CONSTITUTION WATCH 28/2013
[20th May 2013]
The New Constitution Bill has been passed by both Houses and Must Now Go
to the President for his Assent
The Constitution of Zimbabwe Amendment (No. 20) Bill went through all its stages in the Senate on Tuesday 14th May. Senators had first approved a fast-tracking resolution suspending the relevant Standing Orders to allow all the Bill’s stages to be taken the same day. At the Third Reading stage it was passed by 75 affirmative votes, out of the total possible Senate membership of 99 – more than the two-thirds majority required by section 52(3) of the current Constitution to pass any constitutional Bill. There were no dissenting votes. A few minor tidying-up amendments were made during the Committee Stage on the motion of the Minister of Constitutional and Parliamentary Affairs [see below].
The Bill was then sent back to the House of Assembly for consideration of these amendments. This consideration took place at the beginning of the House’s sitting on Wednesday 15th May. The House approved the amendments without debate and passed the Bill in its final form by 148 affirmative votes out of the a total possible House membership of 215 – more than the necessary two-thirds majority. There were no dissenting votes.
The Government Printer is now preparing the Bill in its final amended form for Parliament to send on to the President for his assent. There is a special print run for these presentation copies, which are on distinctive high quality paper, light-gold in colour, and therefore called the “gold copies”. The President signs a small number of these gold copies and the public seal is attached. It is only after the President has signed that the gazetting of the new Constitution can follow.
One of these gold copies, authenticated by the President’s signature and the public seal, will later be “enrolled on record” in the office of the Registrar of the High Court, where it can be consulted as “conclusive evidence” of the new Constitution should it ever be necessary to do so [see section 53(1) of the current Constitution].
The President’s signing of the new Constitution is likely to be done at a special ceremony and be broadcast to the nation.
The Amendments that Parliament Made
All the amendments were proposed by the Minister of Constitutional and Parliamentary Affairs with the agreement of the other GPA parties. There were no changes of substance. [Note: Amendments made during the Bill’s first passage through the House of Assembly were indicated in Bill Watch 27/2013 of 13th May with comments on their relevance – mostly correcting cross-referencing errors or ensuring interpretive clarity. The amendments made in both the House of Assembly and Senate are described below, starting with section 43 of the new Constitution and working through to the Sixth Schedule. The amended provisions are indicated by the new words being underlined and are in and deleted words crossed out.
Section 43 – Continuation and restoration of previous citizenship
Words “effective date” deleted and “publication day” substituted in their place, to remove a hitherto unnoticed inconsistency with the provision in paragraph 3 of the Sixth Schedule stating that the whole of the Chapter on Citizenship comes into operation on publication day. Section 43 will now read as follows:
now read as follows:
“(1) Every person who, immediately before the publication day
e ffective date, was a Zimbabwean citizen continues to be a Zimbabwean citizen after that date.
(2) Every person who was born in Zimbabwe before the publication day
e ffective date is a Zimbabwean citizen by birth if—
(a) one or both of his or her parents was a citizen of a country which became a member of the Southern African Development Community established by the treaty signed at Windhoek in the Republic of Namibia on the 17th August, 1992; and
(b) he or she was ordinarily resident in Zimbabwe on the publication day
e ffective date.”
Section 110(6) – Executive functions of President and Cabinet
Deletion of paragraphs included by mistake after section 110(6), but obviously not belonging to it, leaving it as follows:
“(6) In the exercise of his or her executive functions, the President must act on the advice of the Cabinet, except when he or she is acting in terms of subsection (2) above.
( a) the appointment of Vice-Presidents in terms of section 93 or 101; (b) the appointment or removal of Ministers and Deputy Ministers; ( c) the assignment or re-assignment of functions to Vice-Presidents, Ministers and Deputy Ministers, and the cancellation of any such assignment or re-assignment; (d) the appointment of persons to offices and posts in terms of this Constitution, or the removal of persons from such offices and posts, where the President is required to do so on the advice of some other person or authority.”
