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Alexios P. Makotose: Zimbabwe constitution needs alignment not amendment

By Alexios P. Makotose

The government of Zimbabwe proposes to introduce the Constitution of Zimbabwe Amendment (No.2) Bill, 2019. The Bill proposes to make 27 amendments to the current constitution but the major changes worth highlighting are;

Peter Makotose
Peter Makotose
  • election of the President and Vice President (running mate) to the appointment of Vice Presidents,
  • increase the number of Ministers and Deputy Ministers appointed by the President, who are not members of Parliament from five to seven,
  • increasing parliamentarians by ten more youths appointed on proportional representation from the provinces,
  • delimitation of electoral boundaries to be done anytime without waiting for the population census results,
  • appointment of Judges by the President, and
  • removal of MPs from Provincial Metropolitan Councils.

Constitutional amendment means making changes to the existing constitution. In our case the new constitution has not been fully implemented or aligned by enacting laws that are in sync with the new constitution in order to complete the constitution making process fully, but surprise surprise, the government wants to make changes already.

The current constitution of Zimbabwe came as a result of a wider consultation of the people by three political parties which were in the Government of National Unity between 2009 and 2013. The Constitution Draft was approved by 94.5% eligible voters through a referendum.

Although a referendum is not legally binding, the government has a moral duty to respect the will of the people because a referendum mandates the government to act in fulfilment of the people’s preference on a particular issue.

It will be regarded as an arrogant move for any government to go against the people’s wishes, and such arrogance is however typical of a dictatorship. In this case it will be unwise for a few people in positions of power to disregard what the whole nation wants by changing the constitution to suit their own needs.

In order to amend the constitution, three thirds majority in parliament, i.e. both the House of Assembly and the Senate must vote in support of the Bill. Currently the Zanu PF party has the required three thirds majority in the House of Assembly and the Senate which is boosted by handpicked, polarised and partisan chiefs.

If the amendment bill goes through this process, then it fulfils the legal requirements to become law. Most importantly, this process must not only pass the legal test but the moral test as well. The government needs to be made aware that the move to amend the constitution must not destroy the spirit and letter in which the current constitution was written.

The Constitution writing process indicated earlier on shows that the Zimbabwean populace was involved, and they indicated their preferences. It will be morally wrong for one party to take advantage of its majority in Parliament and make a vast number of amendments to the constitution in order to consolidate power (through government institutions) by making laws that gives the ruling party a leeway to abuse those institutions.

A constitution is written by the people in order to protect them from the government and not vice-versa. The constitution is a contract between the government and the people meant to protect the people from injustices perpetrated by the government and it outlines how the people should be governed by those in power. It would therefore be morally wrong for a government to make changes to the constitution for their own benefit at the disadvantage of the people.

The opposition party MDC is a minority in parliament and therefore cannot do anything to stop the amendments except to debate, but what counts at the end of the day is the vote, that is, the number of MPs who will vote to pass the Bill or stop the Bill from being passed into law. Even if the Bill has to go through public consultation, Zanu PF strategy of staffing contributors at those gatherings is well known and difficult to deal with.

Voting in parliament follows the whipping process whereby MPs vote on party lines rather that their own instincts. Voting against party directive may lead to disciplinary action as the dissenting voices may be considered to be rebelling against the party. Therefore, it is a sure case that Zanu PF will get all what they want in this current Parliament season.

Can anything be done to stop the amendment?

Obviously, this is a ruling party decision and they have the majority in Parliament, and as long as the ruling party is determined to make those amendments, nothing raised through parliamentary debate can change their position as this might be interpreted as succumbing to the opposition’s demands. No form of resistance through debate can change the ruling party position and therefore the Bill will pass through and be signed into law.

Is there any other option to stop the amendment Bill (No,2)?

As indicated earlier on that the constitution is for the people, yes, it is therefore possible for the people who are the owners of the constitution to stand up and be counted. The owners of the constitution can rise up and demand that their participation in the formulation of the laws that govern them be respected.

Section 59 of the Constitution of Zimbabwe (2013) accords citizens’ right to demonstrate and petition peacefully. The people participated and made sure that the 2013 Constitution is what they wanted and therefore the government cannot just amend the constitution before some of the laws have been implemented.

