By Dr Alex T Magaisa
1.1 Two themes dominate the ZANU PF-proposed amendments to the Copac Draft Constitution:
1.1.1 first, an excessively powerful Executive President that is almost authoritarian and
1.1.2 second, a Parliament so weak that it is no more than a puppet of the Executive President.
1.2 If there was a weakness with the Copac Draft, it was that it already conceded too much power to the Executive Presidency but the effect of the ZANU PF amendments, if they were to be accepted, would be to give the office of the President more power, making the resulting draft even more objectionable.
- Concept of Limited Government
2.1 First, however, a note on the idea and importance of limited government is appropriate:
2.1.1 In making a constitution, one of the cardinal rules is to give effect to the principle of adequate checks and balances on the exercise of state power. This is the core of the principle of constitutionalism – the idea of limited government. It is that a constitution is not a document that merely describes and allocates power but limits and restrains governmental power.
2.1.2 The rationale of retraining governmental power is that government cannot be trusted to use power benignly and honestly at all times. Tired as it may be, the old cliché that power corrupts and absolute power corrupts absolutely is relevant in this context. Unlimited power carries the risk of abuse and constitutionalism demands that rules must be imposed in advance to ensure that government not only has power over the people but that it is also able to control itself. Setting these rules in advance means incorporating them into the constitution, that being the supreme law of the land.
2.1.3 Without these checks and balances; indeed, without these limitations on power, the consequence is that power is held exclusively by the executive and this opens the floodgates to arbitrariness and authoritarianism. Constitutionalism is the very opposite of arbitrary power. There is a high risk of arbitrary action when power is unrestrained and this circumstance places the rights of the governed at serious peril.
2.2 The Copac draft is written with the principle of checks and balances in mind and sure enough constitutionalism is one of the core principles listed in the founding values and principles of the Copac draft. The Copac draft sought to ensure that there are limitations on governmental power. Admittedly, the Copac draft does not always perform this role effectively but at least there is a serious and honest attempt to achieve this goal.
2.3 As we shall observe however, in this analysis, the ZANU PF amendments erode many of these checks and balances on governmental power, creating an Executive Presidency that is too powerful and weak institutions that should otherwise provide checks and balances on the executive.
2.4 In a series of papers, we shall compare the ZANU PF draft provisions and the Copac draft provisions and conclude that in almost all cases, the object of the changes has been to create an almost authoritarian Executive President and to sideline and generally weaken Parliament and other state institutions to the point of puppetry.
- 3. Dissolution of Parliament
3.1 ZANU PF has changed the clause on dissolution of Parliament to give unfettered discretion on the President to dissolve Parliament at any time. There are virtually no checks and balances on the use of this power. This leaves Parliament completely vulnerable and at the mercy of the President.
3.2 The original clause in the Copac Draft allows the President to dissolve Parliament only where Parliament has resolved on a vote of two-thirds majority for the dissolution of each house. The limitation is that the President cannot just make a unilateral decision to dissolve another arm of the state. Now, however, by giving the President unfettered powers to dissolve Parliament at any time, the ZANU PF amendment makes Parliament beholden to the President.
3.3 The implications of this Presidential power to dissolve Parliament at his or her whim are serious:
3.3.1 First, because the President can use this power at any time and for any reason, it means a President whose party does not have or has lost a Parliamentary majority can decide to dissolve Parliament and have fresh elections. Therefore, if a the winning President’s party loses an election, instead of facing the prospect of governing without a Parliamentary majority, the President can simply dissolve Parliament and order fresh elections, thereby negating the will of the people. A rule that allows a facility for one person to override the will of millions is patently undemocratic.
3.3.2 Second, since Parliament is at the mercy of the President, it will have to toe the President’s line or face dissolution making its role as an instrument of accountability useless. Since members of Parliament instinct is survival, they will be forced to do the President’s bidding or lose their positions. In the end, it renders Parliament a puppet of the Presidency.
3.4 If indeed the President must have this power, independent of Parliament’s resolutions, there must be a consequence on the President’s position upon the dissolution of Parliament. A check on this power could be that whenever the President dissolves Parliament, he or she must also vacate his or her seat. Indeed, on this score even the current Constitution has a better check in that it states in section 29 that the President’s tenure of office is concurrent with the life of Parliament.
The implication of this is that Presidential tenure of office is coterminous with that of Parliament and if the President dissolves Parliament before the expiry of 5 years, that will also signal the expiry of his or her own tenure of office. This means that the President’s power to dissolve Parliament has a direct consequence on his or her own position. This is an incentive for exercising the power more responsibly and honestly. However, in its present form, the ZANU PF amendment simply strengthens the hand of the Executive President while rendering Parliament weak and vulnerable.
- 4. Terms of Office of Heads Security Services
4.1 The Copac draft contains specific provisions that limit the terms of office for heads of the various security services organs – army, air force, police, correctional services, intelligence service. Under the Copac draft a person can serve in any of these offices for a maximum of two terms of 5 years each.
