CONSTITUTION WATCH 1/2021
[20th April 2021]
Constitution of Zimbabwe Amendment (No. 2) Bill
Unconstitutionally Amended and Fast-tracked
The Constitution of Zimbabwe Amendment (No. 2) Bill passed its Second Reading in the National Assembly on Wednesday 14th April and the Assembly resolved to suspend Standing Orders to permit the Bill to be fast-tracked through its remaining stages – the Committee Stage and Third Reading – in the Assembly. The next day, Thursday 15th April, the Minister of Justice, Legal and Parliamentary Affairs gave notice of amendments he wanted made to the Bill in the Committee Stage. The Bill underwent its Committee Stage that very day – i.e. on the same day that the Minister’s amendments were published – and, in a late-night sitting, the Assembly passed it with all the amendments proposed by the Minister and others put forward during Committee Stage. The Bill’s Third and final reading is due to be held today.
We analysed the Bill in a series of Constitution Watches last year: See Constitution Watches No. 1 of 2020 (23rd January 2020 [link], No. 2 of 2020 (26th January 2020 [link], No. 3 of 2020 (28th January 2020 [link], No. 4 of 2020 (28th January 2020 [link], No. 5 of 2020 (22nd February 2020 [link] and No. 6 of 2020 (18th March 2020 [link]. In this Constitution Watch we shall ask whether it is constitutional for Parliament to amend or change a Constitution Amendment Bill and then examine the changes the Assembly agreed to make to the Bill to determine whether they are constitutional.
First, though, we should make a couple of preliminary points:
Fast-tracking of the Bill
The haste with which the Bill is being rushed through Parliament is almost indecent. It is certainly inappropriate for a Bill that will amend the Constitution, the country’s supreme law. So rushed has the process been that Members were given no proper notice of the Minister’s amendments, and some additional amendments were made to the Bill that were not notified in the day’s Order Paper – one member pointed out that she had not been allowed time to give proper notice of the amendments she proposed.
The second point to make is that the Minister’s amendments were ineptly drafted, perhaps because they were done in haste, and it is not always clear what the Minister was trying to achieve by them. The Notice of Amendments [see attachment showing Minister’s Amendments] contained two cryptic comments in bold type which may have constituted proposed amendments or may simply have been drafting notes that were never deleted. As for the amendments that were not notified in the Order Paper, they were never drafted at all before they were agreed to and inserted in the Bill.
All this will have made it very difficult for the staff of Parliament to work out what amendments were actually made to the Bill, and there must be some doubt as to whether the Votes and Proceedings of 15th April [see attachment], which purports to record the proceedings of the Bill’s Committee Stage, is completely accurate.
Before examining the amendments which the Order Paper says were made to the Bill, we shall deal with the fundamental question which they raise, namely: Can Parliament amend or change a Constitution Amendment Bill?
Constitutionality of Amendments to a Constitution Amendment Bill
Under ordinary parliamentary procedure Bills can be amended during their passage through the National Assembly and the Senate. Normally amendments are made during the Committee Stage of a Bill, when the Senate or the National Assembly, as the case may be, goes through the Bill clause by clause. Normally too, amendments have to be notified (i.e. published) in the Order Paper of the House concerned before they can be proposed, though the chairperson of the Committee can give leave for an amendment to be proposed without notice [see Standing Order 146(5) of the National Assembly].
That is the procedure for ordinary Bills, but the Constitution of Zimbabwe Amendment (No. 2) Bill is not an ordinary Bill: it will amend the Constitution, and section 328 of the Constitution lays down the procedure that has to be followed for such Bills:
- The Speaker of Parliament must give at least 90 days’ notice in the Gazette of “the precise terms of the Bill”. This allows the public to see precisely what amendments are proposed and gives them three months in which to discuss the amendments and lobby their members of Parliament for and against them.
- During the 90-day period Parliament must convene meetings and provide facilities for members of the public to express their views on the Bill.
- At its final reading in each House of Parliament the Bill must be passed by a two-thirds majority of the members of the House concerned.
It is important to note that “the precise terms” of a Constitution Amendment Bill must be published in the Gazette at least 90 days before the Bill presented to Parliament. The public must be told exactly what amendments are going to be made to the Constitution and be given opportunities and facilities to debate them. This would be wholly defeated if the Government were allowed to amend the Bill out of all recognition after it was presented in Parliament. Suppose, for example, the Government were to publish a Bill that proposed simply to change the title of the Deputy Chief Justice to Assistant Chief Justice, and then when the Bill passed through Parliament the Minister were to get it amended to abolish the Senate and the Zimbabwe Human Rights Commission: could it possibly be said that those amendments were lawful? Surely not.