It is that Zanu PF is getting rid of all that it did not like during the multi-party process and is making sure that the constitution aligns with Zanu PF demands. However, the people’s voice can only be valid if the government is willing to listen to the people. The President has repeatedly said that he is a listening President who operates an open-door policy and these utterances have to be put to test one day.

On his maiden inauguration, Emmerson Mnangagwa declared that “the voice of the people, is the voice of God”. His perception regarding the coining of the statement is yet to be understood and his sincerity in the statement is yet to be tested too. The Bible is clear that God’s voice must be obeyed, and anyone can disobey God’s voice at his/her own peril.

It is not clear whether it was clear in ED’s mind that failure to listen to the voice of the people is a clear disobedience to God, and when he at any point disagrees with the people, he has lost their confidence and trust to rule over them and also, the actions put his Christianity beliefs and claims to test?

The citizens always have a duty to defend the constitution. The nation’s forefathers, the likes of Benjamin Burombo, Herbert Chitepo, Joshua Nkomo, Robert Mugabe, Edson Zvobgo, Edgar Tekere, Ndumiso Dabengwa and many others including the current leadership of Emmerson Mnangagwa, Constantine Chiwenga, Kembo Mohadi and others, risked their lives by joining the war of liberation in order to defend the constitution.

Some of them scaled the borders to take part in the armed struggle for the sole reason of defending the constitution which was in favour of one minority race at the expense of the black majority. The moment the constitution matter was resolved through the Lancaster House Agreement, the fighting came to an end.

In South Africa Nelson Mandela and others sacrificed their lives in order to have the constitutional imbalances resolved. Throughout Africa various groups of democrats are fighting dictators because the constitution is crafted in a way that favours the minority and disadvantaging the majority.

If the government is out of touch with citizens’ wishes and no longer respect the constitution, then the generational mandate to defend the constitution is upon the citizens of that particular country to rise up and use their constitutional right to resolve the imbalance.

The main areas of concern in the Zanu PF Government’s amendment proposals are the areas of Presidential election, Judges’ recruitment process (whereby the President wants to maintain his influence on who sits on the bench), metropolitan governance (whereby they want the opportunity to create jobs for their party militia and gain control by the back door), and the constituencies delimitation where they have to reinforce their rigging strategy for the next election.

It is clear that the Zanu PF government is focused on positioning itself for power and preserving that power. The proposed amendments show nothing more than consolidation and solidification of Zanu PF government’s grip on ZEC and the Judiciary. This is a continuation of an election rigging project and has nothing to do with the nation’s progress towards social or economic recovery.

Whilst every citizen is grappled with the major bread and butter issues in the country and struggling to make ends meets, the whole government is busy strategizing on how to hold on to power disregarding people’s problems. The health system is dysfunctional at the moment, doctors are not at work because there is no basic equipment like gloves and they are severely underpaid, hospital wards are locked, and the government remains quiet about these fundamental issues.

The manufacturing industry is down, there is no fuel that drives the industry. The mining industry continues to be the top leakage point of the Zimbabwean economy. The constitution is clear that certain mining laws must be enacted for the purpose of alignment with the current constitution, but the government is not touching these areas for reasons known by every Tom and Jerry.

The proposal to change a vast number of sections at the same time is meant to distract people from the real changes that Zanu PF is targeting for their own advantage and benefit. All the areas that Zanu PF selected for amendment have nothing to do with the resuscitation of the economy but perpetuation of Zanu PF grip on power. Only the citizens of Zimbabwe can stand up, shout on top of their voices and stop the proposed changes that are meant to benefit only one political party.

The whole charade to amend the constitution is insignificant and just a mere perpetuation of command institutionalisation. The fundamental constitutional action required in Zimbabwe at the moment is constitutional alignment and not amendment.

There are a number of Acts that are not in sync with the 2013 Constitution. Some of the Acts date back to colonial period and nothing has been done to those laws since independence until this new ‘error’ called ‘new dispensation or 2nd republic’ born out of a coup which was not a coup.

The constitution has sections that are clear on further legislation required, but the government is turning a blind eye on those areas. For example, section 315 of the constitution requires further legislation to regulate procurement and other government contracts. Your guess is as good as mine on why this is an untouchable area with the current regime.

Alexios P. Makotose [LLB, LLM], Legal Affairs Secretary, MDC UK and Ireland Province