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Executive Powers Part II - Constitution Watch 3/2011
Veritas
May 17, 2011

Introduction

In the first Part of this Constitution Watch we set out the powers that can be exercised by the Executive and explained the need for restraints to be imposed on those powers. In this Part we shall go on to examine the restraints that may be imposed on some of the powers to prevent their use for partisan political purposes, and shall suggest that some of the powers should be abolished altogether.

Restrictions on the Nature and Extent of Executive Powers

1. Power over the Legislature

Under this heading fall the President’s power to appoint members of the Senate and to summon, adjourn and dismiss Parliament.

(a) Power to appoint Senators

The President appoints five Senators directly and an additional 28 indirectly through his power to appoint Provincial Governors and chiefs (section 34 of the Constitution). Under article 20.1.9 of the Global Political Agreement (GPA) he can appoint an additional six Senators nominated by the MDC formations. Quite clearly this power violates the doctrine of separation of powers, which envisages an independent legislature. Under the new constitution all Senators (assuming there is a Senate) should be elected directly by the people or elected or appointed by interest groups who are not themselves part of the Executive.

(b) Power to summon, adjourn or dissolve Parliament

Under the present Constitution the President can summon, prorogue [i.e. stop Parliament sitting until he re-summons it], and dissolve Parliament [in which case there has to be a new election] at any time, though he must now get the Prime Minister’s consent before dissolving Parliament (sections 62 & 63 as read with article 20.1.3(q) of the GPA). The only limit which the Constitution places on these powers is to require Parliament to sit at least once every six months (section 62(2)).

We should give careful consideration to abolishing or severely restricting this power in the new Constitution. It limits Parliament’s independence, and has a chilling effect on freedom of debate because members may fear that if they discuss sensitive matters the Executive will respond by proroguing or dissolving Parliament.

In many countries, for example the United States and South Africa, the legislature is elected for a fixed term, and during its term can decide when and how often it sits. Even the United Kingdom, where our President’s current power originates, is reconsidering the right of the Executive to dissolve Parliament before its term has expired. We should reconsider it too.

2. Legislative power, namely the power to enact legislation

In Zimbabwe, the President and his Ministers have extensive legislative powers conferred on them by various Acts of Parliament. The most notorious of these Acts is the Presidential Powers (Temporary Measures) Act, which allows the President to make regulations on virtually any subject, if he thinks urgent action is needed in the general public interest. The only limits on his power are, firstly, that he must revoke his regulations if Parliament requires him to do so [it has never done this]; and, secondly, that the regulations expire after six months [though they can be replaced by similar ones].

The Presidential Powers (Temporary Measures) Act is not the only Act that gives extensive legislative powers to the President: some old statutes, particularly those inherited from the Federation of Rhodesia and Nyasaland, are almost as broad. The Control of Goods Act, for example, empowers the President to make regulations controlling the import, export, distribution, rationing, disposal, purchase and sale of goods, as well as the prices of goods and the charges for services relating to goods. So wide is the Act, that the President could, if he were so minded, use it to make regulations controlling the entire economy. Other statutes giving the President similarly broad powers are the Exchange Control Act, the Animal Health Act and the Plant Pests and Diseases Act.

Many Acts give Ministers wide powers to make regulations and statutory instruments. Perhaps the most notorious, because it is so far-reaching and vague, is the Indigenisation and Economic Empowerment Act, but there are others almost as wide.

All these statutes should be repealed or amended to reduce the Executive’s legislative powers, and the new Constitution should try so far as possible to prevent Parliament from delegating its legislative powers to members of the Executive. Any such delegation should extend no further than allowing Ministers to fill in details in Acts of Parliament, for example specifying forms to be used in applications, etc. In addition, the new constitution should require the President and Ministers to have wide consultation with interested parties before enacting regulations; at the very least this may improve the efficacy of their regulations.

