Constitutional amendment 2 gets senate nod amid fears Mnangagwa turning authoritarian

May 4, 2021

The majority of senators today (Tuesday, 4 May 2021) voted in favour of Constitutional Amendment Bill number 2.

Brenna Matendere

The bill had already gone through the lower chamber—where the ruling Zanu PF that sponsored the bill has a super majority—and now awaits presidential assent. .

Sixty-five senators gave the nod to the proposed amendments while 10 opposed it and there were five abstentions

.The bill needed a minimum of 54 nods to pass the stage.

Opposition leader, Douglas Mwonzora of the MDC-T party told journalists after the passing of the bill that his party voted in favour of the women’s and youth quotas contained in the proposed amendments, but added that they had been opposed to the removal of the running mate clause which his organisation felt must go to a referendum.

The bill will see 27 changes being made on the constitution.

However, experts said it was a reversal of the 2013 provisions voted for by citizens in a referendum that approved the new constitution.

Critics say the amendments are essentially meant to consolidate President Emmerson Mnangagwa’s power ahead of 2023 elections.

A number of the amendments give more power to the President. 

Clauses 2 to 8 of the amendment bill seek to remove a provision for running mates of presidential candidates on elections and replaces the section with a section that will allow the winning candidate to appoint his deputies. .

Clause 10 of the amendment proposes to increase the number of ministers who can be appointed from outside parliament by a president from the current five to seven. This will give the president power to appoint cabinet ministers close to him but not elected by the electorate.

Clause 14 proposes to give the president power to appoint judges without them being subjected to public selection, and experts say this would compromise the independence of the judiciary as the judges are likely to show favour to their appointing authority.

The current constitution dictates that judges must end their tenures upon reaching 70 years. However Clause 14 of the bill seeks to change that and give the president power to extend the tenures on yearly intervals “so long as the president is satisfied that they are fit”, leaving their terms of office to the whim of the head of state.  

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The current tenure of Chief Justice Luke Malaba ends on 15 May 2021 when he reaches 70 years but if the bill is passed by Senate before that period, he could be re-appointed by President Mnangagwa.

Last week on Thursday, Justice minister, Ziyambi Ziyambi, brought to senate amendment of clause 13 of the bill, which deals with the tenure of the office of judges and their retirement age, which has been pushed from 70 to 75 years.

Several other clauses seek to give unfettered power to the sitting president.  

Clause 19 of the bill proposes that the president will continue to appoint the prosecutor general, but the post, when vacant, will no longer need to be advertised or interviews carried out. The clause therefore removes the provision for the prosecutor general to be appointed on merit since no interviews would have been conducted.

Clauses 20, 21, 22 and 25 propose to remove members of parliament from provincial councils while clause 11 seeks to extend the parliamentary quota system by 10 years from 2023 when it expires.

Constitutional law expert, Lovemore Madhuku, told Grazers News that the amendments undermined democracy.

“It is not as if it is the first time that the president is being given (extra) powers. The 2013 constitution already gave the president too much powers. So what we are seeing is additional power being given to him and that is not good for the country at all. It undermines democracy,” he said.

Madhuku said more consultations must have been carried out with citizens and relevant stakeholders.

“We spoke about this bill long back as the NCA (National Constitutional Assembly) party and clearly stated that wider consultations were supposed to be done. We are disappointed that our submissions were thrown out,” he said

Veritas spokesperson, Valentine Maponga, rapped government for “fast-tracking” the amendments.

Under normal procedure, the speaker of parliament must give at least 90 days’ notice in the gazette before the bill is introduced in parliament. 

This allows the public to scrutinise the proposed amendments.

 However this was not done before the bill was introduced in parliament in March 2020.

Section 328 (4) of the constitution requires parliament to convene meetings at which members of the public can express their views on proposed constitutional amendments.

However, it was not sufficiently done as the country moved into the Covid 19 lockdown which restricted gatherings.

 “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,” said Maponga.

He added that parliament was supposed to delete some clauses that citizens had opposed. .

On 7 April 2021, the senate passed the Constitutional Amendment Bill number 1 which again gave more powers to the president.

He will have unchecked powers to appoint the chief justice, deputy chief Justice and the judge president of the High Court without being compelled to take recommendations from the Judicial Service Commission (JSC) as provided for in the 2013 constitution.

Paul Mangwana, the ruling Zanu PF secretary for legal affairs who was co-chairperson of the Constitution Parliamentary Select Committee (Copac) which coordinated the writing of the new constitution said there was no need for a referendum to be conducted on the amendments as suggested by Mwonzora.

“You do not necessarily have to run a country through a referendum every time… We agreed during the constitution-making process that if at any stage it became necessary to amend the constitution, due processes should take place,” he said.

Mangwana also said the MPs in parliament represent the wishes of the people in their constituencies so the amendments were supported by majority of the citizenry.

Other key members of Copac, Jessie Majome and Douglas Mwonzora were not available for comment.

President Mnangagwa rose to power in 2017 through a military-assisted coup and has been accused of influencing amendments to the constitution to manage succession battles in his Zanu PF party.

Critics say the scrapping of the running mate clause was made to checkmate his deputy, Constantino Chiwenga, who is understood to be eyeing the presidency after having led the coup.

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