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The Legislature - Part II - Constitution Watch Content Series 9/2011
October 18, 2011
of the Legislature
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the member no longer represents its interests, and the member then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
- 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.
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.
privileges or immunities should the legislature and its members
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.
the main privileges and immunities enjoyed by members of the Zimbabwean
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.
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.
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.
are intended to facilitate the functioning of the legislature, not
to benefit the members individually. The new constitution should
mention them specifically.
by the Head of State
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”.
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.
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.
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
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.
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:
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.
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.
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.
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
- 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.
Adjournment and Sessions of the Legislature
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.
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
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
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