3. Power over the Judiciary

(a) Power to appoint judicial officers

Appointment of judges - under section 84 of the present Constitution, the President appoints judges of the Supreme Court and the High Court after consultation with the Judicial Service Commission; he does not have to take the Commission’s advice, but if he goes against it the Senate must be informed [though the Senate cannot compel him to revoke appointments made contrary to the Commission’s recommendation]. Under section 92 of the Constitution judicial officers presiding over specialised courts such as the Administrative Court and the Labour Court are similarly appointed by the President after consultation with the Judicial Service Commission - though there is no provision for the Senate to be informed if the President goes against the Commission’s advice. Since the inception of the GPA, the President has, at least in theory, had to get the Prime Minister to agree to judicial appointments (article 20.1.3(p) of Schedule 8 to the Constitution). For all practical purposes the obligation to consult or agree is impossible to enforce.

Appointment of magistrates – magistrates, the workhorses of the judicial system, are appointed by the Judicial Service Commission under section 7 of the Magistrates Court Act.

The Judicial Service Commission itself is composed entirely of presidential appointees (see section 90 of the Constitution), though again, since the GPA came into force the President has had to get, again in theory, the Prime Minister’s approval for appointments to the Commission (article 20.1.3(n) of Schedule 8 to the Constitution).

It is therefore fair to say that all judicial officers in Zimbabwe owe their appointment, directly or indirectly, to the President. In view of this it is no surprise that the judiciary has been regarded as unduly submissive towards the Executive; the only surprise is that it ever showed any independence.

This is a most unsatisfactory position because an independent judiciary is one of the pillars of a free and democratic State. To ensure judicial independence, the new constitution must remove or dilute presidential involvement in the appointment of judicial officers and members of the Judicial Service Commission. This could be done by:

• requiring judges to be selected by the Judicial Service Commission through an open process involving the publication of clear guidelines for the selection of candidates and the ratification of appointments by Parliament;
• making an all-party committee of Parliament responsible for selecting all or most of the members of the Judicial Service Commission, again through an open process involving the publication of clear guidelines for selection.

And the current judges of the Supreme Court and the High Court should be required to go through the new selection process if they are to retain their posts after the new Constitution comes into force.

(b) Power to control judicial conduct

The present Constitution goes some way towards ensuring judicial independence, that is limiting the Executive’s influence over the way in which judicial officers decide cases. Section 79B states that members of the judiciary are not subject to anyone’s direction or control when exercising their judicial authority; section 86(3) states that a judge’s office cannot be abolished while he or she holds that office; and section 88(2) prohibits any reduction in judges’ salaries and allowances. While all these provisions should be repeated in the new Constitution, something more is needed, for the following reasons:

• Sections 79B, 86 and 88 apply only to judges, not to magistrates or to the judicial officers who preside over specialised courts such as the Administrative Court. The provisions should apply to all judicial officers.
• The provisions have not prevented the Executive from providing judges with farms expropriated from commercial farmers and with houses and television sets obtained through the Reserve Bank’s “quasi-fiscal activities”. Judges who have accepted these gifts cannot be expected to rule impartially on the Government’s land redistribution programme or the legality of the Reserve Bank’s “quasi-fiscal activities”. The new constitution should mandate Parliament or the Judicial Service Commission to prepare a code of conduct for judges and all other judicial officers, and to ensure that it is strictly enforced.
• There is nothing in the present Constitution that specifically requires the Executive to respect or enforce judgments and orders issued by the courts. As a result, the Executive has frequently ignored judgments given against it. The new constitution should contain provisions for Parliament to censure public officers who fail or refuse to comply with judgments, and perhaps should disqualify them from holding further public office.

4. Power to appoint Ministers, administrative officers and other members of the Executive

Under sections 31C and 31D of the present Constitution, the President appoints Vice-Presidents, Ministers and Deputy Ministers. His discretion in doing so has been recently limited by the GPA: vice-presidential appointments must be made from nominees of his own party, and ministerial and deputy ministerial posts are allocated between the parties to the GPA in accordance with Article 20.1.6 of that Agreement.

