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Giving effect to the Constitution continued - Constitution Watch 35/2013
Veritas
August 28, 2013

Giving effect to the New Constitution continued

Introduction

In Constitution 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.

National Prosecuting Authority

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 remains vacant.

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.

Publication of criteria for instituting prosecutions

Under section 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.

The principles 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.

Constitutional Court and constitutional jurisdiction of other courts

In Constitution 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.

Even though 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
• determine whether Parliament or the President has failed to fulfil a constitutional obligation
• confirm declarations by other courts invalidating laws and administrative conduct on constitutional grounds.

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.

In addition, 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.

Provincial 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.

Electoral amendments

Perverse though 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 the Inclusive 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.

Rather than 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:
  
• Section 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 vote.
  
• 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.

Enabling Acts for new commissions

The new Constitution has created three new commissions:

• the Zimbabwe Gender Commission
• the National Peace and Reconciliation Commission
• the Zimbabwe Land Commission.

Although the 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.

Further amendments

The legislative 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 Watches.

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