Big Saturday Read: Critical Review of Constitutional Amendment No. 2 (Part 2)
This is the second part of a critical review of proposed amendments to the Constitution of Zimbabwe. The first part of this review explained the general reasons that are usually advanced for and against amending constitutions. We observed that while the constitution is not immune to amendments, attempts to change the constitution must be subjected to critical scrutiny. Any nefarious agenda behind amendments must be exposed and where possible alternatives must be offered. This is what this part of the review seeks to do.
Since the issues are diverse, for purposes of convenience I have subdivided the analysis into two further parts. This part critically reviews proposed amendments to the following areas: the vice presidency; the appointment of the judges and the Prosecutor General and the role of Parliament in respect of international agreements.
The common theme in the proposals to amend the Constitution in these areas is the enhanced concentration of power in the hands of the President coupled with a dilution of the system of checks and balances. This includes a diminution of judicial independence and prosecution authorities and a reduction in the Parliament’s oversight role.
The third part which will be published on Sunday will critically review the remaining proposed amendments: extension of the women’s quota in Parliament, the introduction of the youth quota in Parliament, changes to the marking of electoral boundaries; amendments to the devolution provisions and the introduction of a Public Protector.
Checks and balances
As we saw in Part 1, opposition to constitutional amendments is sometimes based on fears that changes signal a return to an old path of authoritarianism. Path dependency theory suggests that when a regime which is inclined towards highly centralised authoritarian rule starts making changes to the constitution, it is to facilitate a return to the authoritarianism route. People look at proposed amendments and ask rhetorically: haven’t we seen this before?
The principle of checks and balances essentially refers to institutional mechanisms created to keep the exercise of public power in control. This is necessary to prevent the moral hazard of abuse of public power. A good constitution is one that has institutions, rules and principles that keep the exercise of public power in control. It will be argued that the proposed amendments largely reflect moves towards enhancing presidential powers and removing checks and balances. These changes are done in the name of correcting current constitutional provisions but their impact is far-reaching and has the effect of upsetting the balance of power between the different arms of the state.
One area in which the Constitution seeks to contain presidential power through checks and balances is in respect of senior public appointments to key offices of the State. The old constitution before 2013 gave the president almost excessive and largely unrestrained powers to make senior public appointments. Where the president was required to consult another person or body, he had no obligation to follow that advice. The processes of appointment were opaque and lacked accountability. Without checks and balances, the system encouraged nepotism, patronage and corruption. This resulted in institutions which were largely captured by the presidency.
The 2013 constitution was designed to prevent this mischief. It introduced a new process of appointing senior public officers so that they would be done in an open, transparent and accountable process. In making such appointments, the President would be obliged to take the advice of consultative bodies. In short, the appointment process evolved from being opaque and exclusively in the hands of the president before 2013 to a more open, consultative, co-operative and collaborative process. This is now set to change and revert to the old process due to the proposed amendments.
Appointment of judges and the Prosecutor General
To understand the reactionary nature of the proposed amendments, let us look at the proposals regarding the appointment of serving judges to the Supreme Court and the Constitutional Court and the Prosecutor-General. Before 2013, the President made appointments to the judiciary after consulting the Judicial Service Commission (JSC). He had no obligation to consult anyone when appointing the Attorney General, who had the prosecution mandate. The 2013 Constitution changed this so that the appointment of judges and the Prosecutor General would be done after an elaborate public interviewing process conducted by the JSC. The public can nominate candidates along with the President. Thereafter, the JSC would make recommendations from which the President would make the final appointments.
This process was designed to make the appointments more open and transparent and to encourage meritocracy while reducing patronage. Aspiring candidates would be put to the test in public and there would be no place to hide for the ill-equipped. It also meant the advice of the JSC would be meaningful and consequential, compared to the old system where its recommendations could be easily ignored and never be known by the public. Now, however, the President had to make an appointment from a list of candidates recommended by the JSC. It would also give confidence to judges and the PG knowing that they do not owe their position to the benevolence of one person but that they would have proved their merit through an open and rigorous interview process.
Indeed, the reason for splitting the old Attorney General’s functions to separate the civil advisory role and the prosecution role was to enhance the independence of the PG. Therefore, the President retained the exclusive discretion to appoint the AG – the government’s legal adviser, while the appointment of the PG was to be done in terms of the more rigorous lines of appointing a judge. It was a recognition of the fact that the prosecution function needed to be protected from the overbearing influence of the President. The appointment had to be based on merit demonstrated through a public interviewing process.
