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The Law Society's model Constitution - Constitution Watch 23/2010
Veritas
November 06, 2010

• an extensive and enforceable Declaration of Rights,
• the vesting of executive functions in an elected Prime Minister rather than in a President, and
• an extensive decentralisation of power to the provinces.

Main features

Fundamental Principles

Certain fundamental constitutional principles are laid down in the first clause, among them the supremacy of the Constitution and the rule of law; a multi-party democratic system; the equal and inherent dignity and worth of every human being without distinction; respect for human rights and due consideration for vested rights; and devolution of governmental functions and powers.

The Declaration of Rights

The Declaration of Rights will protect most internationally-recognised human rights, socio-economic as well as civil and political, in particular the following:

• Right to life: the death penalty will be abolished.
• Freedom of conscience, expression and the media: academic freedom and press freedom will be protected, as will the right of journalists to protect the confidentiality of their sources of information.
• Administrative justice: decisions of public officers will have to be lawful, rational, proportionate and procedurally fair and will be subject to review.
• Property rights: No one will be subjected to deprivation of property except in the public interest and subject to the payment of adequate compensation. [This, incidentally, will protect people resettled on farms that have been expropriated from their former owners in the past 10 years.]
• Environmental rights and rights to housing, education, health care, food and clean water: these social and economic rights will be protected, subject to the State’s ability to provide them.
• Children, older people, women and disabled persons: these people will enjoy particular protection.
• Rights of arrested and detained persons: as is to be expected in a draft produced by the Law Society, arrested and detained persons are given extensive protection. They will have a right to remain silent and to be informed of their rights.
• Rights of accused persons: again, the rights of these persons are given extensive protection. In particular, illegally-obtained evidence will be inadmissible against them [this is not the case in Zimbabwe today].
• Enforcement of the Declaration of Rights: Any court will have power to remedy breaches of the rights protected by the Declaration of Rights, and anyone will have a right to seek such a remedy.

The Legislature

Under the draft there will be a bicameral legislature consisting of a National Assembly and a Senate. Both will be elective bodies [there will be no appointed members] and in each House half the members will be elected on a constituency basis and half by a system of proportional representation. This will ensure close contact with local electorates and adequate representation of smaller parties.

Primary legislative power will vest in the National Assembly; the Senate will not have power to initiate legislation but will be confined to checking, scrutinising and amending Bills passed by the National Assembly.

Parliament will be elected for a fixed five-year term, and each House will determine when and for how long it sits. In this important respect, therefore, Parliament will be independent of the Executive.

Both Houses of Parliament will be obliged to conduct their business openly and to facilitate public involvement in their legislative processes. The enactment of subsidiary legislation – regulations, by-laws, etc. – will require appropriate consultation with interested parties.

There will be a Parliamentary Appointments Committee to select candidates for appointment to Commissions and other constitutional posts through a public selection process.

Elections

Parliamentary elections, and elections to the office of Prime Minister, will take place concurrently on dates fixed by an Independent Electoral Commission.

Constituencies will be delimited every 10 years by an ad hoc Delimitation Commission, not by the Independent Electoral Commission. Members of the Delimitation Commission will be appointed in the same way as members of the Electoral Commission.

The Executive

There will be a non-executive President who will be Head of State. He or she will be elected by Parliament for a maximum of two six-year terms. The President will have to act on the advice of the Prime Minister or the Cabinet when carrying out his or her functions.

The Prime Minister will be Head of Government, and he or she will be elected through a nation-wide ballot for a five-year term, though the National Assembly will have power to vote him or her out of office. There will be a maximum of 15 Ministers, who will be appointed by the Prime Minister, not the President, and will hold office at the absolute discretion of the Prime Minister.

The Courts

The draft constitution will establish three main courts: a Constitutional Court to decide constitutional cases, a Supreme Court to deal with general appeals, and a High Court to deal with cases at first instance; there will also be magistrates courts. Special courts such as the Labour Court and the Administrative Court will be incorporated into the High Court as specialised divisions. This represents a welcome and overdue rationalisation of Zimbabwe’s court system.

