Constitutional sense from unlikely source

By Psychology Maziwisa

ZANU PF, the MDC T and the NCA’s varying propositions on how the country’s executive must be constituted are, to give the most balanced view, reasonable, ridiculous and very ridiculous respectively. 

For ZANU PF the preference is to retain the old executive order comprising the President, two Vice-Presidents and Cabinet while both the MDC T and the NCA would, although for different reasons, favour an executive system with a President, Prime Minister and Cabinet.

The MDC T wants a directly elected President who appoints a Prime Minister ‘from a party which commands a majority in Parliament.’ Dr Lovemore Madhuku’s NCA is proposing a largely ceremonial President, alongside an executive Prime Minister. 

It is common cause that the parties are agreed that whether the country is under an executive president as contemplated by ZANU PF and the MDC T or by an executive Prime Minister as absurdly proposed by the NCA, that president or executive prime minister (whatever the case might be) should be subject for election for a maximum of two-five year terms. This, in my view, is a plausible development. 

What is most disconcerting, however, is how all the parties could so swiflty agree to perpetuate what clearly is an out-dated, undemocratic notion that to occupy the highest office in the land one must be 40 or 35 years of age. In progressive democracies the determination whether one is fit to occupy public office, including the highest office in the land, is left not to considerations of age but of pragmatism, pedigree and the political will to address the real issues of the day.

It stands to reason that if one is eligible to vote they must correspondingly be eligible to be voted for or against. If not then we might as well change the same constitution to allow for voting eligibility to start only at 40 or at 35. They can no longer continue to take people for granted without serious consequences.

We can no longer tolerate a situation where the empirically larger section of our society is made to enjoy only the remnants of our democracy. If we are going to be a democracy let us be a fully-fledged one. It is either we are a democracy or not.

Legally, if this constitutional aberration is not addressed now it is not inconceivable that those who might feel discriminated against will challenge it and challenge it successfully before an independent, impartial constitutional court. 

Zimbabwe experienced an extraordinary political situation in the several years preceding the advent of the unity government. What we cannot afford now is a repeat of that anomalous situation let alone an aggravated version of it. The current constitution-making process is a refreshing one and one that must seek to make normal what at best was an appalling situation.

The question though is how does one go about normalizing it? Shall we do so by proposing to have an executive president alongside an executive prime minister? The answer is a resounding ‘NO’. Shall we do so by proposing to have a largely ceremonial president and an executive prime Minister? Definitely not! 

What the shortsighted and clearly partisan MDC T along with the patently hopeless NCA need to grasp is the simple fact that aside from it being the de facto position in the SADC region to have an executive president, a vice-president and no prime minister at all, a system that has proven to work perfectly well in Africa and beyond, including in the United States of America, the suggestion to incorporate a prime minister within our political dispensation is not only a primitive one, it is one that evokes terrible memories of a past we are still grappling to come to terms with.

Whether that incorporation results in a weak prime minister or an all too powerful one, it is a grave political oversight to dismiss the possible political contestation that might ensue as inconsequential. 

In any event, both propositions are fraught with practical problems. For instance, the MDC T view ignores the possibility that the President of the day might well belong to the very ‘party with a majority in parliament’. The NCA position presupposes that ZANU PF is so obsessed with the position of ‘President’ it will still vie for that portfolio even if it means that that president is a largely ceremonial one and the actual executive powers vest in a prime minister!

What happens if ZANU PF wins the presidential election and is the ‘party with a majority in parliament? What happens if the reverse is true? And what happens if ZANU PF wins the premiership? Shall we change the constitution again? Ridiculous! 

A constitution is supposed to be a permanent governing document amendable only in the rarest of cases, with at least two thirds of our parliamentariants concurring. It is not one that should be used to settle immediate political scores. If anything, it ought to look into the future; be farsighted enough to take into account the best interests, not only of this generation, but the next and many more to come. That is the constitution we need. 

Meanwhile, ZANU PF must severe the no-longer attractive tradition of having two vice-presidents. It is as politically undesirable as it is fiscally burdensome. Two is bad enough. Three is crazy! Zimbabwe will not have any of it. Not any more. Enough! 

The MDC T and the NCA need to be alive to the reality that the best way to correct past excesses is not by bringing a prime minister into the equation. It is by proclaiming in our constitution that the constitution shall be the supreme law of the land and that everyone, including the president, is subject to it. It is corrected, more importantly, by creating a constitutional court with independent, impartial justices.

I do not know about the rest of Zimbabwe but I would much rather entrust the constitutional order of Zimbabwe in the hands of 5 or 11 independent, impartial justices than in the hands of one prime minister who might very well be partisan from time to time. 

For illustration purposes: In 1997 the then South African President Nelson Mandela issued two presidential notices that appeared in the government gazette. One notice related to the appointment of a commission of inquiry into the administration of rugby in that country. The governing body, South African Rugby Football Union (SARFU) contented, amongst other things, that the president had failed to apply his mind in determining whether to appoint the commission of inquiry.

Because he had merely rubber stamped the request to appoint a commission of inquiry by the relevant Minister, SARFU argued, the president had abdicated his constitutional powers as only he, according to the South African constitution, could make that final determination. 

The court aquo found in favour of SARFU but when the matter came before the South African constitutional court, the court found that while President Mandela had sought advice prior to making a decision on the matter, the ultimate decision had been made by himself and himself only. Accordingly, said the court, the judge of the court aquo had erred in finding against Mandela.

Handing out judgment for a unanimous constitutional court, Chaskalson JP, the then Judge President of the South African constitutional court explained that the exercise of presidential power is not without constraints. The doctrine of legality applies as it does in respect of all power exercised in terms of the constitution.

Additionally, the Judge explained further, the constitution enjoins the President to act in good faith and without misconstruing the nature of his or her powers. 

Earlier on the same court had explained in President of the Republic of South Africa v Hugo that: ‘The president derives his powers not from antiquity but from the Constitution. Should the exercise of the power in any particular instance be such as to undermine any provision of the Constitution that conduct would be reviewable.’ 

In the light of the foregoing, the most rational and viable proposition in respect of the executive seems to have come from the unlikeliest of sources and it is a proposition every progressive Zimbabwean must embrace EXCEPT Zimbabwe needs ONE President and ONE Vice-President both of whom, like every other citizen, are not above the constitution but subject to it.

[newsletter]