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New Constitution Bill - Constitution Watch 25/2013
Veritas
April 05, 2013

New Constitution Bill

The Constitution of Zimbabwe Amendment (No. 20) Bill was gazetted in a Government Gazette Extraordinary dated 29th March.

The gazetting followed the YES vote in the Referendum held on 16th March. The Referendum result was publicly announced by the Chief Elections Officer on 19th March at the Zimbabwe Electoral Commission National Command Centre in Harare, and formally notified by the Minister of Constitutional and Parliamentary Affairs by General Notice 201A/2013 published in a Government Gazette Extraordinary dated 26th March [see Bill Watch 11/2013 of 26th March].

Next Step: Introduction in Parliament

Section 52 of the present Constitution states that a constitutional Bill has to be “published in the Gazette not less than thirty days” before its introduction in Parliament.

The gazetting on 29th March means that the Bill can be introduced at any time from Tuesday 30th April onwards. It will be Minister Matinenga, Minister of Constitutional and Parliamentary Affairs, who will introduce the Bill as soon as Parliament resumes. The Bill will be introduced in the House of Assembly first, and once it is passed by that House will be transmitted to the Senate. In each House it must be approved by at least two-thirds of the total membership – the special majority required to pass a constitutional Bill.

Parliament is scheduled to resume on Tuesday 7th May but technically it could be recalled on Tuesday 30th April. There is a great deal of other Parliamentary business to be done once the Bill is passed, such as amending the Electoral Act to bring it into line with the new Constitution. [Bill Watch 10/2013 of 25th March listed other legislation needed before the elections can be held.]

PLC and Portfolio Committee reports not necessary

A Constitutional Bill does not go to the Parliamentary Legal Committee for scrutiny [present Constitution, Schedule 4, paragraph 4, and section 40B(1)(a)]; it would be absurd to test a Bill for consistency with the present Constitution when its whole point is to change or repeal the Constitution. So the Bill will not be subject to the mandatory delay between First and Second Readings that applies to other Bills. And, as the new Constitution is the product of a Parliamentary Select Committee [COPAC], and has been approved by the voters at the Referendum, there is no need for a report from the Portfolio Committee on Justice, Legal Affairs, Constitutional and Parliamentary Affairs.

When will the New Constitution come into Force?

Once passed by both Houses of Parliament, the Bill will go to the President for his assent, which will be indicated by his signature. Then it will be gazetted as an Act. The day on which it is gazetted is called “publication day” in the new Constitution. What happens then is laid down in the Sixth Schedule to the new Constitution:

• Some parts of the new Constitution will come into force immediately, on publication day – particularly those parts dealing with elections, so that the next elections will result in a the election of a new President, National Assembly and Senate, provincial and metropolitan councils and local authorities, as laid down in the new Constitution. Also coming into force immediately will be the Declaration of Rights and the provisions about the Constitutional Court. The corresponding parts of the present much-amended Lancaster House constitution will give way to these new provisions.
• The rest of the new Constitution will only come into force when the person elected as President in the coming elections is sworn in. At this point the present Constitution will fall away completely. In the interim or transitional period, the present Constitution will continue in partial force.

The Bill

The Bill has three short clauses and a Schedule in which the text of the new Constitution is set out. There is also a brief explanatory memorandum, which mentions the approval of the new Constitution in the Referendum held on 16th March and draws attention to the fact that the Sixth Schedule to the new Constitution provides for it to come into force in two stages. The memorandum and the Bill [minus the Schedule] are as follow

CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 20) BILL, 2013

MEMORANDUM

The purpose of this Bill is to provide for the replacement of the existing Constitution of Zimbabwe (that came into operation on the 18th April, 1980, as subsequently amended) by the new Constitution of Zimbabwe. The new Constitution of Zimbabwe was overwhelmingly approved by the people of Zimbabwe at the referendum held on the 16th March, 2013.

The Sixth Schedule to the new Constitution requires that it must be “enacted” by Parliament in accordance with the existing Constitution. The Sixth Schedule also stipulates which parts of the Constitution come into force immediately upon its enactment. If enacted by Parliament, the new Constitution will fully come into force on the day on which the President elected in the first elections after the enactment of the new Constitution assumes office.

BILL

To repeal and substitute the Constitution of Zimbabwe.

ENACTED by the President and the Parliament of Zimbabwe.

1 Short title

This Act may be cited as the Constitution of Zimbabwe Amendment (No. 20) Act, 2013.

2 Interpretation

In this Act—

“existing Constitution” means the Constitution of Zimbabwe that came into operation on the 18th April, 1980, as subsequently amended;

“new Constitution” means the Constitution of Zimbabwe set forth in the Schedule.

3 Repeal of existing Constitution by new Constitution

(1) Subject to subsection (2), the existing Constitution is repealed and substituted by the new Constitution.

(2) For the avoidance of doubt it declared that—

(a) the new Constitution is enacted on the “publication day” as defined in the Sixth Schedule to that Constitution, that is to say, on the date on which this Act is published in the Gazette in accordance with section 51(5) of the existing Constitution; and

(b) with effect from the date of enactment of the new Constitution as described in paragraph (a), the existing Constitution remains in force to the extent specified in the Sixth Schedule of the new Constitution.

Differences between the draft Constitution for the Referendum and the Constitution in the Bill

There are a few textual differences between the draft constitution that was gazetted for the purposes of the Referendum and the Constitution set out in the Schedule to the Constitution Bill. Most of the differences are purely editorial changes that do not alter the meaning or sense of the provisions concerned. For example here have been changes of wording in:

• section 72(3)(a) on compensation for agricultural land compulsorily acquired [insertion of a cross-reference to another section on the subject];
• section 157(3) – rearrangement of word order to express more clearly the time periods between election proclamation, nomination day and polling day;
• section 186 – correction of an omission by inserting that the security of tenure for Labour Court and Administrative Court judges will be the same as that of Supreme Court and High Court judges;
• 268(3) and (4) – correction of wrong cross-references.

One more substantial change was made by agreement of the COPAC Management Committee, including negotiators from all three GPA parties, to clarify that certain new provisions about elections will not apply to the forthcoming election. The change was to paragraph 3(e) of the Sixth Schedule to the new Constitution which refers to “Chapter 7, relating to elections” coming into force on publication day, so that the next elections will be in accordance with the new Constitution [for example: the time frame for announcing results; proportional representation; metropolitan councils; 60 seats for women; etc]. The Bill has clarified this paragraph by the insertion of “except sections 158, 160 and 161”.

The effect of the exceptions is to make it completely clear that sections 160 and 161 about new delimitations of electoral boundaries will only come into force for the elections following the coming ones [this is now in harmony with paragraph 5 of the Sixth Schedule]. Section 158 is the provision about the timing of an election when Parliament is dissolved on the expiry of its five-year lifespan. Section 158 envisages elections during the last month of the new-style Parliament’s life [“not more than 30 days before the expiry of the five-year period”], whereas under 63 of the present Constitution elections must be held not later than four months after the end of the five years. The Bill makes explicit the inference that section 158 does not apply to the coming elections.

Comment:

1. This clarification is not illegal or unconstitutional. There is nothing in the Referendums Act, the present Constitution or Parliamentary Standing Orders that prohibits changes being made to a document approved by the voters in a Referendum, let alone minor adjustments that do not change anything of substance.

2. The adjustments made to not disturb the essence of what the COPAC draft intended, which was approved by the YES vote in the Referendum.

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