Mwonzora Denounces Over-concentration Of Power In The President

Opposition MDC-T president, Senator Douglas Mwonzora has denounced the intention to amend the Constitution to give the president the power to appoint the Chief Justice and deputies saying that would be over-concentration of power.

He made the remarks during a Senate session on the Constitution Amendment Bill No. 2 which among other things seeks to remove the running mate clause. Below are excerpts from Mwonzora’s submission in the Senate:

HON. SEN. MWONZORA: … I now want to go to a point which I think is really very serious. Everyone wants Zimbabwe to be reintegrated into the international community – not any Zimbabwean; not anyone who has Zimbabwe at heart enjoys the international isolation of Zimbabwe.  We need to do those things that make the international isolation go away. One of the things that make it remain is the way we do our internal processes.  

Mr. President, on the kind of judges, I am sure the Minister agrees with me that it will be a sad day when all the judges of the Supreme Court; all the judges of the High Court are illegal. So we want to make sure that the judges are not illegal. The amendment that has been introduced has a clause that makes the judges illegal.

First of all, Section 328 of our Constitution says, if there is a term limit but there is need to extend that term limit, that extension shall not benefit the person holding that office. The logic of that section was to dis-incentivise leaders who wanted to extend their terms. So, if you are a President who then uses his popularity to extend the term of office, the clause says you shall not benefit from that extension. If you have commissioners for example, who have a limited term of office and you introduce an extension during their term, that extension does not benefit them. If you have judges now who have term limits and you introduce an extension during their tenure, that extension does not benefit them. What the Minister had done in the original Bill, is that he left that question open and with due respect, he was correct. What the Minister subsequently did now, was to introduce another sub-clause 4, which says notwithstanding Section 238 (7), the provision of sub-sections 1,2,3 of this section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court. What you are doing Hon. Minister, through you Mr. President is; you are extending a term limit and our law says when we are extending a term limit, the incumbent shall not benefit.  So this extension is unconstitutional. This extension is illegal.

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Now, through this new extension, the new clause – I do not know at what stage it came into being. The Minister is basically amending Clause 328 so that the Clause 328 does not apply to judges. This is amending.  Our Constitution is very clear. When you are amending a clause which deals with human rights; when you are amending a clause which deals with land; when you are amending a clause which deals with term limits, you do not amend it in the manner that you amend other ordinary clauses. It goes for a referendum. That has not been done in respect of this clause. That is why you hear people say the amendment is unconstitutional.  A constitutional amendment where the Constitution says I am amended this way; when it is a clause like this, I am amended via a referendum, we must follow that. I agree with you Hon. Minister, the Constitution can be amended but it says how it shall be amended. Each clause is amended in a particular way.

Here comes another issue, in the Constitution we made it clear that when you seek to amend the Constitution, you must give notice to the people of Zimbabwe of what you want to amend. The Speaker must give notice to the public, I think for 90 days on exactly what you want to amend and call upon Zimbabwean people to put their input in the amendment. When the notice was given, the Bill was as it was saying we are giving notice that there is a new method of appointment of judges. Our thinking is that the new law operates from the time that it is promulgated. As time went on, the Minister then introduced without notifying the public, that we are protecting the current judges and these judges are going to benefit from extension of the time limit. To that end, this is a dangerous thing.  

Lastly on that issue Mr. President Sir, Parliament is there to make laws for the just governance of Zimbabwe.  We have a responsibility to keep within our own Constitution. We have a responsibility of stopping potential danger.  Now what we have just done with this new introduction, Hon. Minister, I think I saw it on the Order Paper, that introduction is now introducing an extension of term limits that benefits the incumbent.  So today it is Judges. How do we know that tomorrow it is not about commissions whose terms are limited? How do we know the day after it is not the President whose term of office is limited by the Constitution now that you have introduced in the Constitution that you can suspend the operation of section 328 which says you shall not benefit from the extension. When we did it, we were aware that those who run us, who govern us interact. I am sure the President interacts with the Chief Justice during the course of their work, interacts with the Speaker, the President of the Senate and so on.  So what we wanted to avoid was you to use your interaction to extend each other’s terms and benefiting from that extension.

