In the National Assembly Tuesday 13th June 2017
CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 1) BILL
Vice-President Mnangagwa’s Reply to the Second Reading Debate
THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. MNANGAGWA): Mr. Speaker Sir, allow me at the outset to pay tribute to all the Hon. Members who have contributed to the debate generated by my Second Reading Speech on Constitutional Amendment Bill No. 1, 2017. I was encouraged by the application of their minds on the pros and cons of this Bill pertaining to the appointment procedure of the Chief Justice of the country in future. An extent which that will enhance the administration of justice and improve access to justice by our people and of course, the need to bring more clarity to Section 174 by providing an explicit provision to effect that the Labour Court and the Administrative Court are subordinate to the High Court.
Mr. Speaker, you may recall that in the second paragraph of my Second Reading Speech, I emphasised that the constitutional framework for judicial independence in any jurisdiction is paramount in determining the quality of justice delivery, access to justice and administration of justice. I also highlighted that these aspects are indeed intricately linked to the procedure of appointment of Heads of Judiciary and other Judges. Such appointments must be executed in a manner that does not compromise the constitutional, legislative, administrative values and etiquette expected of such crucial officials.
It is the procedure of these appointments which I firmly believe must be in tandem with international good practice and be subjected to proper administrative process, with no internal or external influence whatsoever. I went on to highlight that judicial independence can only be achieved when the constitutional bedrock on which such appointments are anchored is solid enough to arrest any mischief, perceptions and challenges that may arise in the administration of justice. This background is crucial, as it will be able to recall each and every one of us to order at any such time we will be tempted to be taken adrift by waves of our narrow partisan interests.
Mr. Speaker, I have applied my mind on the contributions that were made by Hon. Members. Such contributions will guide us during the amendment process. I will start with findings and recommendations made by the Committee arising from the report presented by Hon. Ziyambi.
The first item raised by the Committee is that the title of the Constitution itself must be amended from Constitutional Amendment No. 20 Act of 2013 to Constitution of Zimbabwe 2013 so that this Amendment Bill will lead to the enactment of Constitutional Amendment No. 1 Act. While there appears to be the general consensus that this amendment must be done, it should be borne in mind that the changing of the title is not just done that simply, as it involves another amendment process to be initiated; given that the title itself is part of the text of the Constitution and we can seldom trivialise the text simply because it is a title and seek to change it willy nilly.
In any event, I was wondering if there is any one among us who is uncertain and confused that this proposed amendment is to the Constitution that we all endorsed in 2013. To seek to amend the title of the Constitution in my view, will complicate the situation further. It is one’s conviction that this amendment is to the effective and operational Constitution that matters, and thus the proposal to amend the text expressing the title of the Constitution may not be taken aboard by this proposed amendment as it was never part of the principles which were part of the drafting instructions to our drafters.
Mr. Speaker, I am grateful that after the Committee’s findings, the Committee has also been able to analyse contributions by our citizens and have been guided by those contributions to arrive at certain conclusions that they have presented to us as their recommendations.
Mr. Speaker, I am amenable to be encouraged by the recommendations made by the Committee which has clearly supported the Bill we are debating today.
Firstly, on the proposed amendment of Section 174 of the Constitution by the addition of subsection 2 that explicitly subordinates the two courts to the High Court but maintains the quality of basic conditions of service between judges of the High Court and judges of the two subordinate Courts, the Committee has not grappled with that position and has swiftly recommended that we cause that amendment. This sentiment also appears to be shared by the majority of other members.
In fact, the Committee went further to dismiss a minority suggestion that we amend the Acts which deal with establishment of respective courts and leave the Constitution. This clearly is an absurdity which flies in the face of settled legal principles that enabling Acts can only be enacted provided that their final scope, content and text is not at variance with the supreme law of the land. That said, it would be difficult to reflect a position in an Act of Parliament when the Constitution itself has a glaring lacuna or gap. The first and imperative action is for the legislature to move in and correct that anomaly. Surely, Parliament cannot shy away from its duties that are constitutionally conferred and authoritatively given to it by the people.
Mr. Speaker, pertaining to the appointment procedure under Section 180 of the Constitution, items 5.5 and 5.6 of the Committee’s Report unequivocally support the Amendment Bill and thus noted that: ‘...the responsibility of the judiciary to interpret the laws of the land must vest in individuals who are qualified, professionals, fit and proper and the proposed amendment does not seek to take away these cardinal baseline requirements,...’.
