Constitution of Zimbabwe Amendment (No. 2) Bill, 2019.

 Title: Submissions on the Constitution of Zimbabwe Amendment (No.2) Bill, 2019.

Author: Blessed Mupatsi

Assisted By: Mbonisi Siziba 

(N.B these are the views of the author in his personal capacity). 

Date: 18 June 2020.

Contact: +263 717049676 or +263 717726218 email: blessedmupatsi@gmail.com.

INTRODUCTION.

Zimbabwe has entered a time of Constitutional reform with the arrival of the Constitution of Zimbabwe Amendment (No.2) Bill, 2019 (hereinafter referred as “the Bill”). These submissions are made in terms of section 328(4) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (hereinafter referred to as “the constitution”). The mandate of this paper is to raise protest regarding the amendment of section 180 of the constitution. Sentiments expressed on various platform of communication suggest that the Bill is a threat to basics principles of a democratic state which include separation of power, doctrine of check and balance and moreso, the amendment gives the president absolute powers.

SUBMISSIONS.

AMENDMENT OF SECTION 180 OF THE CONSTITUTION- APPOINTMENT OF 

JUDGES.

Section 180 (“Appointment of judges”) of the Constitution is amended—

(a) in subsection (4) by the deletion of “Whenever it is necessary to appoint a judgeother than the Chief Justice, Deputy Chief Justice or Judge President of the High Court” and the substitution of “Subject to section (4a), whenever it is necessary to appoint a judge other than the Chief Justice, Deputy Chief Justice, Judge President of the High Court or a sitting judge of the Supreme Court or High Court,”;

(b) by the insertion of the following subsection after subsection (4)—

“(4a) Notwithstanding subsection (4) the President, acting on the recommendation of the Judicial Service Commission, may appoint a sitting judge of the Supreme Court or High Court to be a judge of a higher court whenever a vacancy arises in such court.”

The process of the appointment of judges is a key factor in guaranteeing Judiciary independence and where the appointment process is entirely in the hands of politiciansthe judges are likely to be appointed based on political allegiance thus, the judges are unlikely to be independent of the executive. For the Judiciary to be independent appointment of judicial officials should not depend on uncontrolled ministerial patronage and judges should be free from improper attempts by ministers, members of Parliament to influence the results of cases under adjudication see Brazier R, Constitutional Reform; Reshaping the British Constitutional System, 2nd Edition 1998, page 172.

This amendment violates the doctrine of Separation of powers as advocated by John Locke and Montesquieu. The concept of separation of powers divides the institutions of government into three branches: legislative, executive and judiciary where the legislature makes the laws, the executive put the laws into operation, while the judiciary interprets the laws. The doctrine of separation of powers ought to be built into the fabric of all good modern constitutions see Greg Linington; 2012, “Reflections on the significance of constitutions and constitutionalism for Zimbabwe”, page 63 in “Zimbabwe Mired in Transition”. Where the judiciary and the executive unity in the same body there is no liberty and people became subject to arbitrary control. The Bill wants to spoil the gains of the constitution. Furthermore, the amendment violates a founding value and principle of the constitution: 

3. Founding values and principles.

(2) The principles of good governance, which bind the State and all institutions and 

agencies of government at every level, include—

(e) observance of the principle of separation of powers;

In the South African case of In Re Certification of the Constitution 1996 (4) SA at 810, it was said, “No constitutional scheme can reflect a complete separation of powers. 

The scheme is always one of partial separation.” However, in this scenario there is zero reflection of the doctrine of separation of power between the judiciary and the executive.

In addition to the above, the amendment will not uphold the doctrine of check and balance. The constitution creates mechanisms that promotes the system of checks and  balances. When these three organs of a government are independent there are able to check and balance each other see Ville M.J.C, Constitutionalism and the separation of powers (1967) Oxford University Press page 13. The checks and balances  system may lead to greater accountability between the three arms of government and  such accountability helps check against abuse of power see Currie et.al. The New Constitutional and Administrative Law. Vol 1 (2001) Juta page 95. The Bill does not uphold the doctrine of checks and balances since the executive have the power to appoint the judiciary. Thus, if the Bill passes into law there are greater chances of abuse of power and zero accountability since the judiciary is captured. Moreso, zero accountability violates a constitutional provision see section 3(2) (g) of the constitution: 

3. Founding values and principles.

(2) The principles of good governance, which bind the State and all institutions and

agencies of government at every level, include—

(g) transparency, justice, accountability and responsiveness;

When the Judiciary is not independent how will it enjoy its responsibility of reviewing and examining the constitutional validity of the decisions of the legislature, the executive and administrative agencies of the state see Diescho J.B, The paradigm of an  independent judiciary: Its history, implications and limitations in Africa. In Horn N  and Bosl (eds) The Independence of the Judiciary in Namibia (2008). Judicial  review is a mechanism for the protection and enforcement of democratic values and  norms and fundamental human rights which otherwise can be ignored by politicians in the executive see Justice A. Mavedzenge and D.J. Coltart: A constitutional law guide towards understanding Zimbabwe’s fundamental Socio-Economic and Cultural Human Rights (2014) page 17-18. Therefore, when Judiciary is dependent democracy becomes vulnerable, as they cannot nullify decisions, conducts or act don  by the executive. Thus, principles of constitutional law such as supremacy of the constitution see section 2 of the Constitution becomes a myth. Therefore, the Bill is a threat to the democratic society established by the 2013 Constitution.

 The amendment gives the president absolute powers by allowing him to appoint Judges including the Chief Justice. Already the legislature as per section 116 of the Constitution consists of the Parliament and the President thus; one can argue that our parliament is a dependent organ of the executive. The amendment seeks to make the situation fatal by giving more powers to the President as he has the power of appointing the judiciary. 

The Bill does not intend to limit the powers of the executive thus, the doctrine of constitutionalism is not uphold. Constitutionalism does not mean mere adherence to the constitution. It is necessary to limit governmental power as politicians can be immature and emotional and can change the country’s fundamental values to suite their partisan interests see Greg Linington (2012). The Bill does not guarantee constitutionalism. 

CONCLUSION. 

In conclusion, the Bill violates constitutional principles of a democratic state such as separation of power, the doctrine of checks and balances among others. Moreso, the Bill is likely to spoil the gains of the 2013 Constitution, as it does not guarantee the right to liberty. The Bill is a threat to the democratic society established by the Constitution, as it will not guarantee constitutionalism. In addition, this Bill is inconsistence with the constitution thus; it is invalid see the case of Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O & Ors CCZ 12/15 at p47. I will conclude by saying the words of my constitutional law lecturer a constitution that does not provide these feature does not deserve to be a constitution.

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