LEGISLATIVE FRAMEWORK RESEARCH PAPER
Paul Mangwana and Douglas Mwonzora
The Consultants were engaged towards the end of December 2013 to carry out research on the areas in the Constitution of Zimbabwe which require legislative reform in order to make the constitution more effective and meaningful. The terms of reference in terms of which the work was carried out were;
- The Consultants were to carry out a detailed analysis of the Constitution of Zimbabwe Amendment No. 20 of 2013 and identify areas which require legislative support to make the constitution more effective.
- The analysis which will constitute the research paper will focus on the areas identified and agreed upon in the terms of reference
- In developing the research paper the Consultants will highlight the gaps that have to be filled by legislative support and make possible recommendations.
- The research had to be conducted within 5 days.
From the terms of reference given to us, it was clear that our mandate was to carry a detailed analysis of the areas in the constitution which require legislative support or reform to make the constitution more meaningful to the people of Zimbabwe. This being a research, it was clear that we were not being called upon to draft the actual clauses in the legislation being reformed or suggested but to lay the principle of the proposed amendments or to the legislation in question. We were also mindful of the constraints of time that we were working under.
In carrying out the research the Consultants adopted the following methodology;
a. Identifying those areas where the Constitution specifically stated that legislation had to be promulgated to support a particular provision or concept.
b. Identifying those areas, where even though the constitution does not specifically call for supporting legislation, particular concepts or provisions would not have any meaning without supporting legislation being put into place.
c. Having regard to the overall spirit of the constitution identifying legislative innovations consistent with the spirit of the constitution.
d. Identify those areas of apparent conflict in the constitution, which would require legislative reform to clarify certain positions and therefore eliminate possible conflict within the legal system.
e. Identify those areas in respect of which legislation already existed and in respect of which reform of the legislation was necessary.
f. Identify those areas where no legislation exists and in respect of which new legislation has to be promulgated.
g. Identifying those areas where legislation has to be promulgated or reformed as a matter of urgency to avoid state or any of its institutions operating either illegally or improperly. In our opinion this constitution is predicated upon making Zimbabweans enjoy the Bill of Rights better. Another key area is the new structure of the Zimbabwean state with its three tiers.
The time available to us did not permit us to look at the particular clauses in each legislation that require amendment to bring such legislation into total conformity with the Constitution. It also did not allow us to suggest the actual wording of each proposed amendment. It was not possible further to suggest the actual wording of any new legislation proposed. In our opinion there is need to identify particular clauses in each legislation which have the danger of bringing conflict between the legislation and the constitution. Of course we are aware that those clauses which are in conflict with the constitution are ipso facto void but that is depended on some individual raising this with the Constitutional Court. It is unfair and unjust that Zimbabweans continue to be encumbered by void legislation.