Further, the Committee also authoritatively agreed with the proposed amendment as it does not seek to erode the independence of Judiciary, given that provisions that insulate such independency as provided for in terms of Section 164 and 165 on Independence Judiciary and the principles guiding the Judiciary are not going to be tempered with at all except for the administrative aspects of the appointment procedure under Section 180, only pertaining to the appointment of the three heads of the judiciary that are inclined towards empowering the office of the sitting and outgoing Chief Justice to choose his or her successor at the expense of Judicial authority, that must be exercised by the people through their elected representatives.
The Committee persuasively advanced this notion as follows, “ the system of representative democracy which subsists in Zimbabwe is being negated by the current procedure which leaves the selection of such influential office bearers who define direction and policy of the country to unelected individuals. It is settled that judicial authority drives from the people, hence the need to change the status quo”.
I now turn to submissions by Hon. Gonese and I will lump my responses to his submissions together with those raised by Hon. P. D. Sibanda. Firstly, let me put it on record that this is not a self-serving amendment as these two Hon. Members have been at pains to portray. It is my firm belief and conviction that those who entertain such notions are not only mischievous and self-destructive to say the least, but dangerous, not only to our constitutional democracy but to themselves. It must be clear to them that I, as the Minister to whom the Justice, Legal and Parliamentary Affairs portfolio was assigned, have the unfettered mandate to propose amendments accordingly to the people’s wishes, the law and procedures available for the peace, order and good governance of the motherland. It is that duty which I credibly execute in a balanced manner, to the satisfaction of all our Zimbabwean people regardless of their political persuasions.
Hon. Gonese expressed his concern about the timing of brining this proposed amendment describing it as being too early. This sentiment is shared by Honourables Cross, Majome and Ndebele. The timing of bringing a proposal of an amendment to the Constitution can only be addressed by the Constitution itself. No constitutional provision prescribes or limits the time within which proposals to amend the Constitution must be tabled before this august House. The only direction we get from the Constitution pertains to the procedure that must be followed when amending the Constitution and this is set out in terms of Section 328 on amendment of Constitution. In terms of 328 (6), where a Constitutional Bill seeks to amend any provision of Chapter 4 on Declaration of Rights or Chapter 16 on Agricultural Land, it must be submitted to the referendum within three months after it has been passed by Parliament by the affirmative votes of two-thirds of the membership to each of the Houses of Parliament.
Thus, the restrictions have been placed in amending these two provisions in our Constitution not on the basis of time but procedure. This is what we refer to as entrenchments. These entrenchments also apply to provisions relating to the amendment of term limits provisions and Section 328 itself; as prescribed by Section 328 (7) and (9) respectively. Section 328 (9) restricts the amendment of Section 328 itself, in case someone wants to amend the amendment clause first before attempting to amend other provisions.
The provisions from which this particular amendment proposal on appointment of judges arise, are not entrenched and thus are subject to amendments as long as the proper procedures are followed, and of course, when the rationale of the need of that amendment is found, either by the Government of the day or by any Member of Parliament, who would wish to sponsor a Private Bill. In this case, we are following the procedure prescribed in terms of Section 328 to the letter and spirit, and thus, no issues of constitutional ripeness or otherwise legally arise, particularly on the benchmark of time.
Mr. Speaker, now that we learn that there is no provision in our Constitution that prescribes the time within which a constitutional amendment may be brought before this august House, one may want to learn from even our neighbour, South Africa which adopted their Constitution in 1996 and started to be operational in 1997. The South African Constitution came into effect on 4th February, 1997 and by 28th August, 1997 barely seven months after the effective date, the late President Mandela was signing a constitutional amendment into law, with less than six months of it coming into effect. It made changes related to the Oath of Office of the Acting President and to the jurisdiction of the Truth and Reconciliation Commission, and also to the effect that the Chief Justice should designate another judge to administer the Oath of Office of the President or Acting President, rather than administering it personally.
As a comparative analysis, how do you reconcile the more than four years that our Constitution has been in effect and the less than seven months within which South Africans changed their Constitution? That notwithstanding, the South African people remain proud of their Constitution even when it was changed within six months. I believe that other than some of our own such as Hon. Ndebele, whose pride as a Zimbabwean has been dented simply because we have proposed a constitutional amendment within four years.
Mr. Speaker, it arises from the above South African example that it is not true that a Constitution cannot be amended within four years as in our case, as long as that amendment is legally and procedurally executed as we hereby do. It is trite that while intended to be both foundational and enduring; constitutions are not intended to be immutable. In fact, if the Constitution is to endure, it must be able to respond to changing needs and circumstances. Some amendments are made for the public interests; or to adjust the Constitution to the environment within which the political system operates, including economics, technology, international relations, demographic and values. They can be changed to correct provisions that have proved inadequate over time, or to further improve constitutional rights or to strengthen democratic institutions.
