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Executive Powers Part IV - Constitution Watch Content Series 5/2011
May 20, 2011
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.
on the way in which Executive powers are exercised
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.
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.
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.
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.
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.
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
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