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The Legislature – Part I - Constitution Watch Content Series
October 15, 2011
branch of government is the branch of government which makes laws
for the country. A legislature embodies the idea that people are
the source of political power in the State and should control the
law-making process. It is an institution of representative democracy
under which the people elect representatives to act for them, as
opposed to direct democracy under which the people enact legislation
themselves through referendums or mass assemblies.
In this country
the legislative branch is constituted by Parliament,
which is divided into two separate chambers or houses, namely the
Senate and the House of Assembly. Zimbabwe therefore has a “bicameral”
or two-chamber legislature. This was not always the case. From 1923
until 1969 this country had a single-chamber (or “unicameral”)
legislature. Then in 1970 a Senate was established and legislative
power was divided, as now, between the Senate and the House of Assembly.
Zimbabwe continued to have a bicameral legislature until 1990, when
the Senate was abolished and a single-chamber Parliament was created.
In 2005 the Senate was re-established and our legislature has remained
Now that Zimbabwe
stands poised to draft a new constitution, the structure and functions
of the legislature, and its relationship with other branches of
government, must be considered afresh. This Constitution Watch looks
at issues facing the constitution-makers under the following headings:
1. Should the
legislature be unicameral or bicameral (i.e. should it consist of
one chamber or two)?
2. If there
are to be two chambers, what should their relationship be to each
3. As to the
membership of the legislature:
- Should all
the members be elected?
- Should members
of Executive (i.e. Ministers) be allowed to sit and vote in the
- If a member
leaves the party to which he or she belonged at the time of his
or her election, should that party have the right to have the
member’s seat declared vacant or can she or he “floor-cross”,
(i.e. join another party) or stay on as an independent. Or if
a member who won a seat as an independent joins a party, can he
or she remain an MP and represent that party, or should there
be a by-election so that the constituency can decide.
- What privileges
should members have?
4. As to legislation:
- Should legislation
passed by the legislature require the assent of the Head of State?
- Should the
procedure for passing legislation be laid down in the Constitution
or left to be worked out by the legislature in its standing orders?
5. What powers
should the legislature have over national finance?
6. Should the
Head of State have the power to dissolve or adjourn the legislature
and to fix the dates of its sessions?
will be dealt with in turn.
there be a Bicameral or Unicameral Legislature?
The answer to
this question depends on the answers to two subsidiary questions:
- Are there
interest groups who need to be represented in a separate chamber?
In Britain there
were historical reasons based on class stratification for having
two houses and Zimbabwe “inherited” the system, but
these reasons do not apply in Zimbabwe. But there may be interest
groups such as women, the chiefs, disabled persons, etc, who may
not get adequate representation in a directly elected single-chamber
Parliament. If they are to be given separate representation, then
procedures must be laid down carefully in the constitution and the
electoral law to ensure that the electoral or appointment processes
are fair and not dominated by the party in power. Alternatively
specific representation could be given to provinces in the Senate;
for example the US Senate has equal representation for all member
states and South Africa’s upper chamber is the National Council
- Would a
second chamber, i.e. a Senate, significantly improve the quality
The main justification
for a Senate which has been advanced in Zimbabwe is that it would
be composed of mature statesmen and women who would reconsider legislation
passed by the lower house and, where necessary, curb the excesses
of the people’s elected representatives. If that was the hope
of proponents of a Senate, they must have been disappointed. When
one compares legislation passed in the years when we had a Senate
with the legislation passed by a unicameral Parliament, one finds
no noticeable difference in quality. Most of the amendments the
Senate has made to legislation over the years have arisen from second
thoughts on the part of the Government rather than from initiatives
by senators. It has also been suggested that creating a Senate would
prevent the fast-tracking of legislation which makes Parliament
a rubber-stamp of the Executive, but the present Senate been has
not been able to achieve this.
the negligible advantages of having a Senate in Zimbabwe there is
a serious disadvantage: cost. The expense of having a second chamber
is considerable and the country can ill afford it. The only other
reason for a Senate –usually unspoken – is that it has
proved a convenient depository for political parties to reward their
members. This reason does not benefit the nation as a whole and
is no justification for a Senate.
therefore, it would be better for the country if the new constitution
provided for a unicameral legislature.
Between the Chambers of a Bicameral Legislature
If there is
to be a bicameral legislature, the new constitution will have to
regulate the relationship between the two chambers. The present
constitution does this. Generally, both chambers have equal law-making
power and all Bills must be passed by both chambers before they
can be sent to the President for assent and promulgation as Acts
of Parliament. But:
- The House
of Assembly has primary responsibility for initiating and passing
“money Bills”, i.e. Bills relating to taxation and
State revenues (para 6 of Schedule 4 to the Constitution).
