Constitutional Amendment No.2 creates constitutional crisis – Madhuku

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Our assistant editor Gift Phiri speaks to Polad member, NCA leader and constitutional law expert Lovemore Madhuku about President Emmerson Mnangagwa’s attempt to railroad the Constitution of Zimbabwe Amendment (No. 2) Bill with controversial provisions, the Polad engagements and the prospect of Nelson Chamisa joining that forum. Find below excerpts of the interview.

Q: Prof Madhuku, thanks so much for giving me a few minutes of your time. President Emmerson Mnangagwa is railroading the Constitution of Zimbabwe Amendment (No. 2) Bill with provisions to reduce Parliament’s oversight of foreign agreements, give the president power to appoint and dismiss vice presidents, and will also amend the constitutional provisions for the appointment of judges and their tenure in office. Do you think this bill is constitutional?

A: A Constitutional Bill seeks to amend the Constitution, so the general rule is that it cannot be described in terms of being “constitutional” or “ unconstitutional “. However, in exceptional circumstances, a Constitutional Bill may be unconstitutional such as where its proposals go against other provisions that are not being amended. This Bill has some unconstitutional provisions. One such provision is that which seeks to raise the retirement age of judges of the Supreme Court. It is unconstitutional to seek to apply that provision to the current judges because that is specifically prohibited by section 328 subsection 7 of the current Constitution.

Q: Given that the bill may be unconstitutional, who would have the best standing to do something about it?

A: There are three constitutional organs with the primary responsibility of ensuring that there is absolute compliance with the Constitution. These are the president, Parliament and the Constitutional Court. In section 90, the president is required to uphold, defend, obey and respect the Constitution. In section 119, Parliament must protect the Constitution. Section 167 completes the picture by giving the Constitutional  Court the exclusive jurisdiction to determine whether Parliament or the president has failed to fulfil a constitutional obligation.

So the president has a constitutional obligation to ensure that his Cabinet does not approve and send to Parliament unconstitutional Bills. The very act of allowing the gazetting of a Bill that has provisions that patently breach section 328(7) of the Constitution is a failure to uphold the Constitution on the part of both the President, in sending the Bill to Parliament, and Parliament, in gazetting the Bill. Both may be taken to the Constitutional Court by any citizen. The public has a duty to point this out and get an answer from the president.

Q: A more general question for you about the amendments.  Under section 328(7) of the Constitution, if a “term-limit provision”, that is a constitutional provision that limits the length of time a person may hold office, is amended so as to extend that time, the amendment will not apply to anyone who held the office before the amendment. The existing constitutional provisions [section 186(1) & (2)] which state that judges of the Constitutional Court and the Supreme Court must retire on reaching the age of 70 are term-limit provisions, so the amendments which would allow them to remain in office after the age of 70?

A: It is clear that section 328(7) will not allow the proposed changes on mandatory retirement to apply to the current judges of the Supreme Court. If the amendments become law, they will only apply to new judges to be appointed after the amendments. Yet it is well known that the government wants the proposals to apply to the current judges. That is unconstitutional.

It is totally unacceptable because it will create a constitutional crisis when the provisions are challenged in the Constitutional Court where the same judges benefiting from the amendment are presiding members.

Who will determine the challenge? I expect the president to take this into account as he considers whether or not to withdraw the Bill. All the judges of the Supreme Court would have to recuse themselves, thus creating an undesirable situation in the judiciary.

Q: But there is a definite lack of enthusiasm from other senior politicians. What is the position of Polad, which you are member of, on this?.

And tell us about Polad. What do you guys do in that forum?

A: Polad is a dialogue. We meet to discuss ways of moving the country forward in all facets: economic, political and social. We analyse our current situation and offer ideas. We have already held a very successful economic summit where government received excellent advice on the economy from all stakeholders, including business, development partners and friendly countries. That advice was given publicly.

We now wait to hear from the government on what it is doing about that advice. In the political arena, we have already advised government not to go it alone on the Constitution. The future of Polad is squarely in the hands of the president: he has to prove that he is truly a listening president. A listening president is seen to be implementing advice from his listening sessions.

Q: Have you told ED about your reservation on the Constitutional Amendment No. 2

A: Polad has made its position clear: it has advised the government to withdraw the Bill to provide more scope for extensive inputs from the people on constitutional and electoral reforms ahead of 2023. Polad prefers one Omnibus Constitutional Amendment Bill that has all desirable amendments that address our perennial political and electoral challenges. This Polad position was unanimously reached at the last Polad executive Plenary held in Bulawayo on February 12, 2020. The president is seized with that position. It is up to his Government to accept or reject that advice. Polad is not the government. It exists to offer ideas and advice. The final decision lies with the president and his government.

