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Bringing the new Constitution into operation - Constitution Watch 26/2013
Veritas
May 09, 2013

Bringing the New Constitution into Operation

Introduction

The COPAC draft constitution was approved in a Referendum in March, and is likely to be passed into law by mid-May. Now it has to be brought into operation. How will this be done? In this Constitution Watch we shall concentrate on the legal processes mandated by the new constitution itself, rather than on the processes laid down in the “Electoral Road-map” agreed on by the principals to the GPA and endorsed by SADC. [Those processes are vitally important, in that if implemented they will ensure the forthcoming elections are peaceful and fair; but they arise out of the GPA rather than directly from the new constitution.]

Implementation of the New Constitution

1. Enactment of the constitution

The “yes” vote in the referendum did not bring the new constitution into force. Zimbabwe will continue to be governed by the current much-amended 1980 constitution until the Constitution of Zimbabwe Amendment (No 20) Act [see Constitution Watch 25 /2013 of 4th April 2013] is passed by Parliament and signed by the President. It is this enactment that will declare the new constitution to be the Constitution of Zimbabwe and repeal the current constitution. [Note: the repeal of the current constitution will be subject to the Sixth Schedule of the new constitution which provides that the current constitution will be replaced in stages]. The Act must be passed in accordance with section 52 of the 1980 constitution, so:

• The Bill for the Act had to be published in the Gazette for at least 30 days before it is introduced into Parliament. The Bill was in fact published on the 29th March, and it was introduced in Parliament when it resumed on the 7th May.
• At its third reading in the Senate and the House of Assembly, the Bill must be passed by at least two-thirds of the total membership of each House as stipulated by the Constitution – House of Assembly [215] and Senate [99], which means that vacancies are disregarded when calculating the two-thirds majority. So the Bill will need at least 142 votes in the House and 66 in the Senate. This should be no problem as the parties have all been campaigning for a “yes” vote.

Parliament does not have to pass an identical Bill to the one that was approved at the referendum; the GPA does not require it, and members of Parliament have a right to move amendments to any Bill. On the other hand, by approving the COPAC draft at the referendum voters sent a clear political message that that was what they wanted as the new constitution, and in any event Parliament cannot make substantial changes to a constitutional Bill that was published in the Gazette.

2. Parts of the new constitution that will come into operation immediately

Even after Parliament has passed the new constitution and the President has given his assent to it and had it published, the Sixth Schedule to the new constitution provides that only certain parts of it will come into operation immediately [as indicated above, the Constitution of Zimbabwe Amendment (No. 20) Act bringing in the new constitution will provide for the current constitution to be replaced in stages]. The following are the parts of the new constitution which will come into effect immediately and will override the equivalent provisions of the 1980 constitution:

• The provisions relating to citizenship.
• The Declaration of Rights.
• The provisions relating to elections, in particular those dealing with the election and assumption of office of a new President, the election and summoning of Parliament, and the functions and powers of the Zimbabwe Electoral Commission [ZEC].
• Provisions relating to public administration and leadership and the conduct of members of the security services.
• Provisions relating to provincial and local government.

3. Provisions that will come into operation later

Once the first election has been held and the first President elected under the new constitution is sworn in and assumes office, the remainder of the new constitution will come into operation and the present constitution will be wholly repealed.

4. Time-scale for implementation of the new constitution

The five-year life of the current Parliament comes to an end on midnight of the 28th June. After that, there will be no Parliament and all Bills which have not been passed will lapse. So the Bill enacting the new constitution will have to be passed by both Houses of Parliament and assented to by the President before that date. In fact it will have to be done well before then because a great deal of complex additional legislation will be needed to bring in the provisions of the new constitution that come into force immediately, and this is necessary before elections can be held.

Legislation Needed Before This Parliament Ends

There are two reasons why immediate legislation will be needed. The first is that the next general election will be held in accordance with the new constitution, and the Electoral Act will have to be amended to enable that election to be held. The second reason is that the provisions of the new constitution which come into operation immediately, will require changes to several other statutes if they are to be fully effective. [Note When the provisions which come in after the first election has been held and the first President elected under the new constitution is sworn in and assumes office, there will then be a great deal of other new legislation required, but that will be the work of the next Parliament].

Changes to the Electoral Act

The next election, which will elect the first President and Parliament under the new constitution, will have to be held in accordance with the new constitution. The Electoral Act will have to be amended to make provision for the following:

• Proportional Representation: Under the new constitution, 60 Senators, 60 members of the National Assembly and 80 members of provincial councils will be elected by a system of proportional representation based on the votes cast for constituency members of the National Assembly. The Electoral Act makes no provision for proportional representation and will have to be amended extensively to allow these elections to take place. We shall deal with these amendments in a separate Constitution Watch.
• Election of Senators to represent persons with disabilities: The new Senate will have two senators specially elected to represent persons with disabilities. How they will be elected, and even the definition of “persons with disabilities”, will have to be set out in the Electoral Act.
• New time-limits: Clause 157(3) of the new constitution requires nomination day in every election to be at least 14 days after the election was called, and at least 30 days before polling day. These time-limits will have to be incorporated into section 38 of the Electoral Act.
• Transfer of results between centres: The Electoral Act is vague and inconsistent about how and when election results must be transferred between electoral centres from ward to constituency, provincial and national level. The vagueness must be clarified and the inconsistencies removed.
• Transparency: Transparency as a component of good governance is one of the founding principles on which the new constitution is based. It is vitally important in elections, to avoid suspicion that the results have been manipulated. In particular, there should be complete transparency in the process whereby votes are counted and tallied and the results transferred from polling stations to ward centres and then to constituency centres, to provincial centres and finally to the national centre. There must be immediate disclosure of all results received at every centre and of all results transmitted from every centre.

