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Giving immediate effect to the Constitution - Part II - Constitution Watch 34/2013
Veritas
August 23, 2013

Read Part I

Giving immediate effect to the New Constitution - Part II

Introduction

Changes to statute law to give effect to provisions of the new Constitution that came into force on 22nd May should have been ready to be implemented on that day, but certainly should have been made before the end of the last Parliament on 28th June. Even though the necessary changes were not made when they should have been, they still have to be made - indeed, they become more urgent as time goes on.

• Part I [Constitution Watch 33/2013 of 20th August] dealt with changes that should have been made to harmonise laws with the new Declaration of Rights.
• Part II, this bulletin, will look at changes that should have been made to give effect to provisions on citizenship, elections, the impartial conduct of public officers, particularly members of the security services, and the Constitutional Court.

Citizenship

The new Constitution has made several changes to our citizenship law which must be reflected in the Citizenship of Zimbabwe Act:

• It has conferred citizenship as an absolute birthright on people born in this country; i.e. it permits citizens by birth to hold dual citizenship [section 42(e) of the new Constitution].
• It has conferred citizenship by birth on people who were born in this country and descended from SADC citizens, so long as they were ordinarily resident in Zimbabwe on 22nd May 2013 [section 43(2) of the new Constitution].
• Foundlings - i.e. children under 15 who are found in Zimbabwe and whose parentage is unknown - are deemed to be citizens by birth [section 36(3) of the new Constitution].
• It has lengthened from five to ten years the period of residence required for citizenship by registration [section 38(2) of the new Constitution].
• It has restricted the grounds on which citizenship may be revoked; essentially, it may be revoked only if it was fraudulently acquired [section 39 of the new Constitution].

All these changes must be reflected in the Citizenship of Zimbabwe Act, and the Act must be amended now so that our citizens can be accorded the rights and privileges that the Constitution confers upon them.

Elections

New provisions came into force on 22nd May on how representatives to Parliament and local government would be chosen – e.g. the introduction of proportional representation for the Senate, for extra women’s seats in the National Assembly and for some Provincial Council seats. Although the new Constitution required that an Act of Parliament must provide for the conduct of elections, alignment of the Electoral Act with the new Constitution was done by regulations [SI 85/2013] made by President Mugabe under the Presidential Powers (Temporary Measures) Act, instead of by an amending Act. Although this expedient was later endorsed as valid by the Constitutional Court, the regulations are a temporary measure only and will lapse after 180 days, i.e. in mid-December. Before then there must be an amending Act- or, preferably, an entirely new Electoral Act - to ensure that the electoral law is compliant with the new Constitution. If this is not done the amendments made by SI 85/2013 will fall away, leaving the Electoral Act as it was in 2012.

[As this no longer such an immediate issue it will be covered in more detail in a future bulletin.]

Impartial Law Enforcement

Section 208 of the new Constitution, which also came into force on 22nd May, states that members of the security services [the Defence Forces, the Police Force and the Prison Service] must be non-partisan. To ensure that the security services comply with these provisions, the following legislative amendments should be made:

The Police Act should be amended:

• to repeat what is provided in section 207(3) of the new Constitution, that the powers to appoint, promote and dismiss police officers under the Act must be exercised impartially and so as to ensure that all the diverse peoples of Zimbabwe are properly represented in the Police Service;
• to enact a code of conduct to be observed by police officers in the course of their duties. The code could be based on that adopted in 2001 by the Southern African Regional Police Chiefs Co-operation Council;
• to make it a serious disciplinary offence for a police officer to contravene section 208, by acting in a partisan manner or by violating the fundamental rights of members of the public - in particular the rights of arrested or detained persons;
• to increase the powers of the Police Service Commission to investigate the conduct of police officers in order to ensure compliance with section 208;
• to establish an independent complaints mechanism for dealing with complaints from the public about misconduct on the part of police officers. This is mandated by section 210 of the new Constitution.

The Defence Act should be amended:

• as with the Police Act, to state that the powers to appoint, promote and dismiss members of the Defence Forces under the Act must be exercised impartially and in order to ensure proper representation of all the diverse peoples of Zimbabwe;
• to prohibit members of the Defence Forces from participating in politics [unlike the Police Act, there is no such provision in the Defence Act at present];
• to increase the powers of the Defence Forces Service Commission to investigate the conduct of members of the Defence Forces in order to ensure they act impartially in compliance with section 208;
• to establish an independent complaints mechanism for dealing with complaints from the public about misconduct on the part of members of the Defence Forces. This is mandated by section 210 of the new constitution.
• The Prisons Act should be amended along the same lines.

Constitutional Court

Rules of the Constitutional Court must be enacted, either in a separate Constitutional Court Act or by making rules under the Supreme Court Act, to give effect to the court’s constitutional jurisdiction. This should have been done already, because the Constitutional Court came into being on 22nd May, with power to deal with cases involving the Declaration of Rights and with exclusive jurisdiction to hear electoral disputes involving the Presidential election. The rules must cover matters such as confirmation of orders of unconstitutionality made by other courts [section 167(3) of the new Constitution] and the appearance of persons acting as friends of the court [section 167(5)]. Rules of court for the Supreme Court, the High Court and magistrates courts will also have to be enacted to allow those courts to exercise their powers under section 175 of the new Constitution to rule on the constitutional validity of laws or the conduct of the President or Parliament [note: these rulings are not valid unless confirmed by the Constitutional Court] and when to refer constitutional points to the Constitutional Court.

The last two Constitution Watches have dealt with changes that should have been in place on 22nd May when a certain number of provisions came into effect. In the next Constitution Watch we shall look at legislative changes that should have been in place immediately the new Constitution came fully into effect, i.e. when President Mugabe was sworn in on Thursday 22nd August. Examples of such changes are the establishment of the National Prosecuting Authority, Provincial and Metropolitan Councils, the National Peace and Reconciliation Commission and the Zimbabwe Gender Commission.

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