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Executive Powers Part III - Constitution Watch Content Series 4/2011
Veritas
May 20, 2011

Introduction

In Part I 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 Part II we dealt with restrictions on the nature and extent of those powers. In this Part we shall examine the restraints on those powers that may be directed specifically at the persons who constitute the Executive.

Restraints on the Persons who constitute the Executive

1. Elections

Regular, free and fair elections make President and Ministers accountable to the electorate and constitute the most important check on their conduct. Politicians who know that within five years or less they will have to account to the people for what they have done will tend to moderate their excesses. Elections are an essential component of democracy and that is why section 23A of our Constitution, taken from the South African constitution, makes the right to participate in free, fair and regular elections a fundamental human right. Nevertheless, elections are not in themselves an adequate safeguard against dictatorship, the perpetuation of a political elite or corruption:

• Electoral procedures are easily manipulated. Voters’ rolls, for example, can be filled with the names of fictitious or deceased people so as to facilitate vote-rigging. State resources can be used to ensure the return of a incumbent President and ruling party.
  
• For an election to be free and fair, the political atmosphere must be conducive to participatory democracy. Hence there must be freedom of conscience, so that people are not persecuted for their beliefs; there must also be freedom of speech and freedom of association, sufficient to allow opposing views to be given a full hearing and for opposition parties to flourish. To the extent that the law restricts these freedoms (for example, to prevent defamation, obstruction of the streets and armed insurrection) the law must be moderate and clear so that everyone knows precisely what they can and cannot do. In brief, there must be tolerance for the views and attitudes of other people, and an acceptance that the incumbent President and party can lose an election and opposition candidates can be returned and take over the reins of government.

In the absence of a tolerant political atmosphere, elections will do little to curb the excesses of the Executive.

2. Term-limits

Restricting the number of times a person may hold a particular post is another important check on the exercise of Executive power, and this has been recognised since the days of ancient Rome. If politicians know that their time in office will come to an end within a relatively short period, they are more likely to moderate their conduct so as to avoid retribution when they cease to hold office.

Because term-limits are so effective in curbing one-man rule, rulers have frequently tried to abolish them. In the SADC region, Zambia’s President Chiluba tried unsuccessfully to abolish presidential term-limits in 2001, while President Museveni of Uganda succeeded in having the constitutional limits to his term of office removed before the 2006 elections.

To be truly effective, therefore, term-limits must be firmly entrenched in the Constitution. [It should be noted that, strictly speaking, term-limits are undemocratic in that they prevent voters from re-electing a person whom they wish to continue in office. While this may be true, the beneficial effects of term-limits in preventing permanent one-man rule and moderating the conduct of rulers while they are in power far outweigh any technical quibbles about their democratic nature.]

3. Diffusing Executive power

Many of Zimbabwe’s problems have stemmed from the concentration of Executive power in the hands of one person. Although section 31H(5) of the Constitution requires the President to carry out most of his functions in accordance with the advice of a Cabinet of Ministers (and, since the inception of the Inclusive Government, in some cases with the consent of the Prime Minister) in practice he has tended to make most decisions himself. Some of the reasons for this are:

• The President appoints Cabinet Ministers, and he does so without having to take advice from anyone (though under the GPA Ministers appointed from the two formations of the MDC are nominated by those formations). Ministers therefore owe their appointment and political futures to the President and are naturally reluctant to cross him.
• By virtue of a dubious convention, Cabinet’s advice is officially conveyed to the President through documents that are signed by only two Ministers, and the advice is presumed to be that of the Cabinet. There seem to be no safeguards to ensure that the documents do indeed reflect the decision of the whole Cabinet, nor is there provision for the Cabinet to ratify advice given in the documents. As a result, it is possible for the President to by-pass his Cabinet.
• The President heads a former liberation movement with a limited tolerance for internal dissent. Power within the party is wielded by the President and a circle of close associates chosen by himself. Ministers who are appointed from such a party are unlikely to risk their careers by resisting the President’s ideas.

A new constitution must try to diffuse Executive power by requiring Executive decisions to be taken collectively rather than by a single individual. Some ways in which this might be done are the following:

1. Increasing the powers of the Cabinet: This can be done by reducing the President’s ability to act unilaterally, i.e. by reducing the number of decisions that the President can make on his own initiative. For example, the power to dissolve or prorogue Parliament, if it is to be vested in the Executive at all, should not be given to the President alone. He should have to do so on the recommendation of Cabinet. Parliament should be elected for a fixed term, as in the United States, and should be able to fix its own sitting periods during that term.

2. Ensuring that Cabinet decisions are really made by the Cabinet: The convention mentioned above, whereby Cabinet decisions are conveyed to the President by documents signed by two Ministers, should be scrapped. A transparent procedure should be evolved for transmitting Cabinet’s decisions to the President, and for reporting back to Cabinet how and when the decisions were transmitted to the President and the action he has taken on them. The new constitution should forbid the President from acting without the authority of the full Cabinet. If the Cabinet is to be allowed to delegate its advisory function to any of its individual members, the circumstances in which it may do so should be spelled out in the Constitution and any such delegation should be reported to Parliament.

3. The size of the Cabinet should be limited by the Constitution: It may seem paradoxical to suggest reducing the size of the Cabinet in order to make Executive decisions more collective, but if the Cabinet were reduced to, say, ten members it would be a more efficient decision-making body than Zimbabwe’s present large unwieldy Cabinet. A smaller Cabinet would be able to reach decisions promptly and ensure that its decisions were carried out; in brief, it would be more businesslike. It would not be easy for the President to circumvent such a Cabinet. It would also be less easy for the President to establish a “kitchen cabinet” or “inner cabinet” of a few trusted Ministers and advisers, to make decisions which should properly be made by the full Cabinet.

4. Executive powers should be divided between different people: Rather than vesting all Executive power in one person, even if that person has to act on the advice of a body such as the Cabinet, it would be better to divide Executive powers between, say, a President and a Prime Minister. This, at least nominally, is the position in Zimbabwe under the GPA but the division of powers is so vaguely expressed as to be meaningless (the GPA simply says that both the President and the Prime Minister “exercise executive authority”). Creating two or more centres of Executive power would prevent a concentration of power in the hands of one person. The French Constitution, for example, divides power between the President of the Republic and the Prime Minister. There are at least two ways in which this could be done in Zimbabwe:

• The President could be given limited powers to be exercised on his or her own initiative, for example the power to dissolve Parliament, call a general election and choose a Prime Minister. The other functions, for example the selection of Ministers and the right to preside over Cabinet meetings, would be conferred on the Prime Minister.
• Responsibility for the Defence Forces and the Police could be given to an independent Defence Service Commission and Police Service Commission established by the constitution.

3. Subordinating the Executive to the Legislature

In the original Lancaster House constitution, Executive power was vested in the Prime Minister, who was a member of the House of Assembly chosen by the President as the person best able to command a majority in the House - usually the leader of the majority party in the House. The President himself was elected by Parliament. This arrangement went some way to ensure that the Executive was answerable to Parliament because neither President nor Prime Minister had an independent mandate from the people.

The South African constitution has a variant of this idea. The State President, who is an executive President, is elected by Parliament so he too does not have an independent mandate from the people.

Both these arrangements give Parliament, at least nominally, the ability to rein in the Executive, but they need to be backed up by further procedures (such as impeachment against individual members of the executive and votes of no confidence in the Government) if Parliament is to be truly able to curb Executive power.

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