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Constitution of Zimbabwe Amendment (No. 19) Bill - MDC-T draft
November 24, 2008

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MEMORANDUM

This Bill is intended to give effect, from the MDC’s perspective, to the agreement signed by the three party leaders on the 11th September, 2008 — which differs in important respects from the agreement that was signed in public a few days later, on the 15th September. In this memorandum the agreement of the 11th September will be referred to as “the original inter-party agreement”, and that of the 15th September will be called “the publicly signed inter-party agreement”. Where there is no difference between the two versions, they will be referred to collectively as “the inter-party agreements”.

It should be noted at the outset that the Bill will insert a new Schedule into the Constitution, Schedule 8, which will deal with transitional matters and political aspects of the inter-party agreements such as the allocation of ministerial portfolios between the parties to the agreement. All the other clauses of the Bill must be read in the light of that Schedule.

The individual clauses of the Bill will have the following effect:

Clause 1
This gives the Bill a short title. There is no provision for a delayed date of commencement, so the Bill will come into operation on the date of its promulgation in the Gazette.

Clause 2
This clause will insert a new section in the Constitution which will create a board to deal with matters of citizenship and immigration. This will give effect to article 24.2 of the inter-party agreements, since the creation of such a board was dealt with in Chapter IV of the “Kariba draft” constitution.

Clause 3
The new section 9 which this clause will insert in the Constitution will limit the powers of Parliament, contained in the current section 9, to enact laws depriving citizens of their citizenship.

Clause 4
The new subsection which this clause will insert in section 18 of the Constitution will require public officers to observe the law and to uphold the rule of law. It will give effect to articles 11 and 13(2)(b) of the inter-party agreements.

Clause 5
The amendments which this clause will make to section 20 of the Constitution will strengthen the protection of freedom of expression, giving effect to articles 18(5)(a) and 19 of the inter-party agreements.

The amendment to section 20(1) will make it clear that interference with all forms of communication, not just written correspondence, is prohibited.

The new subsection (1a) will make express what is only implied at present, that freedom of expression includes press freedom and the right of the public to enjoy the benefits of free and diverse news media, together with a concomitant duty to tolerate diverse opinions.

Although existing State monopolies in telecommunications, broadcasting and television services have been found to be unconstitutional (Retrofit (Pvt) Ltd v PTC & Anor 1995 (2) ZLR 199 (S) and Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors 2003 (2) ZLR 236 (S)), section 20(2)(b)(iv) of the Constitution envisages that such monopolies may be created and regulated. Paragraph (c) of this clause will render unconstitutional any monopoly in these fields.

Paragraph (c) of the clause will also outlaw “hate speech”.

Clause 6
This clause will amend section 21 of the Constitution to give effect to articles 10 and 12 of the inter-party agreements.

The new section 21(1) differs from the existing provision in that it will make it clear that freedom of assembly and association includes the right to further the interests of a political party, trade union or other association.
The amendment to section 21(4) will give persons the right to assemble in streets so long as they do not hinder unreasonably the lawful passage of other persons or vehicles. At present that right is expressly excluded.

Clause 7
This clause will insert a new section 23A into the Declaration of Rights giving citizens the right to free, fair and regular elections and referendums, as well as the right to vote and to stand for elective office. The new section will reinforce the inter-party agreements by creating a culture of political participation which will allow the new democratic constitution to be properly debated.

Clause 8
Section 27 of the Constitution states that the President is Head of State, Head of Government and Commander-in-Chief of the Defence Forces. This clause will remove the reference to his role as Head of Government, since executive power will now be shared between the President, the Prime Minister, the Council of Ministers and the Cabinet (see the new section 31GA(1), inserted by clause 15).

Clause 9
The new section 31CA which this clause will insert in the Constitution will create the office of Prime Minister and indicate his responsibilities, in particular the key role he will play in the formulation of government policies.
The Prime Minister will be appointed in accordance with the inter-party agreement, which is set out as an appendix to the new Schedule 8.

The new section 31CB will give the Prime Minister power to designate a person to act in his place whenever he himself is outside the country or unable to exercise his functions. This provision will not apply if the Prime Minister resigns or vacates his office: in such an eventuality the President will have to appoint a new Prime Minister, acting on the advice of the MDC-T (see paragraph 7 of the new Schedule 8, to be inserted in the Constitution by clause 52).

Clause 10
The effect of the amendment made to section 31D of the Constitution by this clause is that, when appointing Ministers and Deputy Ministers and assigning functions to them, the President will have to act in accordance with the inter-party agreement.

Clause 11
This clause will replace section 31E of the Constitution with a new section dealing with the tenure of office of members of the Executive other than the President. This section, too, will have to be read in conjunction with Schedule 8.