On the other hand, some amendments to a Constitution Amendment Bill must be permissible. If after a Bill has been published it turns out that public opinion is strongly against some of its provisions, Parliament should be allowed to delete them from the Bill. Or if the Bill is found to contain non-substantive drafting errors, Parliament should be allowed to correct them. Some latitude has to be given to Parliament to exercise its proper legislative functions in regard to constitutional amendments.
Perhaps the dividing line between legitimate and illegitimate parliamentary amendments of Constitutional Amendment Bills lies in their effect: if the amendments make material or substantial changes to the original Bill, they are illegitimate; if they make minor changes or corrections, or if they remove clauses from the Bill, then they are legitimate and permissible.
We shall now go through the changes which, according to the next day’s Order Paper, the National Assembly agreed to make to the Bill, in order to see whether they meet the criteria for constitutionality we have suggested above.
Amendments Made to the Bill
Changes to clause 3 (Qualifications of Vice-Presidents)
Clause 3 of the Bill in its original form would have amended section 91 of the Constitution so that:
- Persons do not have to be qualified to be elected as President in order to be appointed as Vice-President, and
- A person who has served two terms as President (and so is disqualified to serve any longer in that office) can be appointed as a Vice-President.
During the Committee Stage the Minister proposed two changes to the clause which he had not notified in the Order Paper. The effect of one of them is that Vice-Presidents will have to be qualified for election as President; the other change makes no sense at all, probably because it was proposed at the last minute without have been thought through.
Are these changes constitutional? The first one is certainly substantial, so it could not be made by Parliament. It is therefore unconstitutional. As to the second meaningless amendment, it is impossible to say.
Changes to clause 11 (Representation of women in Parliament)
Clause 11 of the Bill will extend, for another 10 years, the system whereby 60 women are elected to the National Assembly by proportional representation. Further amendments were proposed orally by a private member during the Committee Stage and were not published in the Order Paper. They will compel political parties to ensure that:
- 10 of the women elected by proportional representation are under the age of 35,
- Women with disabilities are represented on their party lists, and
- “Young women with disabilities are represented on their party lists in terms of an Act of Parliament”.
Although the idea behind these amendments seems admirable, they have not been properly thought out. Parties in a general election nominate six women candidates for each province, and they cannot determine in advance which of them will be elected so they cannot possibly ensure there will be 10 young women in Parliament. Also, it is not clear if the young women will have to vacate their parliamentary seats upon attaining the age of 35.
Are these changes constitutional? They are substantial and are therefore unconstitutional.
Deletion of clause 12 (Delimitation of electoral boundaries)
Clause 12 of the Bill would have amended section 161 of the Constitution to remove the link between the delimiting of electoral boundaries and the holding of population censuses: section 161 requires delimitations to take place as soon as possible after the holding of a population census. The Minister proposed to delete clause 12 from the Bill, which means the link between delimitations and censuses will remain.
The Minister’s proposal is a bit ironic because one of the justifications for amending the Constitution was that there would be too little time between the holding of the next census in 2022 and the general election in 2023 to conduct a proper delimitation. In fact the Government followed a suggestion put forward by Veritas, that the simplest way out of the problem would be to amend the Census and Statistics Act to allow the census to be held in 2021 rather than 2022. The Act has been amended so the problem posed by section 161 of the Constitution has fallen away.
Is this change constitutional? Since it entails deleting a clause from the Bill, i.e. a decision not to make a proposed amendment to the Constitution, it was within Parliament’s powers and is therefore constitutional.
New clause substituted for clause 13 (Appointment and promotion of judges)
Clause 13 of the Bill will amend section 180 of the Constitution to permit the President, on the recommendation of the Judicial Service Commission, to promote judges of the Supreme Court and High Court to a higher court without their having to undergo the usual selection process laid down in the section.
The Minister proposed, and the Assembly adopted, a new clause which will allow judges of the Labour Court and Administrative Court as well as judges of the Supreme Court and High Court, to be promoted without having to undergo a selection process.
Is this new clause constitutional? The extension of section 180 to cover additional judges is a substantial change, so it is unconstitutional.
New clause substituted for clause 14 (Tenure of judges)
Clause 14 of the Bill, in its original form, would have amended section 186 of the Constitution to allow judges of the Constitutional Court and the Supreme Court to continue in office after they reach the current retirement age of 70. They would have been given the option of continuing to serve for periods of one year at a time, with the President’s approval, until they reach the age of 75.
