CONSTITUTION WATCH 27/2013

CONSTITUTION WATCH 27/2013

[13th May 2013]

The New Constitution Bill has been passed by the House of Assembly and Sent to the Senate

The Constitution of Zimbabwe Amendment (No. 20) Bill was gazetted on 29th March.  The Bill consists of three short clauses and the new draft constitution in the form of a lengthy Schedule to the Bill.  [See Constitution Watch 25/2013 of 4th April for the text of the three clauses.]   The new draft constitution in the Schedule to the Bill differs in a few minor respects from the draft that was put to the Referendum. [See Constitution Watch 25/2013 of 4th April for a list of the differences and for COPAC’s explanation.]  When the House of Assembly and the Senate returned on Tuesday 7th May from their ten-week recess, more than the mandatory 30-day period between the gazetting of a constitutional Bill and its presentation to Parliament [stipulated in the current Constitution] had passed. 

Final Preparations at Monday 6th May COPAC Management Committee Meeting

The COPAC Management Committee met on Monday 6th May and discussed issues about the passage of the Constitution of Zimbabwe Amendment (No. 20) Bill through Parliament.  All GPA parties were represented, with Minister Chinamasa one of those present representing ZANU-PF.  Consensus was reached on the following points:

·      certain minor amendments to the Bill were needed and would be made during the Bill’s Committee Stage in the House of Assembly, when the Minister of Constitutional and Parliamentary Affairs would move the amendments and all three GPA parties would support them

·      the Bill would be introduced by the Minister and have its First Reading on Tuesday 7th May

·      the Minister would deliver his Second Reading speech the following day, Wednesday 8th May, and debate would follow immediately afterwards.

ZANU-PF representatives nevertheless complained throughout the week that MDC-T was deliberately and unnecessarily slowing down the Bill’s progress in order to prevent the holding of the harmonised elections before the present Parliament automatically comes to an end at midnight on 28th June.

The Bill’s Passage Through the House of Assembly

The Minister of Constitutional and Parliamentary Affairs, whose responsibility it is to steer the Bill through Parliament, announced it would be introduced first into the House of Assembly and then, when passed in the lower house, taken to the Senate.  [Note:  For the passage of a constitutional Bill section 52(3) of the current Constitution requires a two-thirds majority in favour of the Bill in each House.]

Tuesday 7th May – Introduction and First Reading         

Motion to fast-track Bill

On Tuesday proceedings opened with the House passing the following motion to suspend certain Standing Orders to allow the Constitution Bill to be “fast-tracked”:

“That the provisions of Standing Orders Nos. 22, 33 (2), 34 (5) and 205 (5) regarding the automatic adjournment of the House at five minutes to seven o’clock pm and at a twenty five minutes past one o’clock on a Friday, Private Members motions taking precedence on Wednesdays after question time and that question time shall be on Wednesdays and stages of bills, respectively, be suspended in respect of the Constitution of Zimbabwe Amendment (No. 20) Bill.”

The motion was proposed by the Minister of Finance, Tendai Biti, on behalf of the Minister of Constitutional and Parliamentary Affairs, Eric Matinenga, who was not yet in the chamber.  It was approved without discussion.

First Reading

Having arrived in the chamber, Mr Matinenga then presented the Bill and it was read for the first time.  [Note:  A Bill’s First Reading is a formality. The Clerk reads out the Bill’s title; no debate is allowed.  Ordinary Bills next go to the Parliamentary Legal Committee to be scrutinised for consistency with the Constitution – but this does not apply to a Constitutional Bill.  So, a Constitutional Bill that has had its First Reading is ready for the Second Reading stage on a date nominated by the Minister presenting it.] 

Protest over timing of Minister’s Second Reading speech

When Mr Matinenga then said he would be ready to deliver his Second Reading speech on Wednesday, ZANU-PF MPs protested vigorously, pointing to the urgency of the Bill and the fact that the House had just passed a motion allowing for late debates, etc., and the suspension of those same standing orders could allow all stages of a Bill to be dealt with on the same day.  The Minister stuck to his guns, reminding the House of the consensus reached at the Management Committee meeting on Monday, at which ZANU-PF had been well represented.  Proceedings on the Bill were then adjourned until Wednesday.