Q: What was ED’s reaction?

A: I have already told you that ED is currently seized with the Polad position. He knows every detail about the meeting of February 12, 2020 because he had a personal representative. Apart from that, Polad has co- conveners Justice (Sello) Nare and Sangarwe Mukahanana.

These two chaired the meeting. We have a secretariat headed by Virginia Mabhiza, who also happens to be the permanent secretary in the very ministry that is responsible for the Bill. So the president is aware both as president of Zanu PF, a member of Polad and as president of the country — as briefed by the co-conveners and the secretariat.

Q: What do you think about Nelson Chamisa’s insistence on staying away from Polad

A: Chamisa is very much entitled to his view of Polad. I respect his position although I respectfully disagree with it. He is the best person to decide what is good and desirable for him and the political party he leads.

Q: Do you think Chamisa joining Polad will change the course of this country?

A: I believe it will be very good for the country if the MDC Alliance joins Polad.

Q: What are the perks you are getting in Polad? Some people claim you guys are getting so many featherbeddings. What benefits are you getting from Polad?

A: There are no perks in Polad. Absolutely nothing. The government pays for transport, accommodation and food. The payments for accommodation and food are paid directly to the service providers.

Transport is on a refund basis. Accommodation only arises where the venue of the meeting is away from one’s place of residence. It is political mudslinging to claim that there are perks. There are no sitting allowances. There are no motor vehicles. There are no perks in Polad.

Q: What will be the consequences from ED’s amendments to the Constitution?

A: The current proposals to amend the Constitution merely from the mere say so of Zanu PF are most unfortunate. They undermine the democratic path that we seek to pursue as a country. They also destroy the spirit of dialogue. Ahead of 2023, some aspects of the Constitution must be amended to deepen our democracy and bring about a more conducive environment for elections but these amendments must be people-driven and truly come from the people.

Q: Still, you think our democracy is resilient enough to survive this ED meddling? Many are very afraid for the next four years.

A: Our democracy is resilient. Our people are strong. ED will not succeed if he ignores both the Polad advice and the concerns raised by the general public. I do not believe that with all the opposition to the Constitutional Amendment Bill No 2, ED will behave like President Mugabe and bulldoze his way.

The Zimbabwe of 2020 is different from the Zimbabwe of the 1990s. Why would the public allow the government in 2020 to ignore everything that is being said about the Bill and proceed as if the people are celebrating the amendments?  There is growing unity against the Bill in its current form.

Q: You’re a leading expert in Constitutional law, having taught this for years at the UZ and also led the NCA, which has now morphed into a political party. In 2013, the country passed a new constitution in a referendum where over 95 percent voted for it. Several years later, most of the provisions of that charter are yet to be honoured. What’s your comment?

A: It is not 95 percent but 93 percent. You must acknowledge that 7 percent voted against the Constitution.

It is a matter of regret that the Constitution is not being implemented on many fronts.  I blame both the government and the people.

Although 93 percent voted for the Constitution, the level of consciousness in respect of constitutional issues is still low.

The process was not genuinely people-driven, that is why many people still believe a government of the day may initiate constitutional amendments. We have to work extra hard to inculcate constitutionalism.

Q: Do you regret disbanding the NCA NGO, given that there is now zero momentum in dissuading government from such experiments such as Constitutional Amendment No. 2?

A:: I do not regret the transformation of the NCA into a political party. The public will soon appreciate the role of the NCA party in the constitutional developments of the country. After 2013 it was no longer sensible for the NCA to continue with the constitutional agenda as a civic organisation.

Now everyone realises the importance of maintaining vigilance via a vis the Constitution. The NCA as a party is better placed than civic groups to promote constitutionalism under the current circumstances.

Q: Dont you think this is where ED could do damage in so many areas. How do you see this playing out?

A: As I have said, the people will not allow ED to damage the democratic growth of this country. So I do not see any value in pursuing your misguided notion that ED will succeed in destroying the foundations of the Constitution.

Our interactions with him in Polad convince me that he will be persuaded to follow a more inclusive process.

Q: For the average citizen concerned about ED, what do you think are the best ways to fight back?

A: The best ways of fighting back are tried and tested. All that is required is for people to speak out and say Hatizvidi Hatizvidi. There is no closed list of how to say Hatizvidi Hatizvidi. I believe that if this message is loud and clear, it will be respected.

Thanks so much for your time and for all you do.  I hope we can do this again soon.

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