The House
of Assembly sat on Tuesday and will sit again on Tuesday 19th
October
The Senate
sat on Tuesday and adjourned until Tuesday 9th November
Appointment
of Governors – Constitutional or Not?
In his statement
of 7th October rejecting the President’s appointments of
provincial governors, judges, ambassadors and other public office-holders
as unconstitutional and illegal, the Prime Minister said the President
had acted in breach of the GPA.
ZANU-PF party spokesman Rugare Gumbo dismissed the Prime Minister’s
reliance on the GPA, saying that the GPA did not affect the President’s
constitutional powers. The same line was followed in the State
media; for example, the Herald opined that the GPA “should
never be read in isolation as it is not, and can never supersede
the Constitution which grants President Mugabe the powers he exercises”.
In fact the
particular part of the GPA which the appointments breached is
now part of the Constitution. Constitution
Amendment No. 19 provided for the insertion of Article 20
of the GPA as an integral part of the Constitution. It also made
it clear beyond argument that during the life of the GPA, Article
20 prevails over other provisions of the Constitution. The mistaken
interpretation must come from the fact that prior to Constitution
Amendment No. 19 the Constitution did give the President the sweeping
powers still, incorrectly, claimed for him.
Here is what
the Constitution,
as amended by Constitution Amendment No. 19, has to say about
Article 20 of the GPA:
Inclusion
of Article 20 in Schedule 8 to Constitution
Constitution
Amendment No. 19 [section 15] inserted the text of Article 20
into the Constitution as Schedule 8:
“15
Insertion of Schedules 8 to Constitution
The Constitution
is amended by the insertion of the following Schedule after Schedule
7—
“SCHEDULE
8
(Section 115(2) and (3))
TRANSITIONAL
AMENDMENTS AND PROVISIONS
FRAMEWORK
FOR A NEW GOVERNMENT”.
The full text
of Article 20 - Framework for a New Government – of the
GPA is then set out. Article 20 is definitely part of the Constitution.
GPA Article
20 Supersedes Other Provisions of Constitution
The Constitution,
as amended by Constitution Amendment No. 19, also contains two
statements laying down the constitutional effect of Schedule 8
containing GPA Article 20:
Sections 115(2)
and (3) provide as follows:
“(2)
Schedule 8 shall have effect from the date of commencement of
the Constitution of Zimbabwe Amendment (No. 19) Act, 2008, and
continue in force during the subsistence of the Interparty Political
Agreement.
(3) The provisions
of this Constitution shall, for the period specified in subsection
(2), operate as amended or modified to the extent or in the manner
specified in Schedule 8”.
Schedule 8,
paragraph 1 reinforces the point:
“1.
For the avoidance of doubt, the following provisions of the Interparty
Political Agreement, being Article XX thereof, shall, during the
subsistence of the Interparty Political Agreement, prevail notwithstanding
anything to the contrary in the Constitution.”
Note: “Interparty
Political Agreement” is the term used in the Constitution
and Constitution Amendment No. 19 for what is almost invariably
referred to as the Global Political Agreement or GPA.
Lifespan
of the GPA
There seems
to be an incorrect widely held belief that the lifespan of the
GPA is two years from the formation of the Inclusive Government
in February 2009. In fact the GPA does not say how long it will
last. A lifespan of approximately two years has been widely assumed,
probably based on expectations at the time the GPA was concluded
and the original timetable for the completion of the constitution-making
process.
Call
for new Elections
According
to the current Constitution the next elections must be triggered
by dissolving Parliament. This is done by President by proclamation
in the Government Gazette. But as long as the GPA lasts, the President
cannot act alone; he must first obtain the Prime Minister’s
agreement. This follows from the Constitution Schedule 8, GPA
Article 20.1.3(q), which states that the President ”may,
acting in consultation with the Prime Minister, dissolve Parliament”,
and section 115 of the Constitution, which says that in Schedule
8 “in consultation” means “that the person required
to consult arrives at the decision after securing the agreement
or consent of the person so consulted”.
The President
has publicly stated that he wants the next elections to be no
later than the middle of 2011. The Prime Minister has talked in
more general terms about elections next year. They will need to
agree on the exact timing if the GPA is to be complied with –
unless the transitional mechanisms provisions of the new Constitution
make this unnecessary by spelling out a timetable for the elections.
Visit
by SA Facilitation Team
The three-member
South African facilitation team was in Harare last week and had
separate meetings with each of the three principals. The team
spokesperson said the visit was to check on progress made in fulfilling
the GPA since the SADC
Windhoek summit in mid-August, but declined to comment on
issues raised in the Prime Minister’s statement of 7th October.
Minister
of Finance Tendai Biti’s Court Case this Monday
The Supreme
Court on Monday 18th will hear an appeal by Finance Minister Tendai
Biti, in which he seeks to have his detention by police in June
2008 declared illegal. He was detained for several weeks, some
of the time held incommunicado in breach of the law. Charges were
eventually dropped before the case came to trial, but Mr Biti
sued in the High Court alleging illegal detention. Justice Kudya
dismissed the case and it is against his decision that Mr Biti
is now appealing.
In
Parliament Last Week
Both Houses
sat on Tuesday, both for less than twenty minutes.
Senate: No
provincial governors attended, so the anticipated MDC-T challenge
to their right to take their seats did not materialise.
House of Assembly:
Three Bills were presented, all of which had their First Readings
and were referred to the Parliamentary Legal Committee for consideration
of their constitutionality [summaries can be found in Bill Watch
39 of 4th October and Bill Watch 41 of 7th October]:
The House
of Assembly did not deal with the Committee Stage of this
Bill during its short sitting on Tuesday. It is now expected to
do so on Tuesday 19th October. There are three amendments on the
Order Paper, all to be proposed by the sponsor of the Bill, Mr
Gonese of MDC-T. The amendments are as follows:
Giving notice
of public gatherings: Clause 5 of the Bill states that the organiser
of a public gathering “shall endeavour” to give at
least four days’ notice of the gathering to the police and
also that the failure to give such notice does not render a gathering
unlawful. The proposed amendment would delete the word “endeavour”,
making organisers legally obliged to give notice; it would also
remove the statement about the effect of failure to give notice.
Comment: the amendments water down the effect of the amendment.
Magistrate’s
power to prohibit gatherings: Clause 7 of the Bill gives the local
magistrate, rather than – as at present – the police,
power to impose a one-month ban on public demonstrations within
a particular area. The proposed amendment would remove the magistrate’s
power to amend or revoke such a ban “for good cause”.
Comment: Although this amendment was apparently required by the
Parliamentary Legal Committee in order to avoid the Bill having
an adverse report, it is difficult to see how the power to amend
or revoke a ban would offend against any constitutional provision;
on the contrary, it seems a good idea for a magistrate to have
the power to lift or modify a ban should circumstances change.
Police duty
to provide written report when force used to disperse gathering:
This amendment proposes the insertion of a new section 30 into
POSA requiring a full written report by the senior police officer
present whenever force is used to disperse a gathering. The report
would have to be forwarded without delay to the Minister of Home
Affairs and to the convenor of the gathering. Note: This amendment
was put forward at a public hearing on the Bill held by the Portfolio
Committee on Defence and Home Affairs; it was included in the
Committee’s report.
Update
on Bills
Bill awaiting
Committee Stage: POSA Amendment Bill [see above]
Bills Awaiting
PLC Report:
