CONTENT SERIES 6/2010
[19th November 2010]
Separation of Powers Part II
Separation of Powers in Current and Various Draft Constitutions
In the first part of this Constitution Watch we outlined the theory behind the doctrine of separation of powers, and noted that although it is seldom applied strictly, its value lies in emphasising the need for strong independent institutions within a State which provide checks and balances against encroachment by any one of the main branches of government into the spheres of the others.
In this part we shall compare our present Constitution and the three main constitutional proposals that have been put forward since 2000 — the Kariba draft, the NCA draft and the recent Law Society model — to see how far they provide for a separation of powers. (In what follows, the effect of the GPA on the present Constitution will be ignored — it is so vaguely worded that in most cases it obscures what was previously clear, and in any event its effect is only temporary).
Comparison of Provisions for Separation of Powers in Present Constitution and Proposed Drafts.
Can the Executive (i.e. the Head of Government or a Minister) exercise legislative powers?
- Present Constitution: Parliament can confer legislative functions on anyone (section 32). Under the Presidential Powers (Temporary Measures) Act and the Emergency Powers Act, the President has been given almost unlimited, though temporary, power to enact legislation.
- Kariba draft: Legislative authority is vested in Parliament and the President (clause 103) and Parliament may confer legislative functions on anyone (clause 104).
- NCA draft: Only subsidiary law-making powers may be delegated by Parliament, and all subsidiary legislation must be laid before the National Assembly (clause 49).
- Law Society draft: Essentially the same as the NCA draft (clause 53)
Can the President veto legislation?
- Present Constitution: The President has 21 days within which to assent to a Bill passed by Parliament. If he refuses assent, the Bill is returned to Parliament and, if the House of Assembly by a 2/3 majority so resolves, the Bill is sent back to the President. He must then assent to it within 21 days or dissolve Parliament (section 51).
- Kariba draft: As under the present Constitution, the President may refuse to assent to a Bill within 21 days — but only if he or she has reservations about its constitutionality. If the President refuses assent, the Bill is returned to Parliament and, if a 2/3 majority of both the Senate and the House of Assembly so resolves, the Bill is sent back to the President. He must then assent to it within 21 days (clause 136).
- NCA draft: Very much the same as under the Kariba draft (clause 70).
- Law Society draft: Again, very much the same as under the Kariba draft (clause 52).
Can the Executive appoint members of Parliament?
- Present Constitution: Out of 93 Senators, the President appoints five in his complete discretion; a further 10 are Provincial Governors appointed by the President in his complete discretion; and a further 18 are chiefs who owe their appointment to the President (section 34)
- Kariba draft: Identical to the present Constitution (clause 106)
- NCA draft: Ten Senators will be chiefs, but the manner in which the chiefs will be appointed is unclear (clause 65).
- Law Society draft: All members of both Houses of Parliament will be elected (clauses 65 & 68)
Can the Executive impose taxes?
- Present Constitution: Probably not, if the Constitution is properly interpreted, but the President has imposed taxes using the Presidential Powers (Temporary Measures) Act.
- Kariba draft: No taxes, duties or levies may be imposed unless they have been authorised by an Act of Parliament, but an Act can allow a Minister to impose them (clause 222).
- NCA draft: No tax, duty or imposition may be imposed except under the authority of an Act of Parliament (clause 148).
- Law Society draft: No tax, duty or levy may be imposed except under specific authority of the constitution or an Act of Parliament (clause 164).
Must the Executive obey judicial decisions?
- Present Constitution: Yes, though the Constitution does not say so expressly. Section 31H(2) requires the President to uphold the Constitution and ensure that all laws are faithfully executed; if he fails to do so the only sanction is impeachment, a political measure. Section 18(1a) requires all public officers to uphold the rule of law.
- Kariba draft: Much the same as the present Constitution (clauses 12 & 80)
- NCA draft: Yes. All organs of the State will have to ensure the effectiveness of the courts, and judicial decisions will bind organs of the State (clause 97).
- Law Society draft: The same as the NCA draft (clause 105).
Are judges appointed by an independent body?
- Present Constitution: No. The President appoints judges after consultation with the Judicial Service Commission, which in any event is dominated by his appointees (sections 84 & 90)
- Kariba draft: The President will appoint the Chief Justice and his or her deputy after consultation with the Judicial Service Commission, and other judges either with the approval of the Commission or from a list of names submitted by the Commission (clause 163). Again, the Commission will be dominated by presidential appointees (clause 172).
- NCA draft: The Chief Justice and the Judge President will be appointed by the President from a list of nominees submitted by the Judicial Services Commission; other judges will be appointed by the President on the recommendation of the Commission. All these appointments will be subject to approval by the Senate. (clause 109) The Commission’s membership will be drawn from a variety of sources (clause 115)
- Law Society draft: Very much the same as the NCA draft (clauses 113-6). A majority of members of the Judicial Services Commission will be elected by the legal profession.
Is judicial independence guaranteed?
- Present Constitution: Yes, expressly by section 79B and indirectly by ensuring that judges can be removed from office only on limited grounds and after a proper investigation, and by stating that their remuneration cannot be reduced while they are in office.
