Big Saturday Read: Critical reflections on Constitutional Amendment No. 1
This week marked an historic moment when the National Assembly voted to amend the Constitution of Zimbabwe for the first time since it was popularly adopted at a referendum in March 2013. The amendment (Amendment No. 1) was not without controversy, not least because of the political context in which it was introduced and its effect on the balance of power and constitutionalism. In this article, I analyse this historic moment and what it means for the future of the constitution and Zimbabwe.
Summary of Amendment No. 1
The amendment has two major effects:
First, it changes the manner in which senior members of the judiciary are appointed. These senior judges are the Chief Justice (CJ), the Deputy Chief Justice (DCJ) and the Judge President (JP), who is the head of the High Court.
Second, it changes the status of the Labour and Administrative Courts. The Constitution had placed these two courts at par with the High Court. The amendment makes them subordinate to the High Court.
However, it is the first point that has drawn more attention and controversy and to which greater focus will be given in this article.
To appreciate the changes introduced by Amendment No. 1, it is useful to explain the appointment process before the amendment. All judges, including the CJ, DCJ and JP were appointed by the President from a list of recommendations made by the Judicial Services Commission (JSC) following a public interview process. When a vacancy arose, the JSC was required to make a public call for the nomination of candidates. This meant any person could nominate a suitable candidate for the vacancy. The President was also entitled to nominate candidates. The JSC would draw a shortlist before conducting public interviews from which suitable candidates would then be recommended to the President. The President could reject the first list submitted by the JSC but he was obliged to nominate from the second list. As is evident, this process was open, transparent and inclusive. The power to choose judges was not in the hands of one person or institution. It was shared.
Amendment No. 1 changes this procedure in respect of the appointment of the CJ, DCJ and JP. These judges will now be appointed by the President after consultation with the JSC. The President is not obliged to follow the advice of the JSC. If his choice differs from that of the JSC, he is only required to inform Parliament. There are no further consequences. In short, the President has a broad discretion to choose his own candidate. There is no filtering or checking mechanism.
The difference between the two procedures is clear. The new procedure introduced by Amendment No. 1 gives more powers to the President in the appointment of senior judicial officers who are in charge of the judiciary. First, whereas he was bound to select from a list submitted by the JSC, he is now free to completely ignore the JSC’s advice on appointments. Second, whereas the old procedure involved public interviews, the new one has dispensed with the need for such interviews. Third, whereas the old procedure was open and transparent, the second will be opaque and secretive. Fourth, whereas the old procedure provided room for public participation in the nomination of candidates and as the audience during public interview in recognition of the fact that all judicial authority derives from the citizens, the new method completely excludes the public. Finally, whereas the old procedure had checks and balances on presidential powers, the new procedure leaves the President with excessive discretionary powers. All in all, the President now has more power to control the leadership of the judiciary without serious checks and balances than he did under the old procedure.
Constitutionalism is one of the cardinal principles of constitutional law. It encapsulates mechanisms and systems designed to limit the power of government. Implicit in this principle is recognition of the potential abuses of governmental power, particularly by the executive and that this abuse must be curbed. It requires mechanisms to ensure that powers of the executive are limited by law. The ultimate representative of governmental power is the President, as head of the executive. Good constitutions ensure that there are sufficient mechanisms to keep the President’s powers in check. These are also referred to as checks and balances.
There are many examples of such checks and balances, both within and outside constitutions. The Declaration of Rights (also referred to as the Bill of Rights) guarantees fundamental rights and freedoms which the government is obliged to protect, promote and fulfil. It represents areas from which governmental power is excluded. In some cases, it is referred to as a Bill of Prohibitions in that it specifically prohibits the state from doing certain things in relation to individual rights. Hence the right to liberty means the state cannot be arrested unless the due process of law is followed.
The courts also provide checks and balances of executive power – if an individual is aggrieved by the conduct of government, he can approach the courts for redress. The courts review the conduct of government. This is why the right to a fair hearing is fundamental.
The media, often referred to as the Fourth Estate, also provides checks and balances on governmental power. The media reports on and scrutinises governmental conduct, keeping the public informed and the politicians in check. This is why media freedom is specifically protected in the constitution.
The rule of law is also an important principle that helps check and balance governmental power. It discourages retrospective legislation, so that governments do not penalise past conduct. It does not permit discrimination, so that laws are applicable equally to everyone.
Parliament is an important institution that provides checks and balances against the executive. This is why it has the power to make laws. Parliament also has portfolio committees, which regularly summon ministers and other public officers to answer questions on issues of concern and interest.
All of the above are checks and balances that form a wider framework designed to promote constitutionalism. It is in this context that the controversy that ensued following the announcement of Amendment No. 1 must be understood. The process of appointing judges under the 2013 Constitution was part of this framework of checks and balances designed to limit the power of the executive. One of the core pillars that informed the constitution-making process was that executive power must be limited. In other words, people wanted more checks and balances on presidential power. A key area of concern was the power of the President to make appointments. There was a loud call for more checks and balances in this regard. People wanted appointment processes to be open, transparent, more consultative and fair so that the best candidates were selected for the relevant posts.
