Role of Parliament after constitutional draft

Role of Parliament in Constitutional Reform Process in Zimbabwe: Post Drafting.

By SANDERSON N MAKOMBE 

The constitutional reform process in Zimbabwe is limping heavily, with more obstacles ostensibly lying ahead. The process as envisaged by the GPA is premised to culminate in a 2nd All Stakeholders’ Conference, which will produce a draft constitution. The draft constitution and accompanying report are then tabled in parliament before the draft is subjected to a referendum, according to article 6 (C) V and V11.The report and accompanying draft constitution will be debated for a month in parliament before being subjected to a popular vote.

What role parliament and the executive plays, with regard to their legislative authority, towards the draft constitution emerging from the All Stake holders’ Conference, remain an elusive and controversial issue. This is further complicated by effects of the Referendum Act 1999 [2.10], which provides the Executive President with unlimited powers over the process. Sadly Zimbabweans have been left not any wiser because of the lack of clarity on this matter in the GPA, or further directions from the Minister of Constitutional Affairs, except the lingering silhouette legacy of the Mushayakarara case.

Nothing aptly demonstrate this quagmire and danger more than the debacle of the Chidyausiku Commission in 2000.The Constitutional Reform Commission ,appointed in terms of the Commission of Inquiries Act, produced a draft constitution which was gazetted on 30 November 1999.This Gazetted draft contained some clauses totally divergent from the original draft. Exacerbating the situation, President Mugabe on 19 January 2000, published a further draft which contained 44 so called ‘Corrections and Clarifications’. Principally included was a new clause on 57, a clause allowing the state to compulsorily acquire land without compensation.14 of the 44 Corrections and Clarifications actually substantially altered original clauses of the draft constitution, before it was subjected to a referendum.

Shortly the after rejection of the draft in a referendum on February   12-13, 2000, the amended Section 57 [on compulsory acquisition of land] of the draft found expression in the constitution through ZANU PF fourth parliaments’ last act in tenure through amendment No 16.The amendment of the draft was the subject of litigation in the Mushayakarara case which I will discuss later.

The constitution of Zimbabwe provides in Section 32 that the legislative authority of Zimbabwe ‘shall vest in the legislature, which shall consist of the President and Parliament. Furthermore, Parliament is given sole responsibility ‘to amend, add or repeal any provision of the constitution by Section 52.The procedure for making law [through enactment, repealing and adding] is that subject to a quorum of a simple majority of both houses, legislators can make or amend any law, including constitutional law. The threshold barrier of simple majority is raised to absolute majority if the bill under discussion is a constitutional amendment bill by Section 52 [c].The authority to amend the constitution, is like other laws, vested in parliament.

The heading under Section 52 of the Zimbabwe constitution is ‘Alteration of the Constitution’, which is expanded by 52[1] to mean ‘amend, add to or repeal’. Under Section 113 on Interpretation, ‘amend’ is defined as to include ‘vary, alter, modify or adapt’. Analogous terminology is used in Kenya’s constitution. [Which also became a focal point of litigation in the Kenyan High Court]. Section 47 of the Kenyan constitution states ‘Parliament may alter the constitution’.

Furthermore, alteration is defined as to mean ‘amendment, modification or enactment of a provision or the suspension or repeal of such a provision or the replacement of a provision of the constitution.’ A strict interpretation of the aforesaid point to the fact that Section 52,like Kenya’s section 47, does not empower parliament to make wholesome changes to a constitution, nor revoke it, but rather empowers parliament to make piecemeal changes to the constitution.  The roots of the verbs amend, alter, adapt and modify signify a moderate change to an existing structure, short of overhauling it.

 This point is very relevant when the current constitutional reform process reaches the stage when the draft will be tabled before parliament. The crucial question is whether parliament will treat the draft as any other constitutional bill, with powers to amend, add or modify using legislative powers under Section 52? Principally if the bill is considered as any other amendment bill, it renders the whole logic of public participation and constituent power irrelevant,disempowering the citizenry who ought to author the constitution, whilst  effectively ensuring that sectional interests of the major political parties will dominate the debate in parliament.

There is a school of thought recognising that writing a new constitution is not  the same as making constitutional amendments, as reform  is deemed as seeking  to substitute the whole constitutional make up with a new constitutional order. Alteration on the other hand, is understood to be a process of changing certain clauses in a constitutional document without necessarily substituting the whole document.