Wednesday 8th May – Second Reading Stage

Minister’s speech and other contributions

Minister Matinenga opened proceedings with his speech outlining the principles and objectives of the new Constitution, and highlighting improvements over the current constitutional provisions: expansion of Bill of Rights, introduction of social, economic and environmental rights, expansion of citizenship rights.  At the end of his speech, ZANU-PF MPs claimed there was no need for further debate but MDC-T MPs insisted on speaking; Finance Minister Tendai Biti addressed the House for 35 minutes, describing it as miraculous that the often“arduous and acrimonious” negotiating process, behind-the-scenes aspects of which he described, had culminated in agreement.  He said the new Constitution would usher in a new social order in Zimbabwe.  Several other MDC-T MPs expressed similar sentiments.  There were two brief contributions from ZANU-PF; Defence Minister Emerson Mnangagwa emphasised his party’s satisfaction with the new Constitution’s confirmation of the land reform programme.  From the MDC there were also two speakers, with Minister of Regional Integration and International Cooperation Priscilla Misihairabwi-Mushonga applauding the introduction of term-limits for Presidents and other office-holders.  All spoke in support of the new Constitution. 

After these contributions Minister Matinenga wound up the debate with the unanimous support of members, completing the Second Reading stage of the Bill.  The House rose at 6.20 pm, with the next stage, the Committee Stage, set for Thursday.

Thursday 10th May – Committee Stage

Committee Stage Amendments

This stage is when the House goes into “committee of the whole House”.  The Speaker leaves the chair and either the Deputy Speaker or the Chairperson of Committees presides over the proceedings.  The presiding officer takes MPs through the Bill clause by clause, and they have the opportunity to raise questions of detail, and approve amendments. 

The Minister had already given notice on Wednesday that he would propose amendments to nine provisions of the Bill which had been agreed upon as being necessary at Monday’s COPAC Management Committee meeting.  All of them are editorial changes, correcting minor inconsistencies or mistakes in cross-references.  They were set out in advance in the Order Paper for Thursday as follows:  [Note that the page numbers are those of the printed version of the Bill, which is what MPs have in front of them in the chamber – and that there were some minor errors in these amendments – see Veritas comments below.]

NOTICE OF AMENDMENTS

BY: THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS

Clause 43

Pages 25-26 of the Bill, section 43.  Substitute “effective date” with “publication day” wherever it appears in the section.

Clause 110

Page 49 of the Bill, section 110(6).  Delete paragraphs (a), (b), (c) and (d), lines 5-13.

Clause 124

Page 54 of the Bill, section 124(1)(b).  Delete the words “through a system of” and substitute “under a party- system of”, line 24.

Clause 268

Page 105 of Bill, section 268(2), line 39.  Delete “subsection (1)(f)” and substitute “subsection (1)(g)”.

Clause 271

Page 107 of the Bill, section 271.  Delete “section 268(1)(f)” and substitute “section 268(1)(g)”, line 17.

Clause 272

Page 107 of Bill, section 272, line 19.  Delete “Chairpersons of Provincial and Metropolitan Councils” and substitute “Chairpersons of Provincial Councils”.

Page 108 of the Bill, lines 10-11.  Delete subsection (9).

Sixth Schedule

Page 147 of the Bill, section 3(1)(d), lines 8-9.  Delete paragraph (d) and substitute the following­-

“(d)  Chapter 6 relating to the election of Members of Parliament, the summoning of Parliament after a general election and to the assent to Acts of Parliament by the President.”.

Page 147 of the Bill, section 3(3), line 23.  Delete “subparagraphs (a) to (I)” and substitute “subparagraphs (a) to (i)”.

Page 151 of the Bill, section 18(7), lines 19-20.  Delete “effective date” and substitute “publication date”. 

Comment: 

The were a few errors in the amendments as printed in the Order Paper: 

·      The amendment to section 124 used the term “party-system” of proportional representation when it should have said “party-list system”.  Fortunately this was noticed in time and the correct term was read out and adopted when the amendment came up during the Committee Stage on Thursday. 