In fact, the early writings of eminent thinkers such as John Locke in his seminal work ‘Treatise of Government’ and newfangled writers like Donald Lutz in his work ‘Towards a Theory of Constitutional Amendment’, support the notion that if a population rested on popular consent, then the people can also revise, amend or replace it with a new one, equally on the basis of popular consent. This popular consent may be practiced through a convention, referendum or legislative process of a relatively bigger majority.
Mr. Speaker, while I was very excited and enthused by the level of debate directed towards this constitutional amendment, I was also discouraged by the level of misdirection of this august House by some Hon. Members who, at all cost, were desirous to discredit the fact that the appointment of the Chief Justice and Deputy Chief Justice through an interview process has no precedence. Hon. Gonese, in the last paragraph of his submission, wanted to enjoin Kenya as one such jurisdiction that subjects prospective candidates to the office of the Chief Justice to public interviews. Section 166 (1) of the Kenyan Constitution is relevant and clearly provides that:
‘The President shall appoint –
(a) the Chief Justice and Deputy Chief Justice in accordance with the recommendation of the JSC, and subject to the approval of the National Assembly;’ (There are no public interviews) and
‘(b) all other judges in accordance with the recommendation of the JSC’. (There are no interviews.)
So, that was misdirection by Hon. Gonese.
Surely, with the much-touted Kenyan example having been used by the Hon. Members as a shining example of a jurisdiction that appoints its judicial officers through an interview process, and has now been discredited as an outright lie and misdirection of Hon. Members, we stick out as the only country which unprecedentedly appoints its Chief Justice and Deputy Chief Justice through a public interview process.
Mr. Speaker, allow me to also address the unwarranted fears that the Hon. Members appear to have been harbouring throughout the debate. The unwarranted fear that the appointment of the Chief Justice, Deputy Chief Justice and President of the High Court shall erode the independence of the judiciary and unsettle the separation of powers as was expressed by Hon. Ndebele, Chirisa and Hon. Misihairabwi-Mushonga. On this concern, it should be noted that judicial independence is a function of a number of inter-related elements other than the procedure of appointment alone, which procedure has not been done away with in the appointment of the whole bench, the rest of the judges still have to go through a process of interviews as in the current Constitution, but just three of the members of the judiciary, by virtue of it being a means of curing an administrative mischief that may potentially occur.
Fundamentally, the Constitution has other adequate mechanisms that guarantee judicial independence to advance and secure the integrity of the bench from all forms of interference. These range from their fitness and properness, their qualifications, integrity, probity, moral, character and impartiality; there are dismissal procedures and remuneration and those are the safeguards that safeguard the independence of the Judiciary. We must also remember that whilst we hold premium the principle of the independence of the judiciary, it should be noted that as an arm of Government, the Judiciary is an independent but interrelated and interdependent sphere of the Government machinery that can only survive when it interlocks with other organs through the lenses of an equally celebrated principle of checks and balances. Surely, the Judiciary cannot exist in an island or in a vacuum because if that notion of its existence as a vacuum was true, surely the President would not be even allowed to play even a single role in the appointment process as is the case across jurisdictions worldwide.
Mr. Speaker, then comes the issue of the people as the source of the judicial authority. The notion that Judicial authority derives from the people is not an immaterial proposition but a fundamental one that is rooted in the subterranean layers of our electoral mandate. Democracy itself is embedded in the popular views of the masses at any given time. When we say certain provisions of the Constitution have outlived their usefulness and should be reviewed, it means that the popular will of the greatest number share that view. It is that view that must be debated and if it steals the thunder, it is the one that must be adopted.
However, those popular views must be debated, tested and interrogated, following the constitutional and legislative procedures in place and that is what we are doing in this august House. In any event, it is a good and longstanding practice even in well established democracies to include the elected representatives of the people in the judicial appointment process. In Kenya, they involve both their President and the National Assembly – not the interviews as previously debated. In South Africa, it is the President and the National Assembly; and in America, it is the President and the Senate. It is only in Zimbabwe that the President is involved after the public interviews which we are now removing.
Mr. Speaker, it is against this backdrop that we propose this constitutional amendment especially if regard had to be heard to the invidious position that it leaves our judicial officers in. Does it not naturally make sense that an outgoing Chief Justice cannot chair interviews for his or her potential successor? The reason is simple as it is predicated upon a possible conflict of interest, which mitigates on the principles of good governance and transparency of the whole appointment process leading to the contamination of the bench and subsequent compromise the administration of justice. However, the President in compliance of the current Constitution before this amendment went ahead and appointed a new Chief Justice in terms of the current Constitution which is the law until it is amended. That is the rule of law.