The negotiators and drafters discussed various methods and mechanisms of capturing this key demand from the people. Precedents from other countries were also considered to find the best possible ways of promoting constitutionalism in constitutional appointments. It was clear that people did not want the President to have all the powers but that there had to be a mechanism to control his power.
At one stage, it was proposed that there should be a body called the Parliamentary Public Appointments Committee (PPAC). The main function of this parliamentary committee would have been to participate in the interviews and approval of candidates for appointment. It would have had a role across most of the senior appointments, including such offices as judges, the Attorney General, Prosecutor-General, commissioners of independent commissions such as ZEC, the Auditor General, etc. In the end however, this body was not adopted. Different mechanisms of the appointment of different public officers were adopted. For judges, the method involving nominations by the public and public interviews of candidates by the JSC was adopted. The President would eventually make a choice but only from a list submitted by the JSC. In these ways, the power of the President in the appointment of judges was limited. It was not perfect but it was an effort aimed at promoting checks and balances in the appointment of judges.
Now, however, this has been lost in respect of the CJ, DCJ and JP, the most senior members of the judiciary. There is no doubt that it is a step backwards as far as constitutionalism is concerned. It’s a step back from an inclusive process in which members of the public and JSC had an active role to a process where the President has unchecked power.
The retrogressive character of Amendment No. 1 against the standards of constitutionalism is quite apparent. In addition, it was soiled by the controversy surrounding its introduction in December 2016. The amendment came right in the middle of an on-going process of appointing the Chief Justice. The then Chief Justice (now late) Godfrey Chidyausiku was due to retire at the end of February 2017, upon reaching the mandatory retirement age of 70. In preparation for this known fact, the JSC began the process of selecting his replacement.
In October 2016, the JSC made a call for nominations from members of the public and the President. Early December, the JSC announced 4 nominated candidates who were due to be publicly interviewed. However, a day before the interviews, one Romeo Zibani made an urgent chamber application seeking to stop the interviews pending a change in the interview process. Justice Hungwe, who heard the matter granted an order in favour of Zibani. This would have stopped the interviews. However, the JSC immediately appealed to the Supreme Court, the effect of which was to suspend Justice Hungwe’s judgment.
The interviews therefore went ahead as planned. However, one of the candidates, Justice George Chiweshe absconded. The reason for not turning up has never been made public. At the interviews, Justice Luke Malaba emerged as the best performer, followed by Justice Makarau, with Justice Garwe in third place. Interestingly, when Zibani brought his application, the Minister of Justice, who might have been expected to defend the Constitution did not put up any serious defence. Instead, it emerged that the Ministry was sponsoring a constitutional amendment which curiously was generally in sync with what the applicant Zibani was seeking. This and other circumstances gave rise to suspicion that Zibani’s application was sponsored in order to delay the interviews while the Ministry brought the amendment which would have removed the need for interviews. It suggested that there were some interested parties who were not comfortable with the public interview process and therefore wanted to avoid it at all costs, hence the litigation. The fact that Justice Chiweshe abandoned the interviews did not help matters.
In any event, the JSC submitted its recommendations to the President. Thus there was a situation in which there two parallel processes at the same time: the first in which the appointment was going ahead and another in which that process was being amended. The drawback for the pro-amendment group was that a Constitutional Bill has to follow a strict procedure guided by specific time limits. It could not be rushed to overtake the appointment process. In the end, President Mugabe appointed Chief Justice Malaba, the man whom the public process had shown to be the best candidate. To deny him would have been a travesty of justice. His appointment, if anything, demonstrated the value of the public process – the appointment was on merit and this was made possible by the fact that it was performed in full glare of the public.
Meanwhile, the process of amending the Constitution went ahead. The sponsors of the amendment were confident they would get the amendment because ZANU PF has a two thirds majority in Parliament which it won in the 2013 elections. The constitutional threshold for amending the bulk of the constitution is that an amendment must be supported by at least two thirds majority in the National Assembly and Senate. ZANU PF has the advantage that it has this threshold in both Houses of Parliament. This is why when it came to the vote on Tuesday 25th July 2017, it was easy for ZANU PF to meet the threshold, even with some of its members not in attendance.
There is an erroneous and highly misleading line of reasoning that has been doing the rounds on social media that somehow the parliamentary opposition would have stopped the passage of Amendment No. 1 if the MDC-T had not expelled some of its members when it split in 2014. The MDC-T expelled some of its members who had rebelled and formed another party in 2014. However, neither the party nor the expelled members took part in the subsequent by-elections, which were all won by ZANU PF. This was seen as a “donation” of seats to ZANU PF given that these seats were in opposition strongholds. These decisions – the rebellion, expulsion and boycott of by-elections - were controversial and perhaps without wisdom. But would it have made a difference had the MDC-T kept those seats?