There is nothing wrong in principle with vesting the power to make these appointments in the President or whoever else is head of government under the new Constitution. The person in charge of the government must be able to appoint people to share political responsibility for running the country’s affairs. His or her discretion in making these appointments will always be limited or at least affected by political considerations, and it is debatable to what extent the Constitution should impose further limits. Under section 31E(2) of the present Constitution, Ministers must be Members of Parliament, and if they are not members when they are appointed they must somehow obtain a parliamentary seat within three months, so the President’s choice of Ministers is restricted to people who are or can become members of the Legislature and are answerable to the Legislature. The same position prevails in most of our neighbouring countries, though South Africa allows two Ministers to be appointed from outside Parliament, Botswana four. If our new constitution were to allow any Ministers to be appointed from outside the Legislature then it would be desirable for their appointment to be subject to approval by the Legislature. All Ministers even if they are not members of the legislature must have the right to speak in Parliament and must be available to answer questions in Parliament to ensure their accountability.

Under the present Constitution, administrative officers - i.e., members of the Public Service - are indirectly appointed by the President as their appointments are governed by an Act of Parliament, namely the Public Service Act, which confers the power of appointment on the Public Service Commission, which is itself appointed by the President [see below]. The Attorney-General and Permanent Secretaries, are appointed directly by the President after consultation with the Commission (sections 76 and 77 of the Constitution), though since the GPA, when appointing them the President is supposed to get the agreement of the Vice-Presidents, the Prime Minister and the Deputy Prime Ministers (Article 20.1.7 of Schedule 8 to the Constitution).

While there can be no objection to the President appointing politicians as Ministers to assist him in running the government, appointing members of the civil service is a very different matter. They are supposed to form the permanent administration of the country, and if the political head of government chooses them either directly or indirectly then political considerations will inevitably influence their appointment. Although suggestions have been made for provision of parliamentary oversight of senior appointments by requiring them to be ratified by Parliament, that also might introduce an undesirable political element into what should be a non-partisan process. Under the new constitution, the appointment of at least senior members of the civil service and in particular the Attorney-General and Permanent Secretaries should be made by an independent commission.

5. Power to appoint members of constitutional commissions

Under the present Constitution, the President appoints the members of all constitutional commissions. In appointing members to the service commissions - the commissions responsible for the security forces and the Public Service - he must act on the advice of his Cabinet and with the approval of the Prime Minister. When appointing members of the so-called independent commissions, namely the Electoral Commission, the Anti-Corruption Commission, the Media Commission and the Human Rights Commission, he is limited in his selection to nominees chosen by the parliamentary Standing Rules and Orders Committee - and now in theory he must also get the consent of the Cabinet and the Prime Minister to these appointments (Article 20.1.3(n), (o) & (p) of Schedule 8 to the Constitution).

Obviously, the new constitution must ensure that the members of all constitutional commissions are appointed through a process that enables the commissions to exercise their functions even-handedly and without partisan interference. The procedure currently applicable to the independent commissions should be extended to the service commissions. It could also be improved by involving the public more closely in the nomination process, for example by:

• publishing the criteria for selection of candidates for appointment, so that the public know, and can criticise, if necessary, the basis on which candidates will be considered;
• publishing lists of candidates for nomination, and inviting the public to comment on those candidates;
• selecting candidates through interviews conducted in public.

In addition, the selection of candidates should be put in the hands of a special parliamentary appointments committee rather than the Standing Rules and Orders Committee, as suggested in the NCA draft constitution and the model constitution produced by the Law Society.

6. Power to appoint ambassadors

Under section 78 of the present Constitution the President appoints ambassadors acting on the advice of his Cabinet, while under Article 20.1.7 of Schedule 8 to the Constitution he must get the agreement of his Vice-Presidents, the Prime Minister and the Deputy Prime Ministers to all such appointments.