·      The amendments to clauses 268 and 271 should have substituted “subsection (1)(h)” rather than “subsection (1)(g)”.  This very minor error can be put right by the Clerk of Parliament in terms of Standing Order 117(1) which allows “corrections of a verbal or formal nature (i.e. spelling or obvious grammatical mistakes, typographical errors or the renumbering of clauses or paragraphs and minor amendments in consequence)” to be made by the Clerk under direction of the Speaker.

·      The amendment to the Sixth Schedule, section 18(7), should have substituted “effective date” with “publication day” instead of “publication date”, which is the term used and defined in the new Constitution.  This, too, can be can be put right by the Clerk of Parliament in terms of Standing Order 117(1).

The following points need to be noted:  

·      The amendment to section 43 of the new constitution deals with continuation of citizenship for existing citizens and restoration of citizenship to those born in Zimbabwe to a parent or parents with citizenship of another SADC country but resident in Zimbabwe.  It makes it clear that this section, like the rest of the Chapter on Citizenship, comes into operation on “publication day” – thereby removing an inconsistency.  The whole Chapter will, including section 43, will therefore apply from publication day to issue of IDs and registration of voters for the next elections.

·      The amendment, to section 110(6) on the President’s executive functions, deleting paragraphs (a) to (d) removes an obvious inconsistency with other provisions in the constitution about when the President exercises his powers as President personally, e.g. assenting to and signing Bills, and when his executive powers must be exercised on Cabinet advice.

·      The reasons for the three amendments to the Sixth Schedule are not obvious [the Minister was not asked for an explanation when the amendments came up during the Committee Stage]:

1.  Amendment to paragraph 31)(d)  The effect is that the President’s power to assent to Bills is to be governed by the new constitution after the publication day.  This seems pointless, as there would be no time before this Parliament ends to follow the slightly different but long drawn-out procedure if the President does not assent to a Bill.  [Unless the government is making provision for extending the life of this Parliament.]

2.  Correction of paragraph 3(3) seems unnecessary, as the present Constitution has no provisions on provincial and local government that clash with the new Constitution.

3.  Amendment of paragraph 18(7) – Why do the existing courts have to be specially continued in existence from the publication day rather than the effective date?  There is nothing to suggest they would not continue in existence until the effective date anyway.

It is hoped that there can be a consensus that all errors – including any that may come to light during the Bill’s passage through the Senate – can properly be corrected by the Clerk in terms of Standing Order 117(1) – or, as the House has now finished with the Bill, the equivalent Senate Standing Order.  It would cause further delay if it was decided to follow the route laid down by Standing Order 117(2) instead: ”(2) Other corrections shall be made by way of motion and dealt with as any other amendment.” [“Other corrections” are corrections that cannot be made by the Clerk in terms of Standing Order 117(1)].  Any amendments made by the Senate during the Committee Stage would mean the Bill having to go back to the House for consideration of the Senate’s amendments.  And adoption of the amendments by the House would require another two-thirds majority vote.

Third Reading Vote and Transmission to Senate

Third Reading

156 MPs voted in favour, well over the two-thirds majority required.  There were no dissenting votes.  The Speaker then made the following declaration:  “I, therefore, declare the final vote in the House of Assembly on theConstitution of Zimbabwe Amendment (No. 20) Bill [H.B. 2A, 2013] to have been in accordance with the provisions of subsection (3) of section 52 of the Constitution.” 

Transmission to Senate 

The Bill, as approved by the House [i.e. with the Minister’s amendments], was then transmitted to the Senate for its consideration, and at 4.55 pm the House adjourned.  As the Senate had already adjourned until Tuesday 14th May, the Minister will have to wait until then to guide the Bill through the Senate.

Bill for the Senate on Tuesday 14th May

The Bill will come up in the Senate on Tuesday 14th May.  It is likely that it will be fast-tracked through all stages in the course of the afternoon – introduction/First Reading, Second Reading [Minister’s speech followed by contributions from Senators wishing to speak], Committee Stage, Third Reading.  To allow this, a resolution to suspend the relevant Standing Orders is expected before proceedings on the Bill commence. 

 

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