4.2 ZANU PF has changed this so that after serving the two terms, the service contracts can be renewed on an annual basis. This means a person can serve in these offices for an indeterminate period as long as the President renews his or her appointment on an annual basis. The net effect is that there are no limited terms for these offices.
4.3 However, what is worse about this provision for renewal of contracts on an annual basis is that it actually strengthens the hand of the President, making persons in these offices mere puppets. This is because the President holds the key to the renewal of one’s appointment on an annual basis and this makes holders of these key offices eternally beholden to the President. They have to do the President’s bidding otherwise their contracts will not be renewed. It means the Commissioner-General of Police, the army commanders and other senior security officers are effectively kept on the leash by the President. This is a very cunning way to ensure that office holders in the key security sector are perennially in the President’s pocket.
4.4 By contrast, the Copac draft does not have this risk because when a person is appointed as for example the Commissioner-General of Police, he or she knows it can only be for a maximum of two terms and nothing more. The person does not have to please the President to earn annual renewals of his appointment. But one can see the pattern in the ZANU PF amendments: it is to ensure that the President has the greatest amount of power over everyone else and to provide incentives for everyone else to toe the President’s line.
- 5. Declaration of War & Peace
5.1 The Copac draft allows the President to declare war and peace but requires him or her to seek the approval of Parliament within 7 sitting days. This is an important check on the President’s power and promotes responsible decision-making and accountability. The purpose of the approval requirement is to check and balance the powers of the President when declaring war or peace. ZANU PF has however deleted the requirement for parliamentary approval.
5.2 The Copac draft also contains a clause (11.8 (4)) requiring parliamentary approval of the deployment of defence forces outside the country but this clause has also been deleted by ZANU PF. The effect of the deletion is to remove important checks and balances in regards to the President’s use of the defence forces. The removal of parliamentary approval leaves Parliament without a role and virtually powerless. This is consistent with the object of reserving all powers in the office of the President and rendering Parliament useless.
5.3 Further, the Copac draft also made the security services subject to the authority of Parliament and the Cabinet, apart from that of the President and the Constitution. However, ZANU PF has deleted reference to Parliament and the Cabinet suggesting, in the case of Parliament that the security services are not subject to Parliamentary authority. The removal of Parliament from this particular clause demonstrates yet another instance of its marginalization whilst ring-fencing exclusive authority to the Presidency. As the representatives of the people, elected by the people, MPs and Senators surely must be able to bring security services officers and members to account, on behalf of the people.
5.4 The ZANU PF amendments further marginalise Parliament by watering down the requirements for political accountability for the deployment of the defence forces. The Copac draft requires that when the defence forces have been deployed to assist in maintaining order (internal deployment) and outside Zimbabwe, for any purpose, the President must “promptly and in appropriate detail” inform Parliament “of the reasons for their deployment” and details of where they are deployed.
5.5 ZPF have watered-down this requirement by simply requiring that the President must inform Parliament. The specific requirements to inform Parliament promptly and in appropriate details, including the reasons for the deployment have been deleted. There is no justifiable reason for dropping these specific requirements apart from lessening the President’s reporting obligations.
5.6 Finally, the Copac draft also makes provision for the establishment of the intelligence service under a law made by Parliament. The object of providing that a body like the CIO should be established in terms of a law is to ensure that the institution has a firm legal basis and operates within the confines of a law. However, ZANU PF has removed this provision leaving the power to establish an intelligence service in the hands of the President through a Presidential directive or order. Under the ZPF model, Parliament is sidelined and the President’s office takes centre stage, centralizing all powers in respect of the intelligence service.
- 6. Conclusion
6.1 This first part has demonstrated that the effect of the ZANU PF amendments to the Copac draft is to highly centralize power in the office of the Executive President and to marginalize Parliament, rendering it powerless and less effective to act as a body that checks and balances the exercise of presidential power. We have observed that under ZANU PF’s model:
6.1.1 the President has complete and unfettered discretion to dissolve Parliament at any time;
6.1.2 the President can declare war and peace with regard whatsoever to what Parliament thinks;
6.1.3 the President can deploy troops in or outside Zimbabwe without requiring parliamentary approval;
6.1.4 through the removal of term limits and the provision for annual renewals of service contracts, the army generals, police and intelligence heads are made eternally beholden to the President;
6.1.5 political accountability of the security services has been restricted to the President with the removal of Parliament;
6.1.6 the President has the power to establish an intelligence service by a Presidential order or directive and Parliament’s role to establish a law has been removed and
6.1.7 the President has complete, direct and undiluted control over all the security services and all useful checks and balances have been deleted.
As we shall observe in further analyses, the concept of limited government and the principle of constitutionalism do not feature highly in the list of ZANU PF priorities. Government must be powerful and the checks and balances on power are regarded as barriers rather than critical instruments in creating accountable government.
wamagaisa (2012) you can reach him on firstname.lastname@example.org
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