The current Zimbabwean constitution provides in express terms the procedure for amending the constitution. It provides that a constitutional amendment has to be affirmed by two thirds of both Houses of Parliament. Precedent has shown that this express provision applies solely to amendments as opposed to wholesale reform of the constitutional order. As of now, the original Lancaster House constitution has been amended 19 times in 30 years.

Put in other words, does the constitution of Zimbabwe allow parliament to revoke it [constitution]? Probably not. Parliament in its ordinary legislative process cannot formulate a new constitutional reform bill and pass it as it does not have the power to do thus. In other words, the constitution did not provide on the process of bringing a new constitution into life. [Before the GPA, which found expression through amendment No 19].

Therefore if this school of thought is adopted, it means that parliament as it stands right now does not have any powers to effect or give effect to a new constitution. Some constitutions have entrenched the process in the constitution, recognising and providing for its own total replacement. Not only does the entrenchment provide the power to replace, it also crucially provides the process and stages to be followed when a new constitution is to be enacted.

The logic behind this reasoning is that parliament itself is a product of the constitution; therefore it has no power to bring the same into life. The power to replace the constitution vests directly in the people themselves and cannot be exercised by parliament on their behalf. Theorists refer this as constituent power of the people. They note the constituent power can only be exercised through constituent assemblies elected directly by the people with express mandate to replace the constitution with another.

It has also been recognised that a constituent power can also be expressed through a referendum, a process which the Zimbabwean constitutional reform process has adopted. Therefore what’s the essence then of tabling the draft in parliament when the constituent power vests in the referendum.  If this holds water, any provisions in the draft that parliament want resolving or further consultation must be returned to the All Stakeholder Conference for further deliberations and adopted as such by such a body tasked to produce the draft constitution.

Parallel to this thought are those who want to recognise that parliament in exercise of its unquestionable absolute legislative power as provided under section 32 and 52 was constitutionally authorised to alter any part of the constitution and therefore, all sections of the constitution. They recognise that parliament has unlimited authority to alter the constitution, section by section which in totality would amount to replacing the constitution with a new order.

Already parliament has effected far reaching constitutional changes since 1980 which include changing the form of government from a Prime Ministerial Westminster type to executive presidency, abolishing bicameral legislative body in the late 1980, and then back again to bicameral in 2007.The 19 amendments have substantially altered the original document, though short of overhauling it.

However, the first interpretation sounds more logical and in tandem with modern democratic principles. It remains a fact that parliament on its own cannot write a new constitution for us, that would actually amount to a revolution. Two cases in Kenya confirmed this interpretation in the High Court. First was the Ringera Judgement and secondly, the Ngamu Judgement. On a point of law, different sittings in the High Court ruled that the current Kenyan constitution did not allow parliament to revoke it or establish a new constitutional order, vide section 47, which is very similar to Zimbabwe’s section 52.

Therefore it is imperative that that the Justice Minister explains to the nation what role parliament will play when the draft is presented before them and if they have powers to amend, alter or modify the draft before it is submitted to the referendum. As happened in 2000, what powers also does the executive have on the draft before it is submitted to the referendum. The danger is that, in worse case scenario, we are going to end up with the Kariba draft. How?

In the Mushayakarara and Obey Mudzingwa Vs Chidyausiku petition, Justice Bartlett was asked to adjudicate on the powers of the President as provided by the Referendum Act. He ruled then that the Referendum Act 1999 did not require the President to put before a referendum a constitution approved by the then Constitutional Commission. In other words, he [President] was entitled to put any draft to the electorate and it was up to the electorate to affirm or reject that draft.

Alarmingly, for the current process, Justice Bartlet further ruled that the President through the Referendum Act is entitled to make any corrections, clarifications, alterations or amendments to the draft constitution if he so wishes and does not even need the approval of parliament or any other institution for that matter!

This still stands as good law and the current process envisaged by the GPA, which requires a referendum will be held through the Referendum Act, a law principally administered by the executive. Yes, we could end up with the Kariba draft or whatever ZANU PF so wishes. The MDC should have pushed for a robust process under article 6 of the GPA removing the president’s power to amend the draft.

To curtail such excesses, the following could provide a smoother passage for the draft, if ever it will be produced!

1. The Referendum Act must be repealed before the next referendum, removing unlimited powers for the presidency to interfere with the process.

2. Parliament must not be allowed to modify, amend, and alter any provisions of the draft constitution before it is subjected to a referendum. Such task must be done by the drafting organ of the all stakeholders’ conference after shifting through materials from thematic committees. The three principals could agree on this principle.

3. Next constitution must also provide for its own overhauling expressly and the stages necessary to affect a constitutional changeover.

The writer can be contacted on [email protected]