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Presidential powers in the "Kariba Draft Constitution" - Constitution Watch 4
Veritas
June 27, 2009

Background

On 30 September 2007 at Kariba, the Minister of Justice and the Secretaries-General of the two MDC formations agreed upon a draft Constitution to replace the present Constitution of Zimbabwe. The draft, which is known as the Kariba Draft, was the culmination of secret negotiations between the parties sponsored by the then President of South Africa, Mr Mbeki. The draft was never implemented but in Article 6 of the Inter-party Political Agreement [IPA], which deals with the constitution-making process, the parties “acknowledged” it and it was an annexure to the IPA.

MDC-T Minister of Constitutional and Parliamentary Affairs Eric Mr Matinenga has said that the Kariba Draft is one of several draft constitutions that will be made available for reference, but he also said “Nobody owns the Kariba Draft and it is where it belongs – Kariba". At its extraordinary National Executive meeting on Tuesday, the MDC resolved "to reject any attempts to have the Kariba draft, one of many drafts available, adopted as the Alpha and Omega of the constitution-making process".

Mr Mugabe has insisted that the Kariba Draft should form the basis on which the new constitution is drafted and it was reported this week in the Independent that “the Zanu PF politburo recently tasked Minister of Women’s Affairs Olivia Muchena to go to the Parliamentary Select Committee to enforce the Kariba draft as the reference document”.

MDC-M are sticking to the principle that the parties to the IPA agreed that the Kariba Draft would be the working document that would be put to the people.

Basis of Kariba Draft

Although the Kariba Draft is to some extent based on the Government Constitutional Commission Draft Constitution, which was rejected in a Referendum held in 2000, it gives the President more powers than this rejected Government Draft did. It was very largely because of the excessive Presidential powers in the present Constitution that there was a popular drive for a new constitution culminating in the National Constitutional Assembly [NCA]’s proposed Constitution in 1999. The NCA process stimulated the Government into setting up its own parallel constitution-making process. The Government Commission’s Draft was rejected in the 2000 Referendum, largely because (a) it was mistrusted as emerging from a government driven process and (b) it did not reduce the President’s powers sufficiently. It is going backwards to base the present constitution-making process on the Kariba Draft, which embodies fewer democratic principles than the rejected Government Draft Constitution.

The Presidency

There is to be an executive President, as at present, elected in a country-wide election. A President will be limited to two five-year terms, but tenure as President before the draft constitution comes into effect will not be counted, so Mr Mugabe will be eligible to continue in office for another 10 years.

There will be up to two Vice-Presidents appointed by the President, as under the present Constitution and they will hold office at the pleasure of the President. They will act for the President in his absence and in the event of his death or incapacity one of them will act as President for up to 90 days, whereupon both Houses of Parliament acting together will elect someone to be President until the end of the former President’s unexpired term of office.

The President will have extensive executive powers. Acting in his own discretion [i.e. without having to seek advice from anyone] he will be able to:

• prorogue [adjourn] and dissolve Parliament;
• appoint and dismiss Vice-Presidents, Ministers and Deputy Ministers and assign functions to them;
• appoint “other public officers”;
• appoint and receive diplomats, and conclude and execute treaties;
• call referendums; and
• deploy the armed forces outside Zimbabwe.

Everything else he will have to do on the advice of the Cabinet. [His powers under the rejected Government Constitutional Commission draft were more limited: acting in his own discretion under that draft he could only prorogue and dissolve Parliament and appoint a Prime Minister.]

The President’s power to declare a state of emergency is much the same as under the present Constitution, but it will last for only three months, as opposed to six months at present, before having to be renewed; and the President will have to get Parliament’s approval within 14 days. [Under the rejected Government Constitutional Commission draft the President had only 7 days to get approval.]