The Senate cannot initiate such Bills and cannot amend them if
they have been initiated in the House of Assembly.
- If there
is disagreement between the Senate and the House of Assembly over
whether or not to pass a Bill or whether or not to amend it, the
Senate can delay the Bill for 90 days only. After that time, the
House of Assembly can resolve to overrule the Senate and send
the Bill to the President for assent (para 3 of Schedule 4).
- The House
of Assembly also has the ultimate say in whether Parliament will
accept Parliamentary Legal Committee adverse reports on statutory
If there is
to be a Senate in the new constitution, and if most of its members
are to be elected by ordinary voters, its legislative powers should
probably be equal to that of the lower House; in other words, it
should have the same power as the lower House to initiate, amend
and reject Bills, including money bills. Which brings one back to
the question – what is the point of having a Senate?
of the Legislature
Should all the
members be elected?
Ever since Independence
some members of the legislature have been appointed by the President:
- In the original
Lancaster House constitution, six senators were appointed by the
President on the advice of the Prime Minister (section 33(1)(d)
of the original Constitution), but there were no appointed members
of the House of Assembly.
- When the
Senate was abolished in 1989 by Constitution Amendment No. 9,
provision was made for the unicameral Parliament to have among
its members eight Provincial Governors appointed by the President
and an additional 12 presidential appointees
- Now that
the Senate has been reinstated, it contains 10 Provincial Governors
appointed by the President and five other appointed members (section
34(1)(b) & (e) of the Constitution as amended by Constitution
Amendment No. 18). In addition the GPA
has added further appointed members in the form of Vice-Presidents,
the Prime Minister, Deputy Prime Ministers and their proxies (article
20.1.8 of the GPA) and these additional appointees are spread
between the two Houses.
of members of the legislature by the President goes against the
doctrine of separation of powers, under which none of the three
branches of government should control or unduly influence the others.
In the new constitution, therefore, neither the President nor the
Prime Minister (if there is one) should have power to appoint members
of the legislature. All the members should be elected.
How they should
be elected will be dealt with in another Constitution Watch which
will consider electoral systems. One point should be made here,
however: if there is to be a Senate, there should be some differentiation
between the election of senators and the election of members of
the other chamber, otherwise the Senate will be a clone of the lower
chamber. This differentiation may be achieved in either of two ways:
- By making
the electorate different for senators and members of the other
chamber. For example, senators could be elected on a provincial
basis while members of the other chamber are elected on a constituency
basis. Alternatively, some senators could be elected by institutions
such as universities (which is the case in Ireland), professional
associations or other bodies representing important sectoral interests
such as women, chiefs, disabled, etc [see above].
- By providing
different electoral systems for the two chambers. For example,
senators might be elected on a proportional representation system
and members of the other chamber on a first-past-the-post basis.
members of the Executive be allowed to sit and vote in the legislature?
If the doctrine
of separation of powers were to be applied strictly, members of
the Executive (i.e. Ministers) should not be members of the legislature
and should not be allowed to take part in debates of the legislature.
The doctrine cannot be applied so strictly, however, because the
executive and legislative branches of government must co-operate
to some extent; the executive must have some way of ensuring that
its proposals for legislation are presented in the legislature.
It is also important for the legislature to be able to question
Ministers and hold them to account. Ways of achieving this vary
from country to country:
- In France,
Ministers are not members of the legislature but are entitled
to address the Senate and the National Assembly.
- In the United
States, Cabinet members are not members of Congress, but the Vice-President
is a non-voting president of the Senate, and the President is
entitled from time to time to address Congress on the state of
- In Britain,
all Ministers including the Prime Minister must be members of
one or other of the Houses of Parliament and the Executive effectively
controls parliamentary business.
follows the British model. No one can hold office as a Minister
for longer than three months unless he or she is a member of the
Senate or the House of Assembly (section 31E(2) of the Constitution)
and Ministers are entitled to take part in the debates of both chambers
(section 47). It is debatable whether the new constitution should
change this. It is noteworthy that none of the draft constitutions
that have been put forward to replace the present constitution –
the Constitutional Commission draft, the NCA
draft, the Kariba
draft or the Law
Society model constitution – seeks to change the position
therefore, the new constitution should probably preserve the current
position more or less unchanged: Ministers should be drawn wholly
or mainly from members of Parliament, and they should have the right
to take part in the debates in either chamber.
If this position
is unchanged under the new constitution, ways will have to be found
of counterbalancing the influence of the executive by enhancing
Parliament’s independence (perhaps by making it easier for
private members to introduce their own legislation and to alter
legislation sponsored by the executive).
continued in Part II
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