The proposed amendments seek to change all this in respect of serving judges and the PG. They will no longer have to go through the public interviewing process. Instead, the promotion of serving judges to the Supreme Court or Constitutional Court will now be at the sole discretion of the President. Although the President must consult the JSC, there is no obligation to follow their advice. The proposed amendment takes Zimbabwe back to the pre-2013 constitutional dispensation where the President had a disproportionate amount of control of the judicial appointment process. This reversal is counter-productive and reactionary, conferring as it does too much power into the hands of the President.
The change also affects the appointment of the Prosecutor General. As with serving judges, the appointment of the PG will be removed from the public, transparent and more accountable process to an opaque process at the discretion of the President. This appears to be a reaction to the embarrassment that the President faced when his preferred candidate at the last round of the appointment process did not perform well in the interviews.
President Mnangagwa eventually got his way but at the cost of great embarrassment since it was clear that he had ignored better-performing candidates. This public embarrassment is precisely what the public process was designed to cause so that it would be a disincentive to corruption and patronage. The proposed changes to the Constitution are designed to prevent such public embarrassments, not to enhance the quality of the appointment process. To the extent that changes are designed to enhance presidential power, they go against the founding values of the constitution.
Haven’t we seen this before?
Concerns over these amendments are heightened by the fact that they come hot on the heels of the first amendments to the Constitution in 2017 which brought changes to the appointment of the judiciary’s three most senior offices – the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court. The 2013 Constitution required each of these posts to be filled by a candidate chosen through a public interviewing system. Constitutional Amendment Act (No. 1) changes this process thereby making such appointments at the discretion of the president. The new process removed the public interviewing system.
The change meant Zimbabwe reverted to the old system where the power to appoint senior judicial officers was in the hands of the President, without any serious checks and balances. The proposed amendments seek to extend the president’s power of appointment to the rest of the Supreme Court and Constitutional Court. It creates a second route for the appointment of Supreme Court and Constitutional Court judges: the President’s fast and opaque lane where he can appoint from serving judges without getting them through public interviews and the JSC’s slow and transparent lane where vacancies are publicly advertised and candidates are subjected to a public interviewing process.
This dualisation of the route to the superior courts is both unjust and unnecessary. The President’s candidates will obviously have an unfair advantage over candidates from the open process. There is no justifiable reason why serving judges should not go through the same rigorous scrutiny as other candidates for similar posts. The public interviews conducted for similar roles since 2013 have shown that not every serving judge is equipped for the vacancies in higher courts. Indeed, the public interviewing process for candidates to the post of Chief Justice in 2017 may have embarrassed some of the senior judges who participated in it, but it also ensured that it was based on merit.
The government has not made a persuasive case for changing the appointment process. Serving judges will probably not be complaining as it saves them from public scrutiny that comes with public interviews. But the changes promote patronage, with favoured judges getting the nod ahead of others regardless of competence. It compromises meritocracy while concentrating power in the hands of the President.
Changing the retirement age of judges
Current constitutional provisions set the maximum age limit of judges at 70 years. This applies across the board, without exception. The adoption of the age-limit was to ensure certainty and fairness in the retirement process. It would also protect the independence of judges as their tenure of office would not be dependent upon the discretion and benevolence of any other party. This is because there would be no other consideration apart from age. Independence is determined not only at the entry point or terms of service during the tenure of office but also at the departure point. The availability of an option to remain in office for another 5 years creates a serious moral hazard.
The moral hazard is that it confers power upon the president who would have to accept or reject exercise of the judge’s option to remain in office. The medical certificate is of little consequence as no judge would exercise the option to remain in office if he would not get a favourable medical opinion. This leaves the President as the only person with real power over the fate of a judge beyond his 70th birthday This makes the judge beholden to the president, even well before the exercise of this option as he would have to remain in good books with the president if his option is to be accepted.
Therefore, the law should remain where it is: the retirement maximum retirement age at 70. If the object is to extend the retirement age without compromising judicial independence in future, then the retirement age should simply be raised to 75.
