May 2016

Constitutional Commissions

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Under the Present Constitution

Four constitutional commissions are established by the Zimbabwean Constitution:

·        the Zimbabwe Electoral Commission

·        the Zimbabwe Anti-Corruption Commission

·        the Zimbabwe Media Commission

·        the Zimbabwe Human Rights Commission.

The Judiciary

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The judiciary is one of the three main branches of government, the other two being the Legislature (i.e. Parliament) and the Executive (the President, Ministers, the Public Service, the Police and Defence Forces).  The judiciary consists of all judicial officers, namely, the people such as judges and magistrates who decide civil and criminal cases in courts.

Legislature

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The legislative branch of government is the branch which makes laws for the country.  A legislature embodies the idea that people are the source of political power in the State and should control the law-making process.  It is an institution of representative democracy under which the people elect representatives to act for them, as opposed to direct democracy under which the people enact legislation themselves through referendums or mass assemblies.

Executive Powers

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Introduction

In the previous paper we outlined the doctrine of separation of powers between the three branches of government, namely the Executive, the Legislature and the Judiciary.  We noted that although the doctrine shows how important it is for the three branches to be autonomous, it does not deal with the nature and extent of the powers that each of those branches should exercise within their own spheres.  In this and subsequent papers we shall deal with the powers of the individual branches, starting with those of the Executive.

Separation of Powers

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Introduction

The doctrine of separation of powers was touched on in an earlier Constitution Watch.  It is one of the essential elements of the rule of law, because without a proper separation of powers the rule of law will be imperilled, but the doctrine has a wider application and this Constitution Watch will examine it in greater detail.  It will be seen that although the doctrine represents an ideal which cannot be put into practice absolutely, it does emphasise the need to provide adequate checks and balances within the governmental system.

Social and Economic and Cultural Rights

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What are Social, Economic and Cultural Rights?

“Liberty, Equality and Fraternity” was the slogan of the French Revolution, and some writers have used the slogan as a rough guide to divide human rights into three “generations”.

The first generation of human rights, which were the first to be recognised in international law, are those concerned with “liberty”, i.e. with the right to participate in political life.  Examples of these rights are the rights to personal liberty and the protection of law, freedom of association and speech, and the right to vote in elections.

A Declaration or Bill of Rights

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Most modern constitutions have a Declaration or Bill of Rights setting out fundamental rights and freedoms that are specially protected by the constitution.  Declarations of Rights have a long history.  English-speaking people regard their first as the Magna Carta of 1215, while the French look to the Declaration of the Rights of Man and of the Citizen, which was adopted at the beginning of the French Revolution in 1789.  The practice of including a statement on rights in constitutions became prevalent after the UN General Assembly adopted the Universal Declaration of Human Rights in 1948.

Citizenship

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Should the new Constitution deal with citizenship?

Citizens form the basis of every independent State because a State is an abstract concept comprising the people who live within a defined area.  Of the people who constitute a State it is the citizens who have a right to determine who will govern them and, sometimes, to decide the form which their government should take.

The Constitution and the Rule of Law

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What is the “Rule of Law?”

Our current Constitution states that public officers owe a duty to everyone in Zimbabwe to observe and uphold the rule of law [section 18(1a)], and the “Kariba Draft” Constitution contains a similar provision.  However, most people — including lawyers — have only the vaguest idea of what the expression “rule of law” means.  This is understandable because it is an elastic concept.  Fundamentally it means that people’s rights and obligations must be determined by laws rather than by individuals or groups of individuals exercising an arbitrary discretion.  From this fundamental concept several principles are derived:

A Preamble to a Constitution

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What is a preamble?

The preamble to a constitution is an introduction to the constitution and usually bears the formal heading “Preamble”.  It presents the history behind the constitution’s enactment, and sometimes sets out the nation’s core principles and values.

Do all constitutions have preambles?

Banking Amendment Act, 2015

To amend the Banking Act [Chapter 24:20], the Reserve Bank of Zimbabwe Act [Chapter 22:15], the Deposit Protection Corporation Act [Chapter 24:29] and the Schedule to the Reserve Bank of Zimbabwe Amendment Act, 2010 (No. 1 of 2010); to repeal the Troubled Financial Institutions (Resolution) Act [Chapter 24:28]; and to provide for matters connected with or incidental to the foregoing. Enacted by the Parliament and the President of Zimbabwe. This Act may be cited as the Banking Amendment Act, 2015.

Constitution Watch 8-2016

CONSTITUTION WATCH 8/2016

[16th May 2016]

Constitutional Alignment: Media Freedom

Introduction

The Chairperson of the African Commission on Human and People’s Rights and Special Rapporteur on Freedom of Expression and Access to information, Ms Pansy Tlakula, will be visiting Zimbabwe this week to assess the country’s progress in re-aligning media-related laws with the Constitution.

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