These amendments will have to be drafted and put into operation quickly so that political parties and candidates who want to contest the forthcoming elections can familiarise themselves with the changes to the law. In particular, parties need to know well in advance of the election what system of proportional representation will be put in place and what the rules will be for contesting party-list seats. Ideally, the parties should be involved in drafting the amendments. Challenges to the Validity of the First Presidential Election

Whilst other electoral challenges remain the province of the Electoral Court provided for by the Electoral Act, under para 7 of the Sixth Schedule to the new constitution challenges to the election of the first President will have to be decided by the new Constitutional Court [see below]. It will be a policy decision whether the changes needed to specify the procedure for bringing such challenges before the Constitutional Court are done by legislation through Parliament, or by amending the Rules of the Supreme Court which can be done by the Chief Justice in consultation with a committee appointed by himself after which the new Rules will have to be approved by the Minister of Justice and Legal Affairs. Establishment of Provincial and Metropolitan Councils

The provisions of the new constitution relating to provincial and local government will come into operation as soon as the new constitution is published, i.e. before the first election. In order for the provincial and metropolitan councils to be become operational, legislation will have to be passed before then providing for the functions, powers and procedures of provincial councils - in effect, establishing the councils. Amendment of local government legislation

The Urban Councils Act and the Rural District Councils Act must be amended before the election to remove the power of the Minister of Local Government to appoint councillors [because under the new constitution all councillors will have to be elected]. For the same reason, the Ministerial notices laying down the number of councillors in each council will also have to be amended. Conduct of members of the security services

Clause 208 of the new constitution prohibits members of the security services - the Defence Forces, the Police and the Prison Service - from being active members of political parties. In fact it may not be necessary to enact legislation to enforce this clause, because police officers are already prohibited from participating in politics [section 9 as read with para 48(2) of the Schedule to the Police Act] and if members of the Defence Forces and Prison Service involve themselves in politics after the new constitution is published it will presumably amount to a breach of their conditions of service. Legislation needed to give effect to the new Declaration of Rights

A great many statutes will have to be amended to give effect to the Declaration of Rights contained in the new constitution. For example, under clause 48 of the new constitution the death penalty can be imposed only on men convicted of aggravated murder, so the Criminal Procedure and Evidence Act will need to reflect this. Such amendments, however, can be left until after the first election has been held, because decisions in cases involving many of these changes must be made by the courts under the new constitution.

There are, however, some changes that must be made immediately. These amendments are:

• Amendments to the Criminal Procedure and Evidence Act: Clauses 50 and 70 of the new constitution confer rights on persons who have been arrested or are up for trial, and many of these rights are not yet recognised under our law. For instance, arrested persons will have a right not to answer questions, and will have to be informed of their right not to do so, and will have to be brought before a court within 48 hours or else released; and accused persons in criminal trials will have to be informed of their right to legal representation and, like arrested persons, will be entitled to remain silent. These rights will become effective as soon as the Declaration of Rights becomes operative, and trials held under our current law, which ignores or severely limits these rights, may be rendered invalid.
• Establishment of a Constitutional Court: As soon as the new Declaration of Rights comes into operation, the rights conferred by it will become enforceable. Any appeals involving violations of the new Declaration of Rights will then go the Constitutional Court [rather than the Supreme Court as at present]. The Rules of the Supreme Court will therefore need to be amended in terms of para 18(4) of the Sixth Schedule to the new constitution so that constitutional cases can be brought before the Constitutional Court, which, by virtue of para 18(2), will consist of the current judges of the Supreme Court. [Note: after seven years there will be the appointment of special constitutional court judges to the Constitutional Court.]

Establishment of the National Prosecuting Authority

When the new President is sworn in and the new constitution comes fully into operation, responsibility for prosecuting criminal cases on behalf of the State will be transferred from the Attorney-General to a National Prosecuting Authority under the control of a Prosecutor-General [the present Attorney-General, incidentally, will become Prosecutor-General]. In order for the transition to proceed without disrupting the whole criminal justice system, the necessary legislative changes will need to be in place before the current Parliament ends. The Attorney-General’s Office Act must therefore be replaced by a new National Prosecuting Authority Act conferring the necessary powers on the Authority and its officers, and extensive amendments will also have to be made to the Criminal Procedure and Evidence Act changing responsibility for prosecution, etc.

Conclusion

Preparing all this legislation which is necessary before the elections, and getting it through Parliament before Parliament ends on 28th June, will be a major undertaking to complete in under two months. Regrettably, the politicians concerned seem to have embarked on election campaigning and are showing few signs of urgency about the necessary legislative agenda.

Note on Citizenship

The new constitution’s provisions on citizenship [Chapter 3] could be implemented without any amendments being made to the Citizenship Act. So a Citizenship Amendment Bill is not essential at this stage, but in view of the confusion that reigns about our citizenship law, which has been altered so frequently over the years, it would be desirable to amend the Act to clarify it and, most importantly, to ensure that administrative instructions about citizenship and consequential voter registration are standardised and made widely known to the public.

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