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Executive Powers Part IV - Constitution Watch Content Series 5/2011
Veritas
May 20, 2011

Introduction

In Part I of this series of Constitution Watches on Executive Powers, we set out the powers that can be exercised by the Executive and explained the need to restrain those powers. In Part II we dealt with restraints that can and should be imposed on the nature and extent of the powers. In Part III we dealt with restraints that can and should be imposed on the persons who exercise them. In this Part we shall go on to examine the restraints on the manner in which the powers are exercised.

Restraints on the way in which Executive powers are exercised

Although section 31H of the present Constitution states that the President has a duty to uphold the Constitution and the law, the Constitution does not develop this by specifying how the President should exercise his powers. Section 31K, indeed, provides that courts cannot enquire into the way in which the President has exercised his discretion, nor can they enquire into whether any advice was given to him. The new constitution should not contain a provision like section 31K. Executive decisions of Ministers, on the other hand, are generally subject to review by the courts and may be set aside if they contravene a statute or are grossly unreasonable or if the processes by which they have been arrived at are illegal or unfair.

Section 18(1a), which was inserted in the Constitution by Amendment No. 19, goes a little further by stating that “Every public officer [a term which includes the President and Ministers] has a duty towards every person in Zimbabwe to exercise his or her functions … in accordance with the law and to observe and uphold the rule of law.” This provision not only requires all public officers to observe the law, but seems to give all Zimbabweans a right to take legal action to ensure that they do so.

The new constitution should develop the idea behind section 18(1a) by specifying measures to ensure that all public officers observe the section and through which Zimbabweans can enforce their rights under the section. These could include the following (the first two are taken from the Law Society’s model constitution):

• A provision should be inserted in the Declaration of Rights guaranteeing Zimbabweans the right to administrative justice, including the right to be given reasons for all decisions affecting them, and requiring Parliament to enact a law that allows judicial review of all administrative decisions, including those made by the President.
• The mechanisms for enforcing the Declaration of Rights should be strengthened, by specifying that all courts (not just the Supreme Court or the Constitutional Court) may issue orders protecting fundamental rights and freedoms and extending the classes of people who may apply for such orders to cover associations acting in the interests of their members and people acting in the public interest.
• Decisions of all public bodies, including the Cabinet, and parastatals should be published subject to safeguards to protect national security. If public officers know their decisions will be published they may take more care to ensure that the decisions are lawful.
• Parliamentary control over public expenditure should be strengthened:
• All Government expenditure and revenue should be subject to scrutiny by the Public Accounts Committee of Parliament and should be audited by the Comptroller and Auditor-General. At present some funds of the President’s Office are not scrutinised or audited. Such lack of accountability encourages unlawfulness.
• Government officials who delay submitting their accounts to the Public Accounts Committee or who are responsible for over-expenditure by their Ministries should be subject to automatic disciplinary action and possible dismissal.
• Parliament’s power to impeach members of the Executive should be extended. Under sections 29 and 31F of the present Constitution it requires a two-thirds majority of both the Senate and the House of Assembly to impeach the President or to pass a vote of no confidence in the Government. The new constitution should allow Parliament, by a simple majority, to pass a vote of no confidence in individual Ministers and require the President or Prime Minister to replace the Minister concerned if such a vote is passed. The new constitution should also reduce the majority needed for a vote of no confidence in the Government - a government that can no longer command a majority in Parliament should not remain in office.

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