Amendment does not benefit current judges
However, for the avoidance of doubt, it should be noted that any extension to the age limit provision does not apply to the current judges. This is in line with section 328 of the Constitution which provides that “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 to any person who held or occupied that office, or an equivalent office, at any time before the amendment”. A “term-limit provision” is defined as “a provision of this Constitution which limits the length of time that a person may hold or occupy a public office”.
The provisions which set the maximum age limit of judges limit the length of time that a person may hold or occupy the office of a judge, which is a public office. The constitution-framers were deliberate in including section 328. It was to prevent self-serving incumbents from amending term-limit provisions in a way that would benefit them or anyone who was already in post. Even if the proposed amendment giving judges an option to remain in office for a further 5 years passes, the current crop of judges cannot use it. Only judges appointed after the amendment is passed would be able to make use of it.
Vice Presidency: Abolishing the running-mates’ provisions
The proposed constitutional amendment seeks to abolish the running-mates provision in the Constitution. To appreciate the effect of the removal of these provisions, it is important to give a background to the original design of the presidential system and why the running mates provision was part of it.
The provision requires a presidential candidate to nominate two persons as his running mates in an election. In the event of victory, these running mates automatically become the first and second Vice Presidents. This creates a clear hierarchy in the presidency while also ensuring a smooth and more democratic succession in the event of a vacancy in the presidency. It is more democratic because the Vice President who succeeds the President would have been nationally elected and therefore will have a national mandate. Under this system, the removal of a Vice President from office is governed by the same rules that apply to the President. However, this running mates’ system was suspended for 10 years from 2013 and was, therefore, due to expire in 2023.
The proposed amendment seeks to change the system so that the Vice Presidents will be appointed by the President. In effect, the amendment will ensure that the Constitution reverts to the old constitutional dispensation where Vice Presidents were presidential appointees. They could be hired and fired at the President’s discretion. Should a vacancy arise in the presidency, the Vice President who was last to act takes the leadership on an interim basis while the party of the departing President selects a permanent successor. Thus the successor is not a national affair but a party determined process. This is the same system that has been in operation while the running mates’ system is suspended.
Why is the running mates’ system that has not even been implemented being removed prematurely? One of the fears motivating this change is that it creates a powerful Vice Presidency and therefore more than one centre of power in the country. The change is driven by self-interest among the current political protagonists in ZANU PF in which different factions do not trust each other and are vying for power. In a normal situation, there should be no mistrust between a President and his deputies because a presidential candidate would have used his personal discretion to choose his running mates whom he trusts and believes in. Also, in a normal situation, a Vice President has no incentive to disrupt his boss because it creates a moral hazard for him if he becomes President. He would always face the same risks of disruption from his deputy and no-one wants to build that culture in the presidency.
The running mates’ provision has always been a victim of succession politics from the beginning, which is why it was suspended for 10 years at the eleventh hour of the constitution-making process. The fear among ZANU PF protagonists was that its operation in the 2013 elections would have favoured Joice Mujuru, who would have become Mugabe’s first running mate and first Vice President at the 2013 elections. Attempts to sack her would have been difficult. The opposition did not have a great incentive to defend the running mates’ provision and used its suspension to get other concessions from ZANU PF.
The running mates’ provision could have had a major impact on our political culture. It would have created a presidency that is nationally elected and a succession plan that is clear, straightforward and arguably more democratic. The fear that they would have created competition and conflicts within the presidency is exaggerated. Zimbabwe is not the only country that would have used this system and the President, and his deputy usually work in collaboration than in competition with each other. The only reason why these provisions are being removed is the same reason why they were suspended in the first place: managing succession politics in ZANU PF. Amending the constitution to manage short-term political schemes is short-sighted and reactionary.
Diluting Parliament’s role in fiscal governance
In Part 1, I argued that ill-thought-out amendments can result in tensions with other parts of the Constitution. This may be because of clear contradictions or inconsistencies between provisions. As Kathleen Sullivan argued, “inconsistencies may have the unintended consequence of undermining the unity and coherence of the document as a whole …” The proposed constitutional amendments contain elements that result in tensions with other parts of the Constitution.