Section 124(1)(b) – Composition of National Assembly
Correction of an obvious error:
“(1) The National Assembly consists of—
(a) two hundred and ten members elected by secret ballot from the two hundred and ten constituencies into which Zimbabwe is divided; and
(b) for the life of the first two Parliaments after the effective date, an additional sixty women members, six from each of the provinces into which Zimbabwe is divided, elected
through a system of under a party-list system of proportional representation based on the votes cast for candidates representing political parties in a general election for constituency members in the provinces.”
Section 211(4) – Defence Forces
Words inserted so that provision will read as follows:
“(4) An Act of Parliament must provide for the organisation, structure, management, regulation, discipline, the promotion and demotion off officers and other ranks and, subject to section 218, the conditions of service of members of the Defence Forces.”
[Note: The same insertion was made in the corresponding provisions for the Police Service [section 219] and Prisons and Correctional Service [section 227].]
Section 218(1)(a) – Defence Forces Service Commission
Word substituted in first item of list of functions of the Defence Forces Service Commission]:
“(1) The Defence Forces Service Commission has the following functions
(a) to employ
appoint qualified and competent persons to hold posts or ranks in the Defence Forces;”.
[Note: The Minister explained the change to the House of Assembly thus: “The reason is simple; you do not appoint people to a service. You employ people in a service.” The same change was made in the corresponding provisions for the Police Service Commission [section 223] and Prisons and Correctional Service Commission [section 231] – but not to the corresponding provision for the Civil Service [section 203], to which the same reasoning applies.]
Section 268(2) – Provincial councils
The amendment corrects an obviously wrong cross-reference, making it clear that the ten persons elected to each provincial council under a proportional representation system have the qualifications required of a member of the National Assembly.
Section 271 – Committees of provincial and metropolitan councils
Correction of a cross-reference in prescribing fitness to chair such committees.
Section 272 – Chairpersons of Provincial Councils
Deletion of  the reference to Metropolitan Councils from the section’s heading, and  subsection (9) leaving it to an Act of Parliament to cover the chairing of such councils. Section 269 deals fully with the chairing of the two Metropolitan Councils of Bulawayo and Harare, so these two inconsistencies had to be removed.
Third Schedule – Administering Oaths/Affirmations to Members of Parliament
The Third Schedule sets out the wording of the various oaths to be taken by persons appointed or elected to public office, from the President down. Each oath is accompanied by a note repeating what has already been laid down in the relevant section of the Constitution as to the person before whom the oath must be taken. Section 128 states that members of Parliament must take their oath before the Clerk of Parliament, which is how these oaths have been for decades. The Bill’s original note to this oath mistakenly referred to it as having to be taken before the Chief Justice or another judge. The amendment corrects the inconsistency, so that the note now reads as follows:
“This oath or affirmation is to be taken before the Clerk of Parliament.”
[Bill Watch 27/2013 of 13th May questioned the need for these three changes.]
Paragraph 3 – Commencement of the Constitution
There are two changes to this paragraph:
1. Paragraph 3(1)(d) A new subparagraph (d) is substituted:
“3.(1) This Schedule, together with--
(d) Chapter 6 relating to the election of Members of Parliament, the summoning of Parliament after a general election and to the assent to Acts of Parliament by the President;
d) Chapter 6 relating to the election of Members of Parliament and the summoning of Parliament after a general election;”.
2. Paragraph 3(3)
The cross-reference “subparagraph (1)(i)” becomes “subparagraph (1)(j)”:
“(3) Between the publication day and the effective date, the provisions of this Constitution specified in subparagraphs (a) to (j)
(i) of subparagraph (1) override the equivalent provisions of the former Constitution.”
Paragraph 18(7) – Continuation of magistrates courts and traditional courts
The commencement of this provision is changed from the effective date to the publication day:
“(7) The magistrates courts, traditional courts and any other courts that were established by an Act of Parliament before the publication day
effective date continue in existence on and after that day as if they had been established by an Act referred to in section 174, and the decisions of those courts given before the publication day effective date have effect accordingly.
[Note that the similar provision for the Supreme Court, High Court, Labour Court and Administrative Court refers to the effective date but was not changed.]
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