Law Society Of Zimbabwe Speaks On Proposed Constitutional Amendments {FULL TEXT}

THE LAW SOCIETY OF ZIMBABWE

STATEMENT OF THE LAW SOCIETY OF ZIMBABWE ON THE PROPOSED CONSTITUTIONAL AMENDMENTS

On the 17th of December 2019, Cabinet at its 45th meeting approved several amendments to the Constitution. Some of the notable proposed amendments relate to the appointments of Vice Presidents, the Prosecutor General, Public Protector, promotion of judges and the terms of office of judges.

The other notable proposed amendments relate to the composition of the provincial councils and the extension of the provision on the women’s quota which was scheduled to end in 2023.

The Constitution provides for its amendment. Although amendments to the Constitution are allowed these ought to be necessary for the promotion of the rule of law and protection of the principles of democracy. Our Constitution is a democratic document which came out of extensive consultations.

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It is a national document which should be enduring. Amendments to the Constitution must be necessary for the enhancement of enshrined rights, accountability and good governance. Amendments must not be retrogressive.

In terms of Section 92 of the Constitution, a presidential candidate chooses running mates who upon election become the national Vice Presidents.

The rationale for this provision was to introduce nondisruptive succession planning whilst ensuring that in the event of a Vice President taking over the office of President he would be having the people’s mandate.

The effect of the proposed amendment to Section 94 means that Vice Presidents will no longer be elected but appointed by the President.

This removes the transparency and democratic process sought to be achieved by Section 92 in relation to the assumption of these important offices.

In addition, the Vice President’s tenure will be at the pleasure of the President. An amendment is expected to cure a problem or mischief. This is not apparent in the present case. The proposed amendments further seek to change the procedures for the appointment of the Prosecutor General.

The current procedure for the appointment of the Prosecutor General is similar to that of the judges. This is a transparent way of appointing this important office, which like the judiciary ought to enjoy prosecutorial independence.

The proposed amendment whereby the President appoints the Prosecutor General upon consultation with the Judicial Services Commission (ISC) is reverting to the old constitution. The current provisions promote transparency in the appointment process.

This will not be achieved under the proposed amendment. It is not clear what mischief the proposed amendment seeks to address.

The fact of the matter though is that the amendment is retrogressive. It emasculates a position that is pivotal to our criminal justice.

The amendment will remove the Prosecutor General’s independence. The appointment system also does not guarantee meritocracy as the basis for appointment.

This cannot be achieved by simply consulting the JSC. In any case in terms of section 339, such consultation may not be binding on the President.

Section 180 sets out the conditions that must be met in relation to the appointment of judges. The proposed amendment seeks to provide for the President to appoint a sitting judge to a higher court upon consultation with JSC.

This approach seeks to reverse the elaborate, and transparent system currently in place. It is not clear why we should depart from the current system. The proposed changes will take us back to the pre-2013 era where judicial appointments were shrouded in a veil of secrecy.

The proposed extension of the tenure of judges albeit on a contract basis and subject to medical certification on fitness is not desirable in a country with a vibrant legal profession. There are many legal practitioners who are fit to hold the office of judge.

The introduction of the office of the Public Protector should be based on a true desire to achieve administrative justice, especially by public offices.

The 2013 Constitution deliberately omitted this institution on the basis that the functions could be effectively undertaken by the Zimbabwe Human Rights Commission.

The Ministry of Justice was recently lamenting that this commission is under-resourced. Instead of properly funding the Zimbabwe Human Rights Commission, the Cabinet is creating another institution which will have its own resource chewing bureaucracy.

On the other hand, the present Constitution already provides for the establishment of an independent complaints mechanism to deal with misconduct by members of the security sector.

This has not been instituted and yet Cabinet finds it necessary to create the public protector’s office. The Executive is failing to diligently and without delay perform all constitutional obligations as provided in Section 324.

The proposal to remove MPs and Senators from provincial councils also appears ill-conceived. The presence of these members was supposed to bring the nexus between national and local development.

The prosed amendments will perpetuate the disconnect between the national Programmes and the local/Provincial Programmes thus creating development inertia.