BILL WATCH 12/2022
[15th March 2022]
NOW AT LAST IN FORCE FOR ZIMBABWE
The African Charter on Democracy, Elections and Governance
The Ministry of Foreign Affairs and International Trade have just informed us that the constitutional processes and the African Union [AU] processes to ratify the African Charter on Democracy, Elections and Governance (‘the Charter”) [link] have been completed.
President Mnangagwa, as one of his first acts after assuming office, had signed the Charter on the 21st March 2018 at an AU Assembly of Heads of State and Government in Kigali, Rwanda. President Mnangagwa’s signature of the Charter did not, however, make it legally binding on Zimbabwe as a State party, either in terms of the Constitution or in terms of the Charter.
The Charter states that there must be completion of all constitutional processes in Zimbabwe before we could ratify the Charter, and our Constitution in section 327 required both Houses of Parliament to approve the Charter.
Obtaining Parliamentary approval
Veritas lobbied to have this done before the elections and on 8th May 2018 the Minister of Justice, Legal and Parliamentary Affairs signalled the Government’s intention to seek this approval by tabling the Charter in the National Assembly for the information of MPs.
Unfortunately, however, early approval by the National Assembly and the Senate was prevented by the early cessation of Parliamentary sittings in June, ahead of the 30th July harmonised elections. Then, the new Parliament was inevitably busy with other business, including preparations for and passing of the 2019 Budget. Veritas lobbied the Speaker and the Ministry of Justice, Legal and Parliamentary Affairs in order to ensure that the constitutional requirement of Parliamentary approval of the Charter would not be overlooked when the new Parliament had the opportunity to do so– see Bill Watch 13/2019 of 12th March 2019 [link].
Eventually, a year after the President had signed the Charter, resolutions by both Houses of Parliament approving the Charter were passed during March 2019.
Depositing Zimbabwe’s Instrument of Ratification of the Charter
The Charter itself requires a country seeking to become a State party to the Charter and bound by the Charter, Zimbabwe must follow up the Parliamentary approval of the Charter by formally ratifying the Charter and depositing the instrument of ratification with the Chairperson of the African Union [see the Charter, Article 47 and the definition of “State Party” in Article 1].
In our bulletin reflecting on the International Day of Democracy September last year [link] Veritas expressed concern that Zimbabwe had still not ratified the Charter. We pointed out that it was already a long time since it had both been signed by the President and approved by Parliament. After further lobbying that procedure has now been completed. President Mnangagwa has signed the Instrument of Ratification and Zimbabwe’s Ambassador to the African Union has deposited it with the Chairperson of the African Union recently. Upon the deposit of its Instrument of Ratification Zimbabwe became a State Party bound by the Charter.
About the Charter
The Charter was adopted on 30 January 2007 at an AU Assembly of Heads of States and Government. The Charter draws inspiration from the Constitutive Act of the AU and seeks to promote and emphasise “the significance of good governance, popular participation, the rule of law and human rights” and speaks strongly against “unconstitutional changes of governments” and encourages instead, “… change of power based on the holding of regular, free, fair and transparent elections conducted by competent, independent, and impartial national electoral bodies.”
A majority of AU States and most SADC States have both signed and ratified the Charter and it is becoming the accepted blueprint for democracy, elections and governance for successful African States.
The Charter was adopted by the African Union in 2007 as a roadmap to promote better governance in Africa. It required 15 countries to ratify it in order for it to become operational [Article 48], which did not occur until February 2012.
The Charter’s scope is broad, as indicated by its title and also by its Chapter headings, which include:
· Democracy, Rule of Law and Human Rights
· The Culture of Democracy and Peace
· Democratic Institutions
· Democratic Elections
· Sanctions in Cases of Unconstitutional Changes of Government
· Political, Economic and Social Governance.
To give an idea of the content of the Charter, we take examples from some of the chapters:
Chapter 4 – Democracy, Rule of Law and Human Rights
Article 8 deals with elimination of discrimination, rights of minorities and other marginalised and vulnerable people, inclusivity and citizen participation. Article 9 deals with sustainable development and human security. Article 10 deals with supremacy of national constitutions.
1. State Parties shall eliminate all forms of discrimination, especially those based on political opinion, gender, ethnic, religious and racial grounds as well as any other form of intolerance.
2. State Parties shall adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups.
3. State Parties shall respect ethnic, cultural and religious diversity, which contributes to strengthening democracy and citizen participation.
State Parties undertake to design and implement social and economic policies and programmes that promote sustainable development and human security.
1. State Parties shall entrench the principle of the supremacy of the constitution in the political organization of the State.
2. State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.
3. State Parties shall protect the right to equality before the law and equal protection by the law as a fundamental precondition for a just and democratic society.
Chapter 5 – The Culture of Democracy and Peace
Under Article 12 State Parties undertake to implement programmes and carry out activities designed to promote democratic principles and practices as well as consolidate a culture of democracy and peace. To this end State Parties shall:
1. Promote good governance by ensuring transparent and accountable administration.
2. Strengthen political institutions to entrench a culture of democracy and peace.
3. Create conducive conditions for civil society organizations to exist and operate within the law.
4. Integrate civic education in their educational curricula and develop appropriate programmes and activities.
Chapter 9 – Political, Economic and Social Governance
Under Article 33 State Parties undertake to institutionalise good economic and corporate governance, inter alia:
1. Effective and efficient public sector management;
2. Promoting transparency in public finance management;
3. Preventing and combating corruption and related offences;
4. Efficient management of public debt;
5. Prudent and sustainable utilisation of public resources;
and so on, up to the final item:
13 An efficient and effective tax system premised upon transparency and accountability.