The National Assembly adopted an amendment which changes this in the following ways:
- Judges of the Constitutional Court and the Supreme Court (including the Chief Justice and the Deputy Chief Justice) will be given the option to continue in office, with the President’s approval, for a single five-year term after they reach the age of 70.
- The new amendment will apply to the present Chief Justice, Deputy Chief Justice and other judges of the Constitutional and Supreme Courts notwithstanding section 328(7) of the Constitution, which says that alterations of term-limit provisions (i.e. provisions in the Constitution which limit the period which office-holders may remain in office) do not affect current office-holders. [Trying to override section 328(7) in this way is legally impossible, because the section is an entrenched provision that can be varied only by a Bill which has been approved at a national referendum.]
Is the new clause constitutional? The new clause is substantially different from the clause in the original Bill and is therefore unconstitutional.
New clause amending functions of Civil Service Commission
A private Member of the National Assembly proposed an amendment to section 203 of the Constitution, which sets out the functions of the Civil Service Commission (which the Bill will rename the Public Service Commission). The amendment will compel the Commission to ensure that 10 per cent of the persons appointed to the Service are persons with disabilities. This is another of the amendments that was proposed orally and was not published in the Order Paper.
Is the new clause constitutional? The new clause was never in the original Bill and its insertion changes the Bill substantially. It is therefore unconstitutional.
Deletion of clause 17 (Alteration of functions of Zimbabwe Human Rights Commission)
This clause would have altered the functions of the Commission to take account of the new office of Public Protector. Since that office will not be created (see below) the need for the amendment falls away. The Committee agreed to delete the clause.
Is this change constitutional? Since it entails deleting a clause from the Bill it was within Parliament’s powers and is therefore constitutional.
Deletion of clause 18 (Creation of office of Public Protector)
Apparently it has been decided not to establish an office of Public Protector – or at least not to make the office a constitutional one – so the Committee agreed to delete this clause from the Bill.
Is this change constitutional? Again, since it entails deleting a clause from the Bill it is constitutional.
Amendment of clause 20 (composition of provincial and metropolitan councils)
Clause 20 of the Bill would have altered the composition of provincial and metropolitan councils so that they will both consist of an elected chairperson plus the mayors and chairpersons of all local authorities in their province and an additional ten persons elected on a system of proportional representation.
The Minister proposed amendments to the effect that the ten elected persons will all have to be women. A private Member also proposed an amendment to the effect that persons (presumably women) with disabilities would have to be included among those elected.
These amendments were all proposed orally; none of them was notified in the Order Paper. All were agreed to.
Are these changes constitutional? They alter the original clause substantially so they are unconstitutional.
New clause (Local authority elections)
The Minister proposed – again orally without notice – a new clause which would amend section 277 of the Constitution to provide that at least 30 per cent of persons elected to local authority councils must be women. The amendment was agreed to.
Is the new clause constitutional? The new clause changes the Bill substantially. It is therefore unconstitutional.
New clause substituted for clause 23 (International agreements)
Section 327(3) of the Constitution provides that all agreements concluded with foreign organisations and entities must be approved by Parliament if they impose fiscal obligations on Zimbabwe. Clause 23 of the Bill proposed to amend section 327(3) so that it would apply only to agreements between the Government and foreign States or international organisations such as the IMF; hence agreements between the Government and non-State institutions such as foreign banks would not require parliamentary approval.
The Minister proposed – once again without notice – that the clause should be replaced with a new one that would require all international agreements other than State loans and guarantees to be approved by Parliament. The new clause is slightly less drastic than the original one, but it still means that the Government will be able to borrow from organisations such as the African Export-Import Bank, and guarantee repayment of loans by parastatals, without seeking approval from Parliament.
Is the change constitutional? It probably is, because lessens the impact of the original amendment, though not to a great extent.
As we have seen, most of the changes which the National Assembly made to the Bill in its Committee Stage materially alter clauses of the original Bill or add new clauses which were never in the original Bill. Hence they are unconstitutional because they were made without going through the procedure laid down in section 328 of the Constitution. As a result the clauses which have been changed and the clauses which have been added to the Bill have not been properly passed by Parliament. This will remain so no matter how many Members vote for the Bill in its final reading today.
There is a moral to this: If you must amend the Constitution, do it properly:
- Consider the wisdom of the amendments carefully; think them through
- Draft them accurately so their meaning and effect are clear
- Ensure that the public has a full opportunity to discuss them, and
- Show proper respect for the Constitution and for parliamentary procedures.