President Appoints Ministers, Deputy Ministers and Cabinet

As under the present Constitution, there will be Ministers and Deputy Ministers appointed by the President in his absolute discretion from members of Parliament. It may be noted that under the rejected Government Constitutional Commission draft Ministers were to be appointed on the advice of the Prime Minister and there were to be no Deputy Ministers. Again as at present, there will be no limit to the number of Ministers and Deputy Ministers that the President may appoint [though under the rejected Government Constitutional Commission Draft there were to be only 20 Ministers unless Parliament, by a two-thirds majority, agreed to more.] The office of Prime Minister [which would have been provided for under the rejected Government Constitutional Commission Draft] has no place in the Kariba draft. The Cabinet, as under the present Constitution, will be presided over by the President or a Vice-President [in the rejected Government Constitutional Commission Draft the Prime Minister would have presided.] [Note under the IPA and the present Constitution there is provision for a Prime Minister and for certain presidential decisions to be taken in agreement with the Prime Minister. This would obviously fall away if the Kariba Draft Constitution is adopted, as there would not be a Prime Minister.]

Presidential Powers vis a vis Parliament

The President will have to summon Parliament within 21 days after a general election, but apart from that, the position will be the same as under the present Constitution: the President will have power to summon, dissolve or prorogue Parliament.

Presidential Powers vis a vis Judges

The Chief Justice and the Deputy Chief Justice will be appointed by the President after consultation with the Judicial Service Commission; the President will appoint other judges from lists of nominees drawn up by the Commission. [Under the rejected Government Constitutional Commission Draft, the appointment of all judges would have been subject to approval by the Senate.] It should be noted, moreover, that in the Kariba Draft the Judicial Service Commission will consist almost entirely of presidential appointees: the Chief Justice, the Judge President, the Minister of Justice, the Attorney-General, a nominee of the Public Service Commission and six other members appointed by the President in his own discretion. [Under the rejected Government Constitutional Commission draft, the other members would have been appointed by the President on the advice of Cabinet and with the approval of the Senate.]

Presidential Powers vis a vis Attorney-General

The Attorney-General and Deputy Attorney-General are to be appointed by the President after consultation with the Judicial Service Commission, as under the present Constitution, and the Attorney-General will continue to be a non-voting member of the Cabinet and Parliament. [In the rejected Government Constitutional Commission draft, the Attorney-General would have been appointed on the advice of Cabinet and with the approval of the Senate.]

Presidential Powers vis a vis Service Commissions

The Public Service Commission will consist of a chairperson appointed by the President in his own discretion, and up to seven other members appointed by him with the approval of the Senate. [In the rejected Government Constitutional Commission draft, the appointment of all the members would have been on the advice of the Cabinet and would have required approval from the Senate.] The other service commissions — the Defence Forces, Police and Prison Service Commissions — will all consist of the chairperson of the Public Service Commission and other members appointed by the President in his discretion.

Presidential Powers vis a vis Security Forces

The officers commanding the Defence Forces, the Police Service and the Prison Service will all be appointed by the President in his own discretion, though in the case of the Commander of the Defence Forces he will have to consult the Defence Forces Service Commission and the Minister of Defence. The President will be able to deploy the Defence Forces outside Zimbabwe in his absolute discretion [at the moment he has to consult with Cabinet] but the deployment will be subject to later ratification by both Houses of Parliament.

Presidential Powers vis a vis Independent Commissions

The composition and functions of these Commissions — the Zimbabwe Electoral Commission, Human Rights Commission, Anti-Corruption Commission and Media Commission – will be the same as under the present Constitution, as amended by Constitution Amendment No. 19. It should be noted, though, that under the Kariba draft the chairpersons of the Electoral and Human Rights Commissions will be appointed by the President in his own discretion, after consultation with the Judicial Service Commission and the parliamentary Committee on Standing Rules and Orders. [In the rejected Government Constitutional Commission Draft, by contrast, all the members of the Commissions would have been appointed by the President on the advice of Cabinet and with the approval of the Senate, and the Media Commission would have been established under an Act of Parliament.]

[Rejected Government Constitution Commission Draft Constitution put to the Referendum in 2000 available on request]

The Kariba Draft and Dual Citizenship

Not related to Presidential powers, but of great interest – to those in the Diaspora in particular – is the question of dual citizenship. Again, the provisions relating to citizenship are essentially the same as those in the present Constitution. There is no provision permitting dual citizenship. As in the present constitution the question of dual citizenship is left to be regulated by the Citizenship Act, which at the moment forbids it.

*Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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