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The Legislature - Part II - Constitution Watch Content Series 9/2011
Veritas
October 18, 2011

Continued from Part I

3. Membership of the Legislature

What should happen if a member of Parliament leaves his or her party?

Under the British constitution, members of Parliament are free to “cross the floor”, that is to abandon their party and join another one without having to resign their parliamentary seats. Winston Churchill did it at least twice in his long career. The same applied in Zimbabwe until 1989, when the Constitution was amended to provide that if a member of Parliament leaves the party to which he or she belonged, the party can notify the Speaker or the President of the Senate, as appropriate, that the member no longer represents its interests, and the member then automatically loses his or her seat (section 41(1)(e) of the Constitution, as amended by Constitution Amendment No. 9).

There are arguments for and against the current Zimbabwean position:

• In Zimbabwe as in most modern democracies, members are elected on the basis that they belong to a particular political party. If one of them subsequently leaves his or her party, therefore, it may be dishonourable for him or her to remain in Parliament without going back to the electorate and seeking re-election under his or her new political affiliation.
• If members know they will have to vacate their seats if they leave their party, they will be less likely to abandon the party whenever the political wind changes. Party discipline is therefore strengthened, making it easier for government and party leaders to predict whether or not legislation will be passed by Parliament. If by contrast there is a weak party system, members of the legislature are more easily bribed with money or political advancement to vote against their parties. Weak parties may therefore encourage corruption in the legislature.

The contrary argument runs as follows:

• Members of the legislature are not elected to serve the interests of a particular political party, but to serve their country. They must be allowed to act according to their own good judgement and conscience and not according to the dictates of their party bosses.

None of these arguments can be regarded as conclusive, but it may be observed that the argument in favour of giving members freedom to vote according to their conscience assumes that politicians are all honest and upright and willing to follow their consciences.

What privileges or immunities should the legislature and its members have?

The privileges of a legislature are special rights that are conferred on the legislature as an institution and on its members individually, so that the legislature has the authority and independence to carry out its functions properly. Because these privileges are so important, some of them at least should be set out specifically in the constitution. Section 49 of the present Constitution merely allows an Act of Parliament to provide for the parliamentary privileges; in contrast, section 58 of the South African constitution mentions of some of them.

The most important privilege of the legislature as an institution is the power to compel officials to appear and give evidence before it and its committees. This privilege should be mentioned in the new constitution. The legislature should also have power to punish its members and other people for contempt, but its power should be limited to ensure that the punishments are reasonably moderate and that the range of conduct that constitutes contempt is not so great as to stifle legitimate criticism of the legislature and its members.

At present, the main privileges and immunities enjoyed by members of the Zimbabwean Parliament are:

• Freedom of speech and debate. This is a vital privilege because members must be free to engage in debate and raise matters in Parliament without fear that they will be arrested, prosecuted or sued civilly for what they say in Parliament.
• Exemption from attendance at court. This exemption extends only so far as to prevent members from being kept away from their parliamentary business by having to attend court proceedings.
• Immunity from arrest: This immunity, inherited from the British Parliament, applies only to civil arrest while Parliament is sitting. It does not apply to arrest for criminal offences. It does not therefore protect members from being arrested and detained on trumped-up charges. The French constitution, it may be noted, protects members of the legislature from being arrested for criminal offences without the authority of a committee of the legislature. Our new constitution should give the same protection.

These privileges are intended to facilitate the functioning of the legislature, not to benefit the members individually. The new constitution should mention them specifically.

4. Legislation

Assent by the Head of State

Under section 51 of the present Constitution, a Bill passed by the House of Assembly and the Senate must be assented to by the President before it is promulgated as an Act of Parliament. The President therefore takes part in the legislative process; indeed, the Zimbabwean legislature is defined as consisting of the President and Parliament (section 32(1)) and the preambles of all our Acts state that they are enacted by “the President and the Parliament of Zimbabwe”.

The involvement of the Head of State in the law-making process is a survival from the days when laws were made by kings. It may seem anomalous to continue the practice in a modern State, where political power is supposed to be vested in the people, but most States do so. Even the constitution of the United States, which famously begins with the words “We, the people” and which vests “all legislative powers” in a Senate and a House of Representatives, requires the President to approve all Bills before they are enacted.

None of the draft constitutions mentioned earlier - the Constitutional Commission draft, the NCA draft, the “Kariba draft” or the Law Society’s draft - alter the Head of State’s involvement in the making of legislation, and it is too well-entrenched for the new constitution to alter it. Strict time-limits must be imposed, however, on the Head of State’s consideration of a Bill before approving or disapproving, and in the event of the Head of State’s rejecting a Bill the legislature must have power to compel him or her to approve it. The President should not be allowed to “veto” legislation by delaying his assent.

