and, any other constitutional changes necessitated by the Agreement.
2. include the provisions contained in Chapters 4 (Citizenship) and 13 (Independent Commissions) and section 121 (Parliamentary Committee on Standing Rules and Orders) of the Kariba Draft Constitution agreed to by the three Parties on 30 September 2007.

Composition of Parliament under the Power Sharing Agreement

The changes to the composition of both Houses of Parliament, to be included in the Constitution Amendment No. 19 Bill, are:

Senate: Article 20.1.7 provides for the present 93-member Senate to be expanded to 102 members, by the addition of 9 seats [3 per party] for Senators nominated by the parties and formally appointed by the President [these are in addition to the existing 5 appointed seats in the Senate, which are filled by the President].

[Note: there are still 2 vacant appointed seats and 3 vacant elected seats, caused by the election of the Senate President and the appointment of 2 Provincial Governors, but Article 21 of the Agreement states that there will be no by-elections for 12 months and existing vacancies in elected seats will be filled by the parties that gained the seats concerned in the 29th March election.]

This leaves the voting power as follows:

ZANU-PF New total 38 [ Present total 35, including 2 vacancies].

+ Provincial Governors 10 [presently all ZANU PF]

CHIEFS 18

MDC-T 27 [presently 24]

MDC-M 9 [presently 6]

Effect: ZANU-PF outnumbers the combined MDC by 48 to 36 which makes the chiefs’ vote a critical factor. [Traditionally the chiefs have voted ZANU PF but this may change.]

Note: the Agreement is curiously silent on the issue of the apportionment of Provincial Governorships. MDC has protested the appointment of 10 ZANU-PF Provincial Governors as a breach of the MoU. If some of these appointments are reversed in the spirit of power sharing, it would boost the MDC numbers in the Senate.

House of Assembly: Article 20.1.5 of the Agreement provides that three Ministers, one from each Party, may be appointed from outside the members of Parliament. They will be non-voting members of the House, so their presence will not affect the balance of power, which remains as follows [existing vacancies to be filled by nomination by the parties that gained the seats concerned in the 29th March election - Power Sharing Agreement, Article 21]:

MDC-T 100

MDC-M 10

ZANU-PF 99

Indep 1

Effect: the combined MDCs, voting together, have a majority over the rest [110 to 100] But if the MDCs are divided on a particular issue and MDC-M vote with ZANU-PF, MDC-T could be defeated.

Neither ZANU PF nor MDC have the two-thirds majority in each House necessary for a Constitutional amendment without agreement.

Balance of Power in Joint Sitting of both Houses: If Mr Mugabe were to resign, his successor would be elected by an electoral college consisting of members of the Senate and the House of Assembly sitting together [Constitution, section 28(3)(b)]. In a joint sitting ZANU-PF [assuming the support of the Provincial Governors and the Senator Chiefs] would have a majority over all the rest [165 to 147] - sufficient to elect Mr Mugabe's successor. [Note: voting in the electoral college would not be by secret ballot - Electoral Act, Fifth Schedule, paragraph 7.]

Parliament : Resumption of sittings

The Senate stands adjourned until 7th October, the House of Assembly until 14th October

As neither House will be able to commence consideration of the Constitution Amendment No. 19 Bill until late in October [see above], it is likely that the sittings will be devoted to:

• setting up Parliamentary committees
• the debate on Mr Mugabe's address at the ceremonial opening of Parliament on 26th August.

In theory other Bills could be dealt with, but no Bills have been gazetted and there has been no indication that any are ready for gazetting [Standing Orders require a Bill to be gazetted before introduction into Parliament].

Statutory instrument gazetted

There was a Gazette Extraordinary last week to publish a statutory instrument authorising the issue of the new $1 000 banknote by the Reserve Bank. The regular Friday Government Gazette was not released because of paper supply problems at the Government Printer.

No Bills were gazetted. All Acts previously passed have been gazetted

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