Some people think it would have made a difference and that the “donated” seats gave ZANU PF more leverage. They are wrong. This view is not supported by the objective facts. They are completely wrong because whether or not the opposition had kept the seats, ZANU PF would still have had a two thirds majority which it won in the 2013 elections. It’s important to note that ZANU PF’s two thirds majority was already there before the so-called “donation”. Even if the MDC-T or opposition generally had retained all the seats, they would still not have been able to overcome ZANU PF’s two thirds majority. There are many good reasons to criticise the opposition over the way they handled those seats but it’s important to debunk the myth that they would have made any difference to the passage of Amendment No. 1. Even in its fractured state, ZANU PF would still have been able to summon enough MPs to support the Bill. There is a lesson here too for the opposition, that whatever their differences, when faced with a common enemy and a common goal, ZANU PF factions generally close ranks to protect their interests.
This leads to an important outcome: whatever happens at the elections in 2018, it is dangerous to the Constitution for any party to hold a two thirds majority in Parliament. As I have pointed out, two thirds majority is the minimum threshold required to amend the Constitution and having two thirds majority in the hands of a ruling party is a danger to the Constitution. Given how ZANU PF has behaved in regards to Amendment No. 1, the nation can only fear more such changes should it win by two thirds majority next year. They were probably too embarrassed to use their majority so soon after the new Constitution was adopted in 2013, but they will probably go into overdrive should they retain two thirds majority in 2018. This means as a matter of strategy, in the absence of outright victory in 2018, the opposition must at the very least target preventing a two thirds majority for ZANU PF.
ZANU PF’s move to amend the Constitution has caused consternation in various sectors. People are worried that ZANU PF will go on a constitutional amendment spree. This is an important worry, given that as a negotiated document, the Constitution contains aspects that ZANU PF never liked. Devolution is one of those areas, which it has ignored during the entire term of office since 2013. If ZANU PF gets a two thirds majority in 2018, it might introduce a second raft of more drastic amendments to the Constitution. However, there are some areas that are specially protected, where even a two thirds majority alone would not suffice. These areas are Chapter 4, which contains the Declaration of Rights, Chapter 16 which deals with land issues and the term limits provision. Any amendment of the Declaration of Rights or Chapter 16 or Section 328 requires a referendum, in addition to the two thirds majority threshold required in Parliament. Therefore, any amendment that affects fundamental rights and freedoms would have to be approved by Zimbabweans in a referendum. It’s not easy or cheap to organise a referendum, and there is no guarantee of success.
A word on the term-limits provision is necessary. In other countries, it has been observed that constitutional term limits are easily changed when an incumbent wants to extend his term of office. This has happened recently in countries like Rwanda and Uganda. The term limits provision was one of the important demands from the people during the constitution-making process. But we also wanted to make sure it was protected from easy amendments to suit the whims of an incumbent. The mechanism chosen was to remove incentives for an incumbent to extend his or her own term. This is what section 328(7) of the Constitution states:
“Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
The way this provision operates is that if there is an amendment to the term limit provision, any extension will not benefit the incumbent. By way of example, if the term limits provision is removed or extended during President Mugabe’s current tenure, it would not apply to him. It would not benefit him but would only apply to his successor. Of course, would-be successors might wish to change it but they would have to convince the incumbent that it is in his interests to remove term limits.
Since there is a risk that this provision that protects term-limits can be amended, it is also given further protection which I must explain. It is that this provision cannot be amended unless it is put to a referendum. This provided for in section 328(9) which provides that the whole section may only be amended following the strict procedures applied to the amendment of the Declaration of Rights. It states: “This section may be amended only by following the procedures set out in subsections (3),(4), (5) and (6), as if this section were contained in Chapter 4.” These are onerous provisions which make amendment of the term limit provision onerous and there is little incentive for an incumbent since he or she cannot benefit from the changes. In other words, the long and cumbersome procedure required for the amendment of fundamental rights and freedoms has to be used. This means not only securing a two thirds majority but putting the amendment to a referendum for approval.
Some people would have us believe that the 2013 Constitution is a bad constitution because it gives too much power to the President. Why then is the ZANU PF government amending the Constitution to give the President more powers? The Constitution is by no means perfect, but efforts were made to limit the powers of government. This is why the process of appointing members of the judiciary was supposed to be done openly and transparently through public interviews. It worked very well during the appointment of the current Chief Justice. The best candidate won the contest. It was open, transparent and fair. There is no better evidence to support the procedure that was crafted under the 2013 Constitution, which sadly has now been removed by Amendment No. 1.
Some people say the procedure was improper because it allowed juniors to interview their superiors. This argument is both dishonest and disingenuous. By far the majority of members of the JSC which carried out the interviews are not members of the judiciary contrary to what advocates of Amendment No. 1 were saying. In any event, it is not unusual for interview panels to include persons of all ranks in an organisation. It does not diminish the credibility of the process, if anything, inclusivity enhances it. As already stated, the process followed in the appointment of Chief Justice Malaba shows that the procedure works. It was indeed a sad day for constitutionalism. Instead of limiting government, Amendment No. 1 expanded its powers. After taking a step forward in 2013, we have gone backwards. The danger is that if ZANU PF wins in 2018 and gets two thirds majority in Parliament, we might as well start reading the last rites for the Constitution.