ZIMBABWE - HARARE - On Thursday November 27, 2008, the negotiators from the three negotiating parties initialled their signatures to the draft of the Constitution of Zimbabwe Amendment (No. 19).
The agreed draft is now in the public domain.
It is inevitable that the majority of Zimbabweans both within the country and in the Diaspora, would like to gain an insight into how exactly the power-sharing agreement that was solemnized on September 15, 2008 in Harare;
dovetails with the provisions of the Constitution of Zimbabwe Amendment (No. 19) agreed draft.
I take my hat off to all the negotiating parties; for the arduous task which they undertook over a period of almost eighteen months!
More particularly, I would like to acknowledge the sterling and brilliant intellectual effort that was displayed by the two negotiators from my own party;
Honourable Tendai Biti and Honourable Elton Mangoma.
The Constitution of Zimbabwe Amendment (No. 19) draft agreed to by the negotiating parties in South Africa on November 27, 2008 makes very interesting reading.
A close analysis of the draft will show that the powers of the imperial presidency that are presently held by Robert Mugabe are going to be severely curtailed, once the draft amendment is promulgated into law.
The powers of the President, in terms of the agreed draft of the Constitution of Zimbabwe Amendment (No. 19), will be briefly as follows: nstitution of
a) to chair cabinet;
b) to exercise executive authority;
c) to exercise his/her powers subject to the provisions of the Constitution;
d) subject to the Constitution, to declare war and make peace;
e) subject to the Constitution, to proclaim and terminate martial law;
f) to grant pardons, respites, substitute less severe punishment and suspend or remit sentences, on the advice of cabinet;
g) to chair the National Security Council;
h) to appoint service/executive commissions in terms of the Constitution and in consultation with the Prime Minister;
i) in consultation with the Prime Minister, to make key appointments the President is required to make under and in terms of the Constitution or any act of Parliament;
j) may, acting in consultation with the Prime Minister, dissolve Parliament.
The afore-mentioned functions of the President are, inter alia, the main duties and powers of the President after the promulgation of the agreed draft of Constitution of Zimbabwe Amendment (No. 19).
A striking feature of the new-look presidential powers is the fact that the new President will not have virtual carte blanche to do whatever he pleases as is the current position.
The current powers of the President are so overwhelming and all-embracing so much so that they make the President a de facto monarch. Naturally, the overwhelming and unchequered powers of the current President have inevitably led to the mutation of the President into some form of tyrant; who is literally a power unto himself.
The introduction of the office of the Prime Minister, as envisaged by the Constitution of Zimbabwe Amendment (No. 19) agreed draft, has the net effect of diluting and mitigating the hitherto imperial powers of the President. Briefly, the main duties and functions of the Prime Minister are as follows:
a) to chair the Council of Ministers and in this respect, the Prime Minister is the deputy chairperson of cabinet;
b) to exercise executive authority;
c) to oversee the formulation of government policies by the cabinet;
d) to ensure that the policies formulated by cabinet are implemented by the entirety of government;
e) to ensure that the Ministers develop appropriate implementation plans to give effect to the policies decided by cabinet; in this regard, the Ministers will report to the Prime Minister on all issues relating to the implementation of government policies and plans;
f) to chair a Council of Ministers consisting of all the cabinet ministers. The Council of Ministers shall assess the implementation all cabinet ministers decisions, assist the Prime Minister to attend to matter of co-ordination in the government, enable the Prime Minister to receive briefings from the cabinet committees and generally to make progress reports to cabinet on matters related to the periodic review mechanism;
g) the Prime Minister shall be a member of the National Security Council and he shall report to the President and Parliament regularly.
The powers of the Prime Minister, as envisaged by the Constitution of Zimbabwe Amendment (No. 19) agreed draft, are quite substantial. It is my respectful submission that should the agreed draft be promulgated as it is, Zimbabwe will have virtually two centres of power inasfaras the executive arm of the State is concerned.
These centres of power will be vested in the office of the President as well as in the office of the Prime Minister. Whether or not it will be practicable and workable to have two centres of power in the all- inclusive government remains to be seen .Only time will tell.
