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Executive Powers Part I - Constitution Watch 2/2011
Veritas
May 17, 2011

Introduction

In an earlier Constitution Watch we outlined the doctrine of separation of powers between the three branches of government, namely the Executive, the Legislature and the Judiciary. We noted that although the doctrine shows how important it is for the three branches to be autonomous, it does not deal with the nature and extent of the powers that each of those branches should exercise within their own spheres. In this and subsequent Constitution Watches we shall deal with the powers of the individual branches, starting with those of the Executive.

The Executive, which is the branch of government headed by the President, is currently the most powerful of the three branches. The President and his Ministers control the Defence Forces, the Police and the civil administration; they represent the country in its dealings with foreign governments; and generally they are responsible for running the day-to-day affairs of the country. The Executive is the branch of government which impinges most frequently on the lives of ordinary people.

What are the Powers of the Executive?

Under the present Zimbabwean Constitution, the Executive’s powers can be grouped roughly into the following categories:

• Power over the Legislature, namely the power to summon, adjourn and dissolve Parliament, and the power to appoint members of Parliament.
• Power over the Judiciary, namely the power to appoint judges and other members of the judiciary.
• Power to appoint members of the Executive, namely Cabinet Ministers and administrative officers such as public servants.
• Power to appoint ambassadors and members of constitutional Commissions.
• Power over the security forces, namely the Defence Forces and the Police.
• Legislative power, namely the power to enact legislation.
• Power to declare war and make peace
• Miscellaneous powers, such as the exercise of the prerogative of mercy and the power to confer honours and precedence.

In addition to the specific powers mentioned in the Constitution, the President is vested generally with “the executive authority of Zimbabwe” by section 31H(1). This seems to give him power, through his Ministers, to run the general administration of the country.

The Global Political Agreement [GPA] has not altered the nature of these powers, though it has made some changes to the persons who can exercise them [i.e. the President or Prime Minister or the Cabinet] and the way in which they are exercised [i.e. with or without consultation].

Need for restraints on Executive’s powers

The fundamental issue facing the Constitution Select Committee [COPAC] in its preparation of a new constitution for Zimbabwe is how to limit the powers of the Executive so as to create a real democracy with a proper balance between the three branches of government, while at the same time ensuring that the country is run efficiently. The question of who should be vested with executive powers - President or Prime Minister - though an important one, is not so crucial.

If there are too few limits or safeguards on the exercise of executive power then the country may develop into a dictatorship, whether the power is exercised by a President or a Prime Minister; too many restrictions, on the other hand, may lead to governmental paralysis and anarchy.

It is obvious, particularly in the light of Zimbabwe’s history, that constitutional restraints must be imposed on the powers of the Executive, whether those powers are exercised by a President, a Prime Minister or a Cabinet of Ministers. The reason is clear: power tends to corrupt, and absolute power corrupts absolutely. The fewer restraints there are on Executive powers, the more likely it is that those powers will be exercised corruptly or in such a way as to violate peoples’ rights, and the more likely it is that the Executive will try to extend its powers unlawfully.

On the other hand, it is unwise to restrain the Executive too much. The Executive must be able to govern the country, which means not only managing its day-to-day affairs but also coping with crises when they occur. The Executive must be able to act promptly and effectively in a crisis, though not necessarily unilaterally or in such a way as to violate peoples’ fundamental rights and freedoms. Crises have overwhelmed even old-established democracies such as France: in 1958 the French Fourth Republic proved incapable of dealing with the Algerian war and had to give way to General de Gaulle and the current Fifth Republic. Crises are particularly dangerous for a young democracy such as Zimbabwe, and the institutions of State must be strong enough to overcome them.

Where the constitution requires the Executive to co-operate with other branches of government, it should contain provisions that facilitate such co-operation in order to avoid the governmental paralysis or gridlock that has occurred recently in the United States, where President and Congress cannot agree on a budget to deal with the financial crisis of 2008.

So a balance must be struck between an Executive whose powers are limited to prevent it evolving into a dictatorship and one which has enough power to govern effectively.

Nature of restraints needed

What sort of restraints should the new constitution impose on the Executive, to give Zimbabwe an effective government while preserving democracy, separation of powers and the rule of law?

There are several possible restraints, which may be grouped very roughly under three broad headings:

• Restraints on the nature of the powers that may be exercised by the Executive.
• Restraints directed at the persons who exercise Executive powers.
• Restraints directed at the way in which Executive powers are exercised.

We shall deal with each of these topics in turn in Part II, Part III and Part IV of Executive Powers

Constitution Watch 4/2009 of 27th June 2009 outlined the President’s powers in the Kariba draft constitution. Soft copies of the Kariba draft constitution are available on request. Soft copies of the NCA draft constitution and the Law Society model constitution in which the powers are much less extensive are also available on request. Please send requests to veritas@yoafrica.com

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