Ambassadorial appointments fall somewhere between Ministerial appointments, which are essentially a political matter, and appointments to the civil service, which should be non-partisan. Ambassadors are supposed to represent the country as a whole, but must also be able to communicate the views of the government currently in power. Under the new Constitution, therefore, the head of government should continue to choose ambassadors, acting on the advice of his or her Cabinet, but the appointments should be subject to parliamentary approval.

7. Power over the Defence Forces and the Police Force

Under the present Constitution the President has considerable personal control over the security forces. He is the supreme commander of the Defence Forces (section 96(2)) and appoints their operational commanders after consultation with the Minister of Defence (section 96(4) of the Constitution as read with section 7 of the Defence Act). He appoints the Commissioner-General of Police after consultation with a board consisting of the chairperson of the Public Service Commission, the retiring Commissioner-General, and one permanent secretary (section 93(2) of the Constitution as read with section 5 of the Police Act). These powers of appointment have been reduced somewhat by the GPA: under Article 20.1.3(p) of Schedule 8 to the Constitution, the President must, again in theory, get the Prime Minister’s consent to “key appointments … under and in terms of the Constitution”, while under Article 20.1.7 he must get the consent, not only of the Prime Minister, but also of his Vice-Presidents and Deputy Prime Ministers when appointing people to “senior government positions”. It is not clear which of these two articles applies to appointments of members of the security forces, but either of them would, if put into practice, curtail the President’s discretion in making such appointments.

It is obviously undesirable for the head of government to have unrestricted control over the coercive forces of the State, whether through his power of appointment or though a power to deploy those forces. The new Constitution must ensure that:

• the commanders of the Defence Forces and the Police Force are appointed by an independent, impartial process similar to that outlined above for members of the civil service;
• there is civilian oversight over the deployment of the Defence Forces either inside or outside the country. This can be ensured by:
• prohibiting any deployment of the Defence Forces without the consent of the Cabinet as a whole, and
• requiring parliamentary ratification as soon as possible after the Defence Forces have been deployed.
• the conduct of the Police Force is likewise subject to civilian control, which can be ensured by:
• creating a Police Authority composed of members of Parliament and civil society, to give policy directives to the Commissioner-General of Police, and
• creating a Police Complaints Commission, to investigate complaints against the Police.

[The Constitution should at least mandate the establishment of these two bodies while leaving details of their composition and functions to be regulated by an Act of Parliament.]

And like the judges, senior officers of the security forces should be required to go through a new selection process if they are to retain their posts after the new constitution comes into force.

8. Miscellaneous powers

(a) The power to declare war and make peace

This power is specifically mentioned in the present Constitution (section 31(2)) and again in the GPA (Article 20.1.3(d)). It should not be mentioned in the new constitution because, as a member State of the United Nations, Zimbabwe has renounced the use of force. The South African constitution does not mention such a power, nor do the constitutions of Zambia or Botswana.

(b) Prerogative of mercy

Under section 31I of the present Constitution the President exercises the prerogative of mercy [i.e. the power to grant amnesties and pardons and to reduce sentences imposed by courts] and is supposed to do so on the advice of Cabinet. This means that political motives can influence its exercise - as undoubtedly they have done in the past. The new Constitution should limit the exercise of the prerogative of mercy to cases where an independent body has recommended it. Provisions for this independent body should be made in the Constitution with provision for an enabling Act to lay down guidelines for the exercise of the prerogative.

(c) Power to confer honours and precedence

As with the prerogative of mercy, this power should be exercised only on the recommendation of an independent body, again making provision for this body and for an enabling Act to lay down guidelines. Otherwise honours such as the conferring of National Hero status will continue to be awarded on a partisan basis.

Finally: one strong check on excesses by the executive is to oblige all public officers without exception to make a full, regular and public disclosure of their assets. This point will be reiterated in further Constitution Watches discussing the powers of the Legislature and the Judiciary.

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