A Guide to the Constitutional Draft

by Hon Douglas Mwonzora (MP)
Introduction
The draft constitution is a product of two key processes. The first process was the outreach programme where views of Zimbabweans were enlisted. The second process was a negotiation that was either as a result of the inconclusiveness of the data or because of underlying political considerations. The negotiating process which was led by the negotiators of the Global Political Agreement inevitably involved a give-and-take process.

Chapter 1 : Founding Provisions
This chapter deals with four critical issues. 
The first is that it puts this constitution above every person, organ, agency or institution of the State.
Secondly, it provides the basic principles upon which Zimbabwe is founded as a nation. These principles include respect for the supremacy of the constitution, rule of law, fundamental human rights and freedoms, gender equality, good governance, free and fair elections, orderly transfer of power following elections.
Thirdly, it provides that all security forces must be taught the basic values of this constitution as part of their training. 
Lastly, all indigenous languages of Zimbabwe are recognised as official while an Act of Parliament will prescribe languages of record from time to time.

Chapter 2: National Objectives
This chapter sets down those things that Zimbabwe as a nation aspires to achieve. These include good governance, national unity, peace and stability, good foreign policies, gender balance, food security, fair regional representation, rights of elderly persons, children, youths, women, war veterans and the workers. It enjoins the State of Zimbabwe to provide education, shelter, health care services, legal aid and social welfare for its citizens.

Chapter 3: Citizenship
Zimbabwean citizens are divided into three categories. These are citizens by birth, citizens by descent and citizens by registration. All citizens are equally entitled to the rights and obligation of citizenship. Some of these rights include entitlement to state protection and identity documents like birth certificates, national registration documents and passports. The obligations include duties of loyalty to Zimbabwe, observance of the constitution and to defend Zimbabwe.

Under this constitution, dual or multiple citizenship is automatically allowed for Zimbabwean citizens by birth. Regarding citizens by descent or by registration, Parliament has the power to make a law either to prohibit or to permit dual citizenship.

Chapter 4: Declaration of Rights
This chapter provides a very comprehensive bill of rights. It provides both first generation rights and socio-economic rights. Under this chapter, death penalty is only retainable in respect of murder in aggravating circumstances. However, the death penalty cannot be passed in respect of people under the age of 21 or over the age of 70 or any woman. The bill of rights also provides such rights as freedom to demonstrate and petition and labour rights. Labour rights include the right to collective job action which encompasses the right to strike.

Under freedom of the media, State broadcasters are required to be impartial and to give fair opportunity to divergent views. Further, the constitution prohibits incitement to violence, advocacy of hatred and hate speech. All Zimbabwean citizens and residents are entitled to access to information.

Unlike the current constitution, the draft constitution provides for political rights. These include the right to form, join or participate in the activities of political parties and organisations. They also include the rights to peaceful, free and fair elections. 

Under this constitution the rights of accused and detained persons are spelt out including the right to a fair hearing. The socio-economic rights enshrined in the constitution include the right to education, health care, food and water and the right to a safe environment. The constitution further provides elaborate rights including rights of children, women, the elderly, people living with disabilities as well as war veterans. Under this constitution, certain rights can be limited under a state of emergency. However, the following rights cannot be derogated under any circumstances;

• a.The right to life
• b.Human dignity
• c.Right not to be subjected to torture, cruel, inhuman and degrading treatment
• d.Right not to be subjected to slavery or servitude
• e.The right to a fair hearing

Chapter 5: Executive Authority
Under the draft constitution, executive authority is vested in the President and Cabinet. Among the duties of the President is the duty to uphold the constitution and to ensure that all laws are faithfully obeyed. The President has a maximum term of two 5-year terms of office. 

The draft constitution enjoins every presidential candidate to provide the names of two running mates during the elections. These running mates are designated as the 1st and 2nd Vice President. In the event of a President dying or leaving office then the 1st Vice President automatically takes over. Although, a President cannot be tried while in office, once he leaves office he can be tried for the offences he committed before or during the time that he was president.

The President has the duty to appoint ministers from Parliament but may appoint up to 7 ministers from outside Parliament based on professional skills and competency.

Under this constitution the President has power to declare war or make peace but exercise this power subject to Parliamentary approval. Although, the President has power to grant mercy he can only exercise this power after consultation with Cabinet. The President is allowed to appoint an Attorney General who is his legal advisor. However, this Attorney General does not have prosecuting power.

Chapter 6: Legislature Authority
The Parliament is made up of the Senate and the National Assembly. The election into the Senate is by proportional representation using a party list and the zebra system alternating men and women with a woman on top of each list. There will be 88 senators, 18 of whom will be chiefs, 8 will be Provincial Governors, 2 will be representatives of people living with disabilities, while 60 will be elected by proportional representation. Of this 60, each province will produce 6 senators based on proportional representation based on the votes of the National Assembly for the parties in that province. In the National Assembly the 210 seats will remain while there is an addition of 60 women MPs elected by proportional representation. Of these, each province will produce 6. The Clerk of Parliament has a limited term of office of 6 years, renewable once.

Chapter 7: Elections
The chapter provides that elections or referendums must be peaceful, free and fair. In particular, the elections shall be free from violence and other electoral malpractices. All contesting parties are entitled to all material and information necessary for them to participate effectively. Further, they are entitled to equal access to print and electronic media. All matters dealing with elections ranging from voter registration, education up to the actual announcement of the results will be done by the Zimbabwe Electoral Commission. All elections are going to be harmonised and will be held in the last month of a Presidential term.

