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effect to the Constitution continued - Constitution Watch 35/2013
August 28, 2013
to the New Constitution continued
Watches 33 and 34
of 2013 Giving Immediate Effect to the New Constitution
- Parts I and II we dealt with legislative amendments which should
have been made to give effect to those provisions of the new Constitution
that came into operation on 22nd May. In this Constitution Watch
we turn to further amendments that must be made as soon as possible
now that the new President has assumed office and the Constitution
has come fully into operation.
Under the Lancaster
House constitution the Attorney-General was the Government’s
chief legal adviser and was also responsible for prosecuting criminal
cases on behalf of the State. Under the new Constitution these two
functions are separated: the Attorney-General continues to give
legal advice to the Government [section 114] but responsibility
for criminal prosecutions is transferred to a new National Prosecuting
Authority [NPA] established by section 258 of the Constitution.
The NPA is headed by a Prosecutor-General [section 259]. Mr Tomana,
who was previously Attorney-General, has become the Prosecutor-General
by virtue of paragraph 19(2) of the Sixth Schedule to the Constitution,
which states that “the person who held office as Attorney-General
immediately before the effective date continues in office as Prosecutor-General
on and after that day” [the effective date for this provision
of the Constitution was 22nd August]. The post of Attorney-General
In the absence
of legislation setting out its structure and organisation the NPA’s
existence remains largely theoretical. Presumably all public prosecutors
and members of the criminal division of the Attorney-General’s
Office are continuing to carry out their functions as before, but
their authority to do so is doubtful in the absence of a law which
states that they are employed by the NPA. In terms of section 259
of the Constitution an Act of Parliament
must provide for the NPA’s organisational structure and for
a board to employ its staff. Parliament must pass this Act as soon
as possible, because until it is enacted there cannot be a board
to employ public prosecutors - and in the absence of a board to
employ them they are arguably not members of the NPA’s staff,
and so not entitled to prosecute.
of criteria for instituting prosecutions
260(2) of the Constitution, the Prosecutor-General must formulate
and “publicly disclose” the general principles by which
he decides whether or not to institute and conduct criminal prosecutions.
need not be set out in legislation, though embodying them in a statutory
instrument would be one way of publicly disclosing them, but they
must be published as soon as possible to avoid suggestions that
criminal proceedings are being instituted for improper motives.
Court and constitutional jurisdiction of other courts
Watch 34/2013 of 23rd August, it was recommended that rules of court
should be published immediately to regulate the Constitutional Court’s
power to hear cases arising out of the recent general election.
the result of the Presidential election is settled it is necessary
to regulate all the other aspects of the Constitutional Court’s
jurisdiction under section 167 of the Constitution, in particular
the court’s power to:
- deal with
cases involving alleged violations of human rights
- advise on
the constitutionality of proposed legislation
whether Parliament or the President has failed to fulfil a constitutional
- confirm declarations
by other courts invalidating laws and administrative conduct on
All these, as
well as time-limits for instituting proceedings in the court, procedures
for the issue of summonses, warrants and other documents, and the
conferring of supplementary powers on the court, should be dealt
with in a new Constitutional Court Act along the lines of the Supreme
Court Act and High Court Act.
because section 175 of the Constitution gives all courts power to
make constitutional rulings, the Acts which establish those courts
must be amended to enable them to exercise their new powers.
and Metropolitan Councils
A new Act must
be enacted setting up provincial and metropolitan councils in accordance
with Chapter 14 of the new Constitution. Strictly speaking the councils
have been established by the new Constitution itself, but until
legislation is enacted the councils will have no venues, no structures,
no procedures and no staff - and there are large numbers of newly-elected
councillors waiting for something to do.
The Act must
also provide for capital grants and other payments to be allocated
equitably between provincial and metropolitan councils and local
authorities, as required by section 301 of the Constitution.
it may seem, the much-amended Electoral
Act needs to be amended yet again.
The most recent
amendments to the Act were seriously flawed. The public were not
invited to discuss proposed amendments, and political parties outside
Government were not consulted at all. The amendments were enacted
by the President through the Presidential
Powers (Temporary Measures) Act, so their legality was debatable.
In any event, the regulations which enacted the amendments will
expire just before Christmas [because regulations under the Presidential
Powers (Temporary Measures) Act remain in force for only 180 days],
so the amendments must be re-enacted by Parliament before then.
re-enacting the amendments, Parliament would be better advised to
replace the Act entirely, for the following reasons:
- Some of
the recent amendments do not comply with the new Constitution.
To give just two examples:
67 of the new Constitution, as the Zimbabwe Electoral Commission
[ZEC] belatedly acknowledged, gives all adult citizens the right
to vote in elections. Section 155(2)(b) reinforces this by imposing
a duty on the State to ensure that every eligible citizen has
an opportunity to cast a vote.This means that citizens who are
living outside Zimbabwe or who are in prison or who are immobilised
in hospital are entitled to vote in elections and must be given
an opportunity to do so. The amended Electoral Act contains no
procedure which would enable them to vote indeed it effectively
prevents them from doing so by denying them the right to a postal
- The amended
Act preserves ZEC’s virtual monopoly over the provision
of voter education. No one may provide voter education without
ZEC’s approval; the nature or content of any such education
must also be approved by ZEC; and the provision of voter education
by anyone other than ZEC must be funded solely from local sources.
All this violates the right of citizens to participate in peaceful
political activity [guaranteed by section 67(2)(c) of the Constitution]
and their right to freedom of expression [guaranteed by section
61 of the Constitution].
- Some of
the recent amendments, though constitutional, may have been ill
advised. This is certainly so with special voting, which was intended
to give persons engaged in election duties an opportunity to cast
their votes before polling day. The special voting procedures
were inadequate for the purpose, and as a result ZEC had to rule
that the large number of people who were unable to cast their
special votes would be allowed to vote at ordinary polling stations
on polling day. This ruling was in direct contravention of section
81B of the Electoral Act, which expressly prohibits a special
voter from voting in the ordinary way on the general polling day.
The Minister of Justice has since suggested that special voting
would be abolished.
Acts for new commissions
The new Constitution
has created three new commissions:
- the Zimbabwe
- the National
Peace and Reconciliation Commission
- the Zimbabwe
Constitution outlines how they are appointed and their functions,
these commissions need enabling Acts to regulate their procedures
and staffing, and to confer ancillary functions and powers upon
them, in the same way that enabling Acts have been passed for commissions
such as the Zimbabwe Human Rights Commission and the Zimbabwe Anti-Corruption
Commission, which were established under the previous constitution.
amendments outlined in this Constitution Watch have to be made as
soon as possible, in order to give effect to the new Constitution.
There are numerous other legislative changes that need to be made
- for example, to require the Constitution to be taught in schools
in compliance with section 7 of the new Constitution, and to enforce
the principles of public administration laid down in Chapter 9 -
but they are not so urgent and will be dealt with in future Constitution
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