For example, Clause 23 of the Bill seeks to amend section 327 of the Constitution which applies to the adoption of international conventions, treaties and agreements by removing the terms “foreign organisations or entities” and replacing it with the term of “international organisations”. The explanation given for this sounds an innocent and innocuous correction but the effect is far-reaching and disruptive of the system of checks and balances. The Bill states as an explanation that “This clause uses the defined term “international organisations” in subsection (3)(a) instead of “foreign organisations or entities”, which term is undefined in the Constitution.”
It is true that the term “foreign organisations or entities” is not defined while “international organisations” is defined in the provision. However, if the absence of a definition is the sole reason for the amendment, it is false and inadequate because if a definition was necessary, the amendment would be adding the missing definition of “foreign organisations or entities”. The reality is that the removal of this term is motivated by more sinister intentions. To appreciate the sinister character of the amendment it’s important to understand what section 327(3)(a) provides for.
This provision specifically applies to an agreement that is not an international treaty. It is an agreement which imposes fiscal obligations on Zimbabwe between the President or his authorised agent and a foreign organisation or entity. Such an agreement must be approved by Parliament before it becomes binding on Zimbabwe. The purpose of this provision is to ensure there is parliamentary oversight and control concerning financial agreements between Zimbabwe and foreign creditors.
The designers of the Constitution were quite deliberate in designing this provision: where financial obligations are imposed on the country, there is no need to limit the meaning of the term “foreign organisations or entities” by defining it and Parliament must exercise checks and balances to make sure that the nation is not unduly burdened by the fiscal recklessness of the President and his agents. By restricting the meaning to “international organisations” as narrowly defined in the clause the government is effectively reducing the role of parliament and seeking to bind the nation to fiscal obligations with foreign entities without parliamentary scrutiny.
The change is also in tension with section 300 of the Constitution which provides more generally for parliamentary oversight in respect of state loans and guarantees. It allows Parliament to set limits on how much the state can borrow or guarantee. The limits should not be exceeded without the approval of the National Assembly. The government is also required to publish terms of the loan or guarantee in the Gazette within sixty days after the conclusion of the loan agreement or guarantee. However, section 327(3)(a) went further than that and complemented these provisions. Whereas section 300 is about disclosure of terms and approval to exceed debt limits, section 327(3)(a) requires parliamentary approval of any agreement which imposes a fiscal obligation.
The government has not complied with section 327(3)(a) in all its agreements that it has concluded with organisations like AfreximBank despite such agreements imposing fiscal obligations upon the nation. But why has it consistently ignored Parliament when it has had a two-thirds majority and therefore the numerical power to get approval since 2013 when the Constitution was adopted? The answer lies in the attitude of a kleptocratic government that finds the provision which requires transparency inconvenient. It does not even want a friendly Parliament knowing details of the transactions that it is concluding with foreign organisations and entities.
Overall, the proposed amendment is more than a correction of words. It is a fundamental revision of the system of checks and balances set out in the original constitution and therefore another example of the government taking the familiar path of authoritarianism. To that extent, it undermines the basic principles of the Constitution - transparency, accountability and separation of powers.
In this second part of the critical review we have observed the following:
Proposed changes to the appointment of serving judges of the Supreme Court remove checks and balances on presidential powers and brings back an opaque and unaccountable process which had been abandoned in 2013;
Proposed changes to the appointment of the Prosecutor-General also remove the checks and balances including transparency and meritocracy which were introduced in 2013. The changes are a return to the days of opaqueness and unaccountability in the appointment process;
Proposed changes to the retirement age of judges are unnecessary and appear to be motivated by short-term considerations. In any event, it has been argued that a proper interpretation of the Constitution means that these changes do not apply and will not benefit the current crop of judges;
Proposed changes to the running-mates provisions are also guided by short-term political considerations in the management of party political factions;
Proposed changes to international agreements are deceptively presented as changes to terminology when in fact they fundamentally alter the role of Parliament in its oversight role regarding the conduct of the executive arm of the government
All in all, the proposed changes bear one dominant theme: increasing presidential power at the expense of bodies that are supposed to keep a check on government. These are Parliament, the judiciary and the prosecution authority. One of the key principles that motivated constitutional reform was the concern that the old constitution gave too much power to the President. The 2013 Constitution has already been criticised, with some justification, for not doing much to reduce presidential power. Yet what we are seeing now is a further reduction of the advances that had been made to keep presidential power in check, a circumstance that will only make the constitution worse, not better. In the next part, I will examine the remaining proposed amendments.