Judges will be appointed by the President on the advice of an independent Judicial Services Commission. In the case of the Chief Justice and other senior judges, however, the President will act on the advice of the Prime Minister in choosing from a list of candidates put forward by the Judicial Services Commission. The appointment of all judges will be subject to approval by the Senate.

Prosecution of Criminal Cases

The Attorney-General will be the Government’s chief legal adviser and, as at present, will attend Cabinet meetings but he or she will not be responsible for prosecuting criminal cases: that will be the function of an independent prosecutor-general.

The Legal Profession

As is to be expected in a draft put forward by the Law Society, the legal profession gets special mention and special protection. This is not just a case of the Law Society protecting its own, however: the legal profession plays a vital role in upholding human rights and preserving the constitutional order, and the protection given to the profession will enable it to carry out this role.

Security Services

The security services - the Defence Forces, the Police Service, the Prison Service and any intelligence services - will be subject to civilian, and particularly parliamentary, scrutiny and control. There will be a complaints mechanism for dealing with complaints of misconduct on the part of members of the security services.
The commanders of each service will be appointed by the President on the advice of an independent Security Services Commission, and their appointments will be subject to approval by the Senate.

Independent Commissions

In addition to a Judicial Services Commission, a Public Service Commission and a Security Services Commission, there will be several other independent commissions:

• an Independent Electoral Commission to conduct elections;
• a Human Rights Commission to foster human rights generally;
• a Gender and Anti-Discrimination Commission to ensure gender equality and prevent unlawful discrimination;
• a Truth, Justice, Reconciliation and Conflict Prevention Commission to provide remedies for victims of past human-rights abuses and to promote reconciliation;
• a Media Commission to protect media freedom and to encourage media practitioners to develop codes to regulate their conduct;
• a Land Commission to administer State land and to deal with resettlement and issues of land tenure;
• an Anti-Corruption Commission to deal with corruption in all spheres.

There will also be two other commissions which have not been suggested in any other draft constitution put forward in this country since 2000:

• a Financial and Fiscal Commission, to advise on the level of provincial taxation and on the division of revenues between central, provincial and local government bodies, and
• a Salaries and Remuneration Commission, which will have to be consulted on the levels of remuneration of all public officers and employees of provincial and local authorities.

Provincial and Local Government

As indicated earlier, there will be extensive devolution of power to the provinces, with each province having its own elected governor and legislature and its own public service and police service.

Provincial legislatures will have power to make laws for matters such as planning, tourism, education and health, in so far as they affect their provinces, and the draft deals with the resolution of conflicts between provincial and national legislation. Provinces will also be empowered to raise their own taxes.

Local government institutions — urban and rural councils — will also be recognised and given as much autonomy as is compatible with good governance.

Conclusion

The Law Society’s draft will not satisfy everyone, and there are points that are open to criticism:

• It is doubtful whether conferring all executive power on a Prime Minister, rather than on a President, will lead to a more balanced distribution of power within the Executive branch of government.
• On much the same point, the draft should perhaps have provided for the Prime Minister to be elected by Parliament, as is the case with the South African President, rather than at a nation-wide election. This would have given Parliament greater power over the Executive.
• If the Senate is to have no power to initiate legislation, one wonders whether it is worth having a Senate at all.
• The elaborate system of provincial governments set up in the draft may prove unduly expensive to maintain, and there is no guarantee that they will be more effective and less corrupt than the central government.

Despite these criticisms, the draft contains a great many provisions which, if properly implemented, will ensure the maintenance of human rights and the rule of law, and will help to heal the divisions of the past.
Overall the draft, while not perfect is certainly the best to have been produced so far compared to the present mutilated Lancaster House Constitution, the NCA draft, the Chidyausiku Commission draft and the “Kariba Draft”.

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