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The Law Society's model Constitution - Constitution Watch 23/2010
November 06, 2010
On the 29th
October the Law
Society of Zimbabwe unveiled a model
constitution for Zimbabwe. The Society’s reason for
producing the draft was to guide the debate that is currently
being conducted by COPAC and to provide a further model on which
COPAC can base its own draft.
spent more than a year in preparing its draft, a process which
involved getting ideas from its members and from the public, and
consulting experts both inside and outside the country. Among
its clauses are some new ideas that could with advantage be incorporated
into a new Zimbabwean constitution. [Full text available on request]
of the Model Constitution
The Law Society’s
model constitution owes much to the South African constitution
[as does every other draft that has been produced in this country
since 1999] though there are many differences. Of particular note
are the following:
- 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.
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.
Declaration of Rights
of Rights will protect most internationally-recognised human rights,
socio-economic as well as civil and political, in particular the
- 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.
justice: decisions of public officers will have to be lawful,
rational, proportionate and procedurally fair and will be subject
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.]
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.
older people, women and disabled persons: these people will enjoy
- 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
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.
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.
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.
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.
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
There will be
a Parliamentary Appointments Committee to select candidates for
appointment to Commissions and other constitutional posts through
a public selection process.
elections, and elections to the office of Prime Minister, will take
place concurrently on dates fixed by an Independent Electoral Commission.
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
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 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.
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.
of Criminal Cases
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
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.
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.
to a Judicial Services Commission, a Public Service Commission and
a Security Services Commission, there will be several other independent
- 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
- 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.
and Local Government
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.
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.
institutions — urban and rural councils — will also
be recognised and given as much autonomy as is compatible with good
The Law Society’s
draft will not satisfy everyone, and there are points that are open
- 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.
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
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
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