Chapter 8: The Judiciary and the Courts
Under this chapter, the courts of Zimbabwe are listed and include the Constitutional Court which is the highest court of the land. The other courts like the Labour Court and the Administrative Court are given the same status as the High Court. Provisions are made which guarantee the independence of the judiciary. In particular, “Bangalou Principles” regarding the independence of the judiciary are enshrined in this constitution. The appointment of judges is going to follow a procedure where the Judicial Service Commission advertises the posts and calls for applications and nomination of judges. The candidates, including those nominated by the President will be subjected to public interviews before appointment.

Chapters 9 & 10: Principles of Public Administration and the Civil Service
The draft constitution will deal with parastatals. These parastatals and state-owned enterprises will abide by the principles of good corporate governance. The heads of the parastatals will have a limited term of office. Ambassadors are going to be appointed by the President while permanent secretaries are appointed by the President after consultation with the Civil Service Commission. The permanent Secretaries have a limited term office of 5 years, renewable once.

Chapter 11: Security Services
Under this chapter, the security services are listed as the Defence Forces, Police Service, Intelligence Services, and Correctional Services. Additional security services may only be established under an Act of Parliament. Security Services are under the authority of the constitution, the Parliament, the President and Cabinet.

Members of the security services must not act in a partisan manner. They cannot further the interests of political parties nor prejudice the lawful interests of political parties. They are not allowed to violate fundamental human rights and freedoms of the Zimbabwean citizens.

The constitution sets up a National Security Council and obliges commanders of the security services to provide it with reports on the security situation in Zimbabwe from time to time. All commanders of the Security Services are appointed by the President after consultation with the appropriate minister.

All commanders of Security Services have a limited term of 5 years, renewable once. The constitution sets independent complaint mechanisms for members of the public on the conduct of members of the Security Services.

Chapter 12: Independent Commissions Supporting Democracy

The independent commissions are:

• 1. The Zimbabwe Electoral Commission
• 2. Zimbabwe Human Rights Commission
• 3. Zimbabwe Gender Commission
• 4. Zimbabwe Media Commission
• 5. National Peace and Reconciliation Commission

In the appointment of these commissions, both the President and Parliament are involved. The commissions appoint their own members of staff who are enjoined not to be partisan or to prejudice or promote the interests of any political party.
The National Peace and Reconciliation Commission has a duty to ensure post-conflict justice, healing and reconciliation. It does not have a cut-off date.

Chapter 13:Institutions to Combat Corruption and Crime
There are two institutions here, the Zimbabwe Anti Corruption Commission and the National Prosecuting Authority. The Prosecutor General who heads the National Prosecuting Authority is appointed in the same way as a Supreme Court Judge is appointed.

Chapter 14: Provincial and Local Government
This chapter provides for devolution of power to the ten provinces. It provides the objects and principles of devolution. Each Province is run by a Provincial Council made up of all senators, National Assembly members as well as mayors and chairpersons of local authorities in that province.

A further 10 people are elected by a system of proportional representation. The jurisdiction of provincial councils is in the sphere of social and economic development of the province. The provincial council is headed by a Provincial Governor appointed by the President from a list of two names submitted by a party with the majority of seats in that province concerned.

Under the section dealing with local authorities, the removal of councillors and mayors can now only be done in terms of the constitution. The minister responsible for local government has no power to remove councillors and mayors anymore.

Chapter 15: Traditional Leaders
Traditional leaders are not allowed to be members of political parties or to participate in partisan politics. They are neither allowed to further interests of political parties nor to violate fundamental human rights. Their jurisdiction is limited only to their communal areas or persons within their communal areas. The appointment of chiefs is done by the President after consultation with the Zimbabwe Council of Chiefs. However, the President of the Council of Chiefs will have a limited term of office of 5 years, renewable once for a further 5 years.

Chapter 16: Agricultural Land
The chapter deals with land that is subject to Land Reform. It sets fundamental principles including the principle that land redistribution must be fair and equitable, having regard to gender balance and community interests. Every citizen is given a right to acquire hold, occupy, transfer, hypothecate, lease or dispose of agricultural land regardless of his or her colour. This chapter guarantees security of tenure to persons lawfully occupying land. Owners or occupiers of agricultural land are allowed to transfer, hypothecate, lease or dispose of their rights. The draft constitution also allows full compensation for indigenous Zimbabweans or those people holding land under BIPPA agreements. For any other categories, the compensation is for improvements only. 

The chapter establishes a Land Commission which is appointed by the President and Parliament. The Commission has the responsibility to ensure that there will be periodic land audits and help enforce the principle of one person, one farm as well as the appropriate compensation to be paid in respect of agricultural land.

Chapter 17: Financial Management
This chapter provides for Parliamentary oversight and monitoring of expenditure by government or its agencies and institutions. Certain levels of borrowing would require the approval of Parliament. Not less than 5% of the national revenue raised will be allocated to the Provincial Councils.

Chapter 18: General and Supplementary Provisions

The chapter sets out the way commissions must be governed. It also deals with amendment of the constitution. Generally, for all provisions of the constitution to be amended, the proposed amendment must be supported by two thirds of parliament. However, amendment to any provision of the bill of rights as well as chapter 16 which deals with agricultural land must be done via a referendum. The office of public protector is abolished as it is felt that it had no purpose.