Mr. Speaker Sir, I also wish to highlight that it is not right to hold the notion that there are other pressing issues that should take precedent ahead of the imperative need of addressing gaps in our Constitution; as Hon. Ndebele clearly said in the closing remarks of his submissions before he quoted the late nationalist and legal icon, E.J.M. Zvobgo. Is the Hon. Member insinuating that the Constitution is immaterial to the extent that we must ignore it up until a time when our economic fortunes have improved? We must surely be guided by former South African Chief Justice, Ishmael Mohamed who emphasised the importance of the Constitution when he said: “The Constitution of a nation is not simply a statute, it is a mirror of the national soul, the identification of the ideals and aspirations of a nation, the articulation of the values binding its people and disciplining its government”.
Do we need a mirror of the national soul that is broken? Do we need the identification of the ideals and aspirations of our nation to be in tatters? Do we want the articulation of the values binding our people and disciplining our Government to be on a blighted and shaky constitutional framework – no? Interestingly enough yet paradoxical, Hon. Ndebele put his lessons at the University of Zimbabwe Law School into practical use by branding our Constitution sui generis, which means in a class of its own. I hear he is a freshman at the University of Zimbabwe but deliberately refrained from reasoning that a Constitution with gaps and provisions such as Section 180 can hardly be described as sui generis. Surely, the Eighth Parliament cannot go down in history as a Parliament that jettisoned its mandate of making laws for the peace, order and good governance of its nation and leave it all to the courts to grapple with the jurisprudence of interpreting and assigning meaning to half baked provisions. We make laws as Parliament; the Judiciary interprets that law and the Executive implements and enforces that law.
Mr. Speaker, it is disturbing to note that some Hon. Members such as Hon. Cross and Chirisa prefer to align the legislation to the Constitution first before amending it, even if it has glaring lacunae or gaps. Surely, this becomes a case of the proverbial cart before the horse maxim. You can only align legislation to a Constitution with watertight and robust provisions. A flawed constitutional framework means a weak legislative framework and consequently a society not founded on justice, law and order. Your guess of the by-products of such a society are as good as mine. Surely, that is not the kind of society that we yearn for here in Zimbabwe.
Mr. Speaker, let me also turn to those who wanted to advance the notion that this is a partisan amendment. While Hon. Members Mukwena, Nduna, Katsiru and Matambanadzo supported the Bill, I feel that they went too far to make it like the amendment is a party amendment simply because the party which also proudly supports and whose people I humbly subordinate myself to, wishes to sponsor it and by virtue of that, it shall come to pass. This amendment is an apolitical-centred amendment that is founded on the notion that for the administration of justice to be smooth, it must be predicated upon an independent appointment process, insulated from potential internal influence of its senior officials.
However, I wish to pay tribute to Hon. Mukwena, Hon. Katsiru, Hon. Matambanadzo, Hon. Phiri, Hon. Chakona, Hon. Mandipaka and Hon. Nduna for their emphasising the importance of enjoining the source from which judicial authority is derived in the appointment of senior judicial officers: the people through their popularly elected representatives, the appointment must be done by an official from a different arm of Government, which official has the authority of the masses from which judicial authority is derived - who is the President. Even Hon. Maridadi was close to endorsing this notion, albeit vicariously, by referring to the role the Presidency plays in making the constitutional making process succeed, and by extension, the role the presidency can play in making the judiciary work through appointments. Unfortunately, he could not afford to be too clear for fear of reprisals from his party colleagues.
Mr. Speaker, there was raised concern that this Bill did not get support from Cabinet as evidenced by sentiments expressed by other Cabinet Members through the media. I surely do not find that to be an issue that stops this amendment process as disagreements will always be part of our deep seated democratic principles. Just like here in Parliament, we are witnessing divergent views on one issue and if that happens in here, what is irregular in that happening in Cabinet especially in view of the democratic mechanisms in place to ensure that the voice of the majority wins the day. After all, there is a long standing tradition of ‘Cabinet collective responsibility’ that dictates that even when a Cabinet Member does not agree with the majority decision, it is either that they are bound by that decision or they resign.
The fact that we have not seen any resignation arising from the successful endorsement of this Bill by Cabinet is eloquent testimony that the Bill has full backing of Government and the final arbiters, the people, through their elected representatives who will have the final say on the Bill. Mr. Speaker, that said, I now propose that the Constitution of Zimbabwe Amendment (No. 1) Bill [H.B. 1, 2017] be now read a second time.
Note by Veritas: The Bill then received its Second Reading