 I have practiced law in Zimbabwe for almost 30 years and I have knowledge of the men and women who are populating our Supreme Court and Constitutional Court. I like most of them. They are nice people, they are fun and intelligent but their term of office, if it has expired, it has expired.  There is no need to create special favours for people. That is the basis of our argument Mr. President Sir, that it is not necessary to go that route. Our law says if we extend your term of office while you are in office, you do not benefit. What this new law is saying is that you in fact can benefit. Maybe the Minister may not have seen it that way but it is a dangerous precedence and also now because you are introducing an amendment to Section 328 in so far as it applies to Judges basically what you are saying is Section 328 does not apply to Judges, therefore you are amending Section 328.

Having amended Section 328, it means you must follow the procedure because it says when you are amending Section 328, you amend it as if you are amending Chapter 4. Chapter 4 deals with human rights and in the Constitution, we said that the Executive does not touch the human rights of the people of Zimbabwe. When you want to change the human rights, when you want to amend that section, it goes to referendum, ipso facto. By the same fact, when you want to amend term limits you follow the same procedure. The danger is to have our Judges maybe on the basis of the majority here, continuing in the Supreme Court, in the Constitutional Court but being illegal Judges. That makes Zimbabwe a laughing stock.

Mr. President, I just also want to say the Minister may say this amendment was suggested by someone maybe in Parliament.  Parliament has no right to do that. It has no right to amend Section 328 without the procedures being followed. Those, Mr. President Sir, are my submissions. I strongly feel that when it comes to the Judiciary, when it comes to the Judges, we have introduced something completely illegal.  

The Hon. Minister has said that he does not think that it is a good idea that the Chief Justice be subjected to interviews when going to the Supreme Court.  Here was the logic. A Judge who is suitable for the High Court is not necessarily suitable for the Supreme Court, is not necessarily suitable for the Constitutional Court. So you can do well in the High Court or you can make mistakes in the High Court and the purpose of the interview is to make you account for yourselves. Why do you think you deserve promotion when you did this and that wrong.  Let us not confuse rude interviewers who are there just to humiliate the interviewee. You can still deal with that by putting rules on how people can be interviewed.

Yes, I saw I think one of the Judges was humiliated by the late Chief Justice Chidyausiku. She was asked ‘but you are alleged to have taken a bribe’. That was wrong interviewing. The fact that someone was interviewed in a wrong manner does not mean interviews are wrong. We want our people to have trust in our systems, we want our people to have confidence in the judicial systems, we want our people to appreciate that they are being led by intelligent people and that is what interviews bring. We want our people to see that these people are knowledgeable and we are being tried by knowledgeable people. That is the purpose of the interview. Now if you think that the Judicial Services Commission is not good enough, we can have a compromise. Hon. Minister, if I may suggest that the interviews be done by the Committee on Standing Rules and Orders. We interviewed some people for the National Peace and Reconciliation Commission. We did not humiliate them.  We treated them with respect and the same can happen with senior Judges.

In the United States, maybe slightly different but they are still subjected to debate by the Congress. I think, in some instances and by the Senate in others. We can still also copy that, but for Judges to be taken to the Supreme Court on the whims of the President is over-concentration of power in the President.  Do not think about the President that you have now. The Constitutions are not made for the angels of today but for the devils of tomorrow- [HON. SENATORS: Hear, hear.]- Let me give an example of the person you do not want to be president and that person happens to be president, let us say it is Mr. Mwonzora and he has powers to appoint judges of the Supreme Court without being taken to account. It happened in the United States of America. I think the President was Marshal or somebody. They packed the Supreme Court with their friends. How you vaccinate against that is you interview them.

So let us not open up for potential abuse by the Executive in that regard. With that Mr President Sir, I wish to end my submissions. We have to act legally in this Parliament. Thank you.

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