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Constitution Bill - Constitution Watch 25/2013
April 05, 2013
of Zimbabwe Amendment (No. 20) Bill was gazetted in a Government
Gazette Extraordinary dated 29th March.
followed the YES vote in the Referendum held on 16th March. The
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].
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
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.
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.]
and Portfolio Committee reports not necessary
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
will the New Constitution come into Force?
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 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
OF ZIMBABWE AMENDMENT (NO. 20) BILL, 2013
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.
To repeal and
substitute the Constitution of Zimbabwe.
the President and the Parliament of Zimbabwe.
This Act may
be cited as the Constitution of Zimbabwe Amendment (No. 20) Act,
In this Act—
Constitution” means the Constitution of Zimbabwe that came
into operation on the 18th April, 1980, as subsequently amended;
means the Constitution of Zimbabwe set forth in the Schedule.
of existing Constitution by new Constitution
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.
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:
72(3)(a) on compensation for agricultural land compulsorily acquired
[insertion of a cross-reference to another section on the subject];
157(3) – rearrangement of word order to express more clearly
the time periods between election proclamation, nomination day
and polling day;
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.
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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