Vice-Presidents, as at present, will hold office at the pleasure of the President, in consultation with (i.e. with the agreement of) the other parties to the Inter-party Agreement. The Prime Minister will retain office unless he resigns or unless a new President is elected after a general election. Deputy Prime Ministers, Ministers and Deputy Ministers may be dismissed by the President acting in consultation with (i.e. with the agreement of) the Prime Minister.

Whereas at present all members of the Executive, other than the President, have to be members of Parliament in order to retain office for more than three months, in future this will apply only to Ministers and Deputy Ministers; according to article 20.1.8 of the original inter-party agreement the Prime Minister and all Vice-Presidents and Deputy Prime Ministers will be ex officio members of Parliament, without having to be elected or appointed to either House.

Clause 12
The effect of this clause is that where Parliament has passed a vote of no confidence in the Government, the President will have to dissolve Parliament and call a general election to be held within two months after the dissolution of Parliament. He will no longer have the option of replacing his Ministers: he and all the members of Parliament will have to face a general election.

Clause 13
This clause will insert a new section in the Constitution creating a Council of Ministers, chaired by the Prime Minister, in accordance with article 20.1.5 of the inter-party agreements. Note that under the new section the Cabinet will be obliged to comply with directions given to it by the Council.

Clause 14
The new section 31G which this clause will insert in the Constitution will reconstitute the Cabinet, giving it the functions set out in article 20.1.2 of the inter-party agreements.

The Cabinet will be presided over by the President or, in his absence by the Prime Minister or, in the absence of either of them, by a Deputy Prime Minister.

Note that in addition to the President and the Prime Minister, all the Vice-Presidents, Deputy Prime Ministers and Ministers will be members of the Cabinet. The Attorney-General, however, will no longer be a member.

Clause 15
The new section 31GA will give effect to article 20.1.1 of the inter-party agreements, though it will also confer some additional executive authority on the Council of Ministers.

Clause 16
The new section 31H will give effect to article 20.1.3 of the inter-party agreements, setting out the President’s executive powers and how they may be exercised.

It should be noted that although this draft Bill will not repeal the President’s power to enact regulations under the Presidential Powers (Temporary Measures) Act (because the inter-party agreements do not provide for this) the President will not be able to enact such regulations without the approval of the Cabinet, so all parties represented in the inclusive government will play a part in deciding whether or not such regulations should be enacted.

Clause 17
This clause will make several changes to section 34 of the Constitution, which deals with the membership of the Senate.

In the first place, it will increase the number of appointed Senators from the existing five to eleven, in accordance with article 20.1.9 of the original inter-party agreement. The parties to which the new senatorial seats are allocated are indicated in Schedule 8.

Secondly, the clause will give effect to article 20.1.8 of the original inter-party agreement, which provides that if a Senator is appointed as Vice-President, Prime Minister or Deputy Prime Minister, the party of which he or she is a member has the right to nominate a non-constituency member of the Senate. Although the article does not say so expressly, the implication is that the Prime Minister and all Vice-Presidents and Deputy Prime Ministers cease to be voting Senators or members of Parliament but can sit and speak in either House.

Clause 18
This clause will give effect to article 20.1.8 of the original inter-party agreement, which provides that if a member of the House of Assembly is appointed as Vice-President, Prime Minister or Deputy Prime Minister, the party of which he or she is a member has the right to nominate a non-constituency member of the House.

Clause 19
The new sections 40C and 40D which this clause will insert in the Constitution will give effect to article 24.2 of the inter-party agreements by establishing the parliamentary Committee on Standing Rules and Orders and setting out its functions.

In regard to section 40C, note that the Committee’s membership will be composed of members of the House of Assembly and Senators, in the proportions 10:6. This is justified, first because the House of Assembly is twice the size of the Senate and, secondly, because the House has a greater role in the enactment of legislation than the Senate.

Clause 20
This clause is taken from clause 4 of the ZANU-PF draft, and will correct cross-references in section 41 of the Constitution.

Clause 21
This clause will amend section 47 of the Constitution to give the Prime Minister and each Deputy Prime Minister an automatic right to sit, speak and vote in both Houses of Parliament.

Clause 22
The amendment which this clause will make to section 57 of the Constitution is consequential on the amendments effected by clause 19.

Clause 23
The effect of this clause is that, in fixing the dates of elections, the President will have to consult the Prime Minister.
Clause 24 and Clauses 26 to 45.

These clauses will give effect to article 24.2 of the publicly-signed inter-party agreement, which states that the provisions in the “Kariba draft” constitution relating to Commissions should be incorporated into the Constitution, and article 20.1.3 (n), (o) and (p) of the same agreement, which require the President to consult the Prime Minister when making appointments to constitutional commissions and “key appointments”.