- Kariba draft: Very much the same as the present Constitution, though gross incompetence is an additional ground for removing judges from office.
- NCA draft: Again, much the same as the present Constitution. Gross incompetence is an additional ground for removing judges, and the procedure for doing so is not specified.
- Law Society draft: Also much the same as the present Constitution, though again gross incompetence is an additional ground for removing judges (is some message being sent to our current judges?). As in the NCA draft, the precise procedure for removing judges is not specified, though it must be “fair”.
Can the Executive (i.e. the President or the Prime Minister) determine whether and when Parliament sits?
- Present Constitution: Yes. The President decides when sessions of Parliament begin, but there must be a session of Parliament at least once every six months (section 62(2)).
- Kariba draft: Much the same as the present Constitution, but the President will have to summon Parliament within 21 days after each general election (clause 140).
- NCA draft: No. The President will have to summon Parliament within 21 days after an election, and thereafter Parliament will determine when it sits.
- Law Society draft: The same as the NCA draft, though the President, on the advice of the Prime Minister, will be able to summon Parliament for special business (clause 63)
Can the President dissolve or prorogue (i.e. suspend) Parliament at his discretion?
- Present Constitution: Yes, he can do so at any time in his absolute discretion, i.e. without consulting the Cabinet (sections 62(1), 63(1) & 31H(5), proviso (a)).
- Kariba draft: The same as the present Constitution (clauses 98(2) & 144).
- NCA draft: No. Parliament will be dissolved only if the National Assembly, by a 2/3 majority, so resolves (clause 58).
- Law Society draft: The same as the NCA draft (clause 62).
Is the head of government — the President or the Prime Minister — dismissible by Parliament?
- Present Constitution: Yes. The President can be impeached and removed from office by a 2/3 majority of both Houses of Parliament (section 29). Also, if a 2/3 majority of each House passes a vote of no confidence in the Government, the President must either call a general election, or dismiss the Cabinet, or himself resign (section 31F).
- Kariba draft: Yes, by a 2/3 majority the Senate can impeach the President and remove him or her from office (clause 90). And if a 2/3 majority of both Houses of Parliament pass a vote of no confidence in the Government, the President must either dismiss the Cabinet or call a general election (clause 97).
- NCA draft: Yes. The Prime Minister, who is Head of Government, can be removed from office by a 3/5 majority of the National Assembly (clause 86). And if the National Assembly, by a 3/5 majority, passes a vote of no confidence in the Government, the Prime Minister must resign (clause 88).
- Law Society draft: The same as the NCA draft, though the majority required for the vote in the National Assembly is 2/3, not 3/5 (clauses 85 & 90).
Is the Attorney-General or the person responsible for criminal prosecutions independent of the Executive and the Legislature?
- Present Constitution: No. He is a non-voting member of the Cabinet and of the Senate and House of Assembly (section 76(3b)).
- Kariba draft: The same as the present Constitution (clause 175(2)).
- NCA draft: Yes. The Attorney-General will be appointed in the same way as judges, will enjoy security of tenure and will not be a member of the Cabinet or either House of Parliament (clause 117).
- Law Society draft: Yes. Though the Attorney-General will be a non-voting member of Cabinet (clause 127), he or she will not be responsible for criminal prosecutions. The Independent Prosecutor-General, who will be responsible for them, will be appointed in the same way as judges, will enjoy security of tenure and will not be a member of the Cabinet or either House of Parliament (clause 129).
The present Constitution comes out very badly from this brief survey. The Executive dominates the other two arms of government and there are no effective checks on its power. It is hardly surprising that Parliament has become little more than a rubber-stamp for the President’s policies, and that the Judiciary has ceased to be an effective protector of fundamental human rights.
The Kariba draft comes out little better. The President will have the same power to summon, prorogue and dissolve Parliament as he has at present; he will have the same power to appoint members of the Senate; and, at least potentially, he will enjoy the same wide power to enact legislation. He will not, however, have quite so much freedom to appoint judges so the judiciary may be a little more independent. And, if the judges find the strength to apply it, the Declaration of Rights in the Kariba draft is much more comprehensive than the Declaration in the present Constitution. Criminal prosecutions, however, will remain in the hands of an Attorney-General who is closely linked to the politicians who make up the Executive.
Under both the NCA draft and the Law Society draft there will be greater separation between the three branches of government, and the Legislature and the Judiciary will be more independent. The President will not be able to appoint members of Parliament at all under the Law Society draft, and the NCA draft will allow only 10 chiefs to sit in the Senate. Both Houses of Parliament will be able to decide when and how often they sit. The power of the Executive — the Prime Minister and his or her Ministers — to enact legislation will be more restricted. Judges will be appointed by an independent and transparent process and their judicial autonomy will be better protected than under the Kariba draft.
If, therefore, legal theorists are right in believing that separation of powers in a State guarantees the freedom of its citizens, then the fundamental rights and freedoms of Zimbabweans will be better protected if they adopt a new constitution along the lines of the NCA draft or the Law Society draft, than if they opt for the Kariba draft.
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