Procedure for the passing of legislation

Schedule 4 to the present Constitution deals with the procedure which Parliament must follow in regard to the passing of legislation, but its main focus is the relationship between the Senate and the House of Assembly. The internal procedures of each House are left to standing orders made in terms of section 57 of the Constitution.

This pattern is followed in the draft constitution prepared by the Constitutional Commission in 2000 and in the “Kariba draft”. In the NCA draft and the Law Society draft most matters of parliamentary procedure are left to be prescribed in standing orders, but in those two draft constitutions the Senate is given very limited legislative powers.

If the new constitution creates a Senate, and if the Senate is given the same or nearly the same powers as the lower chamber to enact legislation, then the relationship between the two chambers should be spelled out as it is in the present Constitution.

The internal procedures of each chamber should for the most part be left for the chambers concerned to work out in their standing orders. The constitution should, however, lay down some minimal ground rules:

• Legislative procedures must allow adequate debate on all legislation. Members must be give adequate time to consider the legislation; “fast-tracking” Bills should be prohibited or at least minimised.
• There must be adequate consultation before legislation is presented in Parliament. Current parliamentary procedures do require Bills to be considered by portfolio committees and allow the committees to hold public hearings, but the constitution itself should lay down the need for full consultation.

In addition, though this need not be specified in the constitution, the procedural rules should be made as simple as possible so that members understand them easily and do not have to be subjected to lengthy induction before they are able to take part effectively in debates.

5. Powers of the Legislature over National Finance

In Britain since the 17th century the Executive has had to rely on Parliament to provide it with the necessary finance to maintain the government, and Parliament has used its financial power to keep the Executive in check. This is reflected in the present Zimbabwean constitution, where Chapter XI gives Parliament (primarily the House of Assembly) power to raise finance through taxation, requires all government revenues to be paid into a single Consolidated Revenue Fund, and prohibits the Executive from withdrawing money from the Fund unless the withdrawal is authorised by an Act of Parliament.

The new constitution should certainly continue this position, and if possible should strengthen it, perhaps in the following ways:

• The constitution should state that no taxes can be raised except under the specific authority of an Act of Parliament. The present Constitution does not state this expressly, and the President has raised some taxes temporarily through regulations made under the Presidential Powers (Temporary Measures) Act.
• Parliament should be required to set statutory limits on the level of national debt and borrowings by the State.
• All public accounts without exception should be audited by the Comptroller and Auditor-General and scrutinised by Parliament. At present some accounts relating to the President’s office are not scrutinised.
• The power to fix and raise the salaries and allowances of State officials, including the President, Ministers and members of the legislature, should be made subject to approval by an independent Salaries Commission set up by the constitution.

6. Dissolution, Adjournment and Sessions of the Legislature

At present, the President has power, in his personal discretion, to summon Parliament to its annual sessions, to prorogue (i.e. adjourn) Parliament and to dissolve it (sections 31H(5), 62 and 63 of the Constitution). He cannot abolish Parliament completely, because Parliament must meet at least once every six months (section 62(2)) but he can keep its sittings to a minimum. The maximum life of Parliament (i.e. the period between general elections) is five years (section 63(4)) but the President can shorten that period by dissolving Parliament before the five-year term has elapsed.

If Parliament cannot even determine the dates of its own sessions it cannot be regarded as a truly independent legislature. Clearly the new constitution must reduce the President’s powers in this regard.

One way of doing it, suggested in the NCA draft constitution and the Law Society’s draft, would be to allow Parliament to determine when and how often it should sit. The President would be required to summon Parliament within 21 days after a general election, and after that it would be up to Parliament to work out its own sittings. In the interests of efficiency, Parliament would probably have to prepare some sort of time-table for its sittings, but this could be done through its standing orders rather than through presidential order.

Even the power to dissolve Parliament could be conferred on Parliament itself rather than on the President. This would have to be done by an increased majority, say a two-thirds majority, of all the members of Parliament (or of the lower chamber of Parliament, if there is to be a bicameral legislature).

Conclusion

One important point should be made before ending. Whatever the form of the legislature in the new constitution, and however much power it is given, it will only be effective if effective members are elected to it. Its effectiveness, in other words, will depend on the quality of its members. That in turn will depend, at least partly, on the form of the electoral system. And that will be the subject of another Constitution Watch.

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