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Executive Powers Part III - Constitution Watch Content Series 4/2011
May 20, 2011
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
on the Persons who constitute the Executive
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:
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.
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.
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
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.]
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:
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.
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.
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.
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.
for the Defence Forces and the Police could be given to an independent
Defence Service Commission and Police Service Commission established
by the constitution.
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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