Effect is also given (in clauses 27 to 31, 35, 37, 39 and 41) to article 20.1.7 of the original inter-party agreement, which states that appointments to “senior government positions” must be made with the agreement of the President, the Vice-Presidents, the Prime Minister and the Deputy Prime Ministers.

Clause 25
This clause will amend section 63 of the Constitution so as to require the President to consult the Prime Minister before proroguing (i.e. adjourning) Parliament, and to consult all the parties to the inter-party agreement before dissolving Parliament.

Clause 46
The effect of this clause is to guarantee the independence of all constitutional commissions. The clause will give effect to article 13 of the inter-party agreements.

Clause 47
The new section 109A which this clause will insert in the Constitution will enjoin all public officers to be politically neutral when exercising their functions, thereby giving effect to article 13.1 of the inter-party agreements.

Clause 48
This clause will reinforce clause 47 by requiring traditional leaders to be politically neutral, thereby giving effect to article 14 of the inter-party agreements.

Clause 49
This clause will insert a new definition of “Committee on Standing Rules and Orders” into section 113 of the Constitution; the definition is a consequence of the new section 40C (as to which, see clause 19). The clause will also insert a definition of “Inter-party Agreement” and one of “Minister” to make it clear that, unless the context otherwise requires, the term does not include the Prime Minister or Deputy Prime Minister.

Clause 50
The effect of the new section 114(1b) which this clause will insert in the Constitution is that when the President is required to consult a person or authority before doing anything, he will have to secure the agreement of that person or authority. If he has to consult two such persons or authorities and they give him different advice, he will be allowed to choose which person’s advice to follow; if he has to consult three or more, he will be bound to accept the advice given by a majority of them. In all cases, however, the President and the persons he is consulting will be enjoined to try to agree on the action to be taken; this, it is to be hoped, will encourage co-operation between the different parties in the new government.

Clauses 51 and 52
These clauses will insert a new Schedule into the Constitution which will deal with transitional matters including the political arrangements necessary to give effect to the inter-party agreements.

Generally, the provisions of the Schedule are self-explanatory but the following points should be noted:

Paragraph 2: The numbers of Senators to be appointed will give effect to article 20.1.9 of the original inter-party agreement, not the significantly different article 20.1.7 of the publicly-signed agreement.

Paragraph 3: Article 21 of the inter-party agreements states that elections are divisive and confrontational; this paragraph will therefore obviate the need for by-elections during the first year of the Inclusive Government’s life.

Paragraph 4: For the same reason, this paragraph will bring an end to all election petitions brought to challenge results of the March 2008 general election.

Paragraph 10: This paragraph will set up a national security council to oversee the Defence Forces, the Police Force and the CIO.

Paragraph 11: This paragraph will require the Inclusive Government to implement the Inter-party Agreement.

Paragraph 12: This paragraph will give effect to the last paragraph of article 20.1.1 of the inter-party agreements.

Paragraph 13: The purpose of this paragraph is to ensure that citizenship matters can continue to be dealt with by the existing authorities until the new Citizenship and Immigration Board is established.

Per contra, paragraphs 14 and 15 will ensure that the existing Committee on Standing Rules and Orders is dissolved immediately the Bill is enacted, and that certain commissions are reconstituted with nominees put forward by the new committee.

Paragraph 16: This paragraph deals with the preparation of a new democratic constitution. The paragraph will give effect to article 6 of the inter-party agreements.

Paragraph 17: This is probably unnecessary, since the inter-party agreement (presumably the original one) is to be set out in an Appendix to the Schedule and hence courts will be able to take judicial notice of its terms. Nonetheless, there is no harm in making assurance double sure.

Fifth draft: 24th November, 2008
Fourth draft: 23rd November, 2008
Third draft: 19th November, 2008
Second draft: 19th October, 2008
First draft: 9th October, 2008

BILL
To amend the Constitution of Zimbabwe.

ENACTED by the President and the Parliament of Zimbabwe.

1 Short title
This Act may be cited as the Constitution of Zimbabwe Amendment (No. 19) Act, 2008.

2 New section inserted in Constitution

The Constitution of Zimbabwe (hereinafter called “the Constitution”) is amended by the insertion after section 7 of the following section—

8 Citizenship and Immigration Board
An Act of Parliament shall provide for the establishment of a Citizenship and Immigration Board consisting of a chairman and at least two other members, appointed by the President from a list of at least five names submitted by the Committee on Standing Rules and Orders, to be responsible for¾
(a) granting and revoking citizenship by registration;
(b) permitting persons, other than citizens, to reside and work in Zimbabwe, and fixing the terms and conditions under which they may so reside and work;
(c) exercising any other functions that may be conferred or imposed on the Board by or under an Act of Parliament.”.

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