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  • Appointment of governors - Constitutional or not? - Bill Watch 43/2010
    October 16, 2010

    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—

    (Section 115(2) and (3))



    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:

    • Zimbabwe National Security Council Amendment Bill [Electronic versions available: (1) Bill and (2) Zimbabwe National Security Council Act showing effect of proposed amendments]
    • Criminal Law Amendment (Protection of Power, Communication and Water Infrastructure) Bill [Electronic version of Bill available]
    • Attorney-General’s Office Bill

    Bill awaiting First Reading:

    • Energy Regulatory Authority Bill [Electronic version available]
    • Bills being printed [content not yet available]:
    • Deposit Protection Corporation Bill
    • General Laws Amendment Bill
    • Small Enterprises Development Corporation Amendment Bill

    Statutory Instruments and General Notices

    No statutory instruments of general interest were gazetted last week.

    Provincial Governors: General Notice 285/2010, gazetted on 15th October and headed “Re-appointment of Provincial Governors”, is the official notification of the President’s controversial appointment of ten provincial governors. The notice states that the President has “appointed” them as provincial governors “from the 26th of August, 2010 to the 31st of December 2011”. [Electronic version of GN 285 available.]

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