An analysis of the Constitution of Zimbabwe Amendment (No. 19) agreed draft also shows that a new Section is to be inserted, after Section 114, to the present Constitution of Zimbabwe.
The new Section 115 to the Constitution of Zimbabwe will basically deal with the transitional provisions; arising from the power-sharing agreement signed on 15 September, 2008 by the principals of the three political parties represented in Parliament.
For the avoidance of doubt, Schedule 8 to the Constitution will now clearly define the term “after consultation”. This means that the person required to consult before arriving at a decision makes the consultation but is not bound by the advice or opinion given by the person so consulted.
On the other hand, the term “in consultation” means that the person required to consult before arriving at a decision arrives at the decision after securing the agreement or consent of the person so consulted.
Put simply, Schedule 8 will clearly provide that the executive authority of the inclusive government shall vest in, and be shared among the President, the Prime Minister and the cabinet.
Gone will be the days where the President will wield overwhelming and overriding powers on his own; literally without any serious checks and balances. It is a truism that power corrupts and absolute power corrupts absolutely!
Another very significant aspect of the Constitution of Zimbabwe Amendment (No. 19) agreed draft is the new look section 57 of the Constitution. This will create a committee to be known as the Committee on Standing Rules and Orders consisting of:
a) the Speaker
b) the President of the Senate;
c) the Deputy Speaker;
d) the Deputy President of the Senate;
e) members appointed by the Speaker and the President of the Senate from their respective houses of Parliament which shall include the leader of government business, the leader of the opposition and the chief whips; and
f) members elected by each House of Parliament.
The Speaker is the chairperson of the Committee on Standing Rules and Orders and the President of the Senate is to be its deputy chairperson.
The Committee on Standing Rules and Orders is a very powerful organ. For instance, the chairperson of the Zimbabwe Electoral Commission (ZEC) shall be appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders.
The Zimbabwe Anti-Corruption Commission, consisting of at least four and not more than nine members, shall be appointed by the President in consultation with the Committee on Standing Rules and Orders.
The Committee on Standing Rules and Orders shall play a very far-reaching and significant role in the appointment of all major service and constitutional commissions.
This effectively curtails the hitherto all- embracing powers of the President when it comes to the appointment of organs such as the Public Service Commission, the Judicial Service Commission, the Police Service Commission and the Zimbabwe Anti-Corruption Commission.
Indeed, the Committee on Standing Rules and Orders, as envisaged by the Constitution of Zimbabwe Amendment (No. 19) agreed draft, will also play a very significant role in the appointment of senior diplomats and senior civil servants.
In a previous article that I recently wrote, I submitted that power- sharing is never an easy thing to do. More particularly, it will be very difficult to have two centres of executive power in the same country. I have no apology in submitting that a power-sharing government is never the most ideal set-up to run an effective government.
Be that as it may, it appears that at this juncture in the political history of Zimbabwe, a power-sharing government is perhaps the best option to pursue. However, this arrangement should be short-lived because in essence, it is a negation of the will of the people of Zimbabwe as expressed in the March 29, 2008 harmonised elections.
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Morgan Tsvangirai, as the clear winner of the credible Presidential election race that was conducted on March 29, 2008, in all fairness, should be given an opportunity to run Zimbabwe unhindered by the shackles and serious shortcomings and ambiguities contained in the power-sharing agreement solemnised on September 15, 2008 in Harare.
It is without doubt that Zimbabwe needs a new people-driven and people-centred Constitution. The power-sharing set up should indeed be a temporary arrangement that should not last for too long a time.
Electoral losers should not be granted political power through the back door. Going forward, a new look Zimbabwe Electoral Commission (ZEC) should consist of men and women of absolute integrity who should be able to administer fair, credible and impartial elections.
Surely, an electoral commission that takes five weeks to announce the results of an election is an insult to the intelligence of all right-thinking people! The entire Zimbabwe Electoral Commission (ZEC) ought to have resigned as a result of this shocking and unprecedented manifestation of bias, ineptitude and gross incompetence.
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