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sharing agreement and time frames - Bill watch 37/2008
September 22, 2008
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”.
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].
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.
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.
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
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
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
- 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.
- 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.]
- 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.
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:
- 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.
- 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.
of Parliament under the Power Sharing Agreement
to the composition of both Houses of Parliament, to be included
in the Constitution Amendment No. 19 Bill, are:
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].
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.]
the voting power as follows:
total 38 [ Present total 35, including 2 vacancies].
Governors 10 [presently all ZANU PF]
MDC-T 27 [presently
MDC-M 9 [presently
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.
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]:
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.
PF nor MDC have the two-thirds majority in each House necessary
for a Constitutional amendment without agreement.
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
: 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
- 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].
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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