In
the
first
part
of
our
analysis
of
the
Constitution
of
Zimbabwe
Amendment
(No
3)
Bill [link] we
looked
at
the
amendments
the
Bill
proposes
to
make
to
the
way
in
which
the
President
is
elected,
the
extension
of
the
presidential
term
and
the
life
of
Parliament,
and
the
appointment
of
Senators. In
this,
the
second
part,
we
shall
examine
the
remaining
provisions
of
the
Bill.
Elections
The
Bill
proposes
to
strip
the
ZEC
of
some
of
its
functions
namely: registering
voters,
maintaining
voters
rolls
and
delimiting
electoral
boundaries.
Voter
registration
and
maintenance
of
voters
rolls
Clause
2 of
the
Bill
will
confer
on
the
Registrar-General
the
functions
of
registering
voters
and
compiling
and
maintaining
voters
rolls.
Comments: This
makes
some
administrative
sense. The
Registrar-General
keeps
registers
of
births
and
deaths,
and
is
in
a
better
position
than
ZEC
to
register
citizens
as
voters.
On
the
other
hand,
voters
rolls
were
not
properly
maintained
between
1980
and
2013,
when
the
Registrar-General
was
responsible
for
them,
and
there
is
a
fear
that
they
will
not
be
maintained
any
better
now. The
Registrar-General
is
a
civil
servant
and
subject
to
political
control
and
manipulation
by
the
President
through
his
Ministers,
while
ZEC
is
at
least
notionally
independent.
Delimitation
of
Electoral
Boundaries
A
new
Commission
–
the
Zimbabwe
Electoral
Delimitation
Commission
–
will
be
established
to
fix
and
alter
the
boundaries
of
constituencies
and
wards
in
accordance
with
Chapter
7
of
the
Constitution
(clauses
11
to
13
of
the
Bill). It
will
be
appointed
whenever
delimitations
have
to
be
done
–
which
means
every
10
years
in
terms
of
section
161
of
the
Constitution. All
the
members
of
the
Commission
will
be
appointed
by
the
President,
the
chairperson
after
consultation
with
the
Judicial
Service
Commission.
Comments: How
well
the
new
commission
will
function
remains
to
be
seen,
but
it
can
hardly
make
a
worse
job
of
delimiting
electoral
boundaries
than
the
ZEC,
whose
2023
delimitation
was
full
of
inaccuracies
and
violated
the
Constitution
and
the
Electoral
Act.
It
should
be
noted
however
that
all
the
members
of
the
new
commission
will
hold
office
at
the
President’s
pleasure,
which
means
they
can
be
dismissed
and
replaced
whenever
the
President
pleases
(see
section
320(2)
of
the
Constitution). Hence
the
commission
will
not
be
independent. ZEC,
as
we
have
said,
is
at
least
notionally
independent.
Jurisdiction
of
the
Constitutional
Court
At
present
the
Constitutional
Court
decides
only
constitutional
matters,
i.e.
cases
involving
the
interpretation
and
enforcement
of
the
Constitution. Its
decisions
on
those
matters
bind
all
other
courts. Clause
14 of
the
Bill
proposes
to
extend
the
court’s
jurisdiction
to
cover:
“any
other
matter,
if
the
Constitutional
Court
grants
leave
to
appeal,
on
the
grounds
that
the
matter
raises
an
arguable
point
of
law
of
general
public
importance
which
ought
to
be
considered
by
the
Court.”
Comment: This
proposal
is
badly
conceived
and
ineptly
drafted. It
will
give
the
Court
power,
in
effect,
to
determine
its
own
jurisdiction
–
a
dangerous
thing
to
do,
because
judges
are
not
always
above
power-grabbing. The
Supreme
Court
is
declared
by
section
169
of
the
Constitution
to
be
the
final
court
of
appeal
for
Zimbabwe,
but
if
the
Constitutional
Court
encroaches
on
its
jurisdiction,
the
Supreme
Court’s
status
will
be
placed
in
doubt. Furthermore,
section
167(1)
of
the
Constitution
states
that
the
Constitutional
Court’s
decisions
in
constitutional
matters
bind
all
other
courts,
including
the
Supreme
Court. But
what
of
the
Constitutional
Court’s
decisions
in
these
new
“other
matters”
referred
to
in
the
amendment? Will
they
bind
other
courts? The
amendment
does
not
say.
Appointment
of
Judges
Clause
15
of
the
Bill
will
amend
the
constitutional
requirements
for
appointing
judges
so
that
all
judges,
from
the
Chief
Justice
downwards,
will
be
appointed
by
the
President
after
consultation
with
the
Judicial
Service
Commission. There
will
be
no
calling
on
the
public
for
nominations,
no
public
interviews
of
candidates
and
no
selection
of
candidates
by
the
Judicial
Service
Commission. There
will
be
no
transparency
whatever
about
the
processes
by
which
the
President
selects
his
judges.
It
will
be
difficult
to
assess
whether
those
appointed
have
the
requisite
experience
and
qualifications
–
and
an
inexperienced person
without
judicial
experience
could
be
appointed
as
Chief
Justice
Comment: The
Constitution
gives
the
superior
courts
power
to
monitor
constitutional
compliance
by
everyone,
from
the
President
down
to
the
lowest
official,
and
to
ensure
that
everyone
abides
by
the
principles
laid
down
in
the
Constitution
including
respect
for
the
law
and
fundamental
human
rights
and
freedoms. So
important
is
the
courts’
role
that
section
164
of
the
Constitution
states:
“The
independence,
impartiality
and
effectiveness
of
the
courts
are
central
to
the
rule
of
law
and
democratic
governance
…”
If
judges
are
to
be
appointed
at
the
whim
of
the
President,
how
can
the
public
respect
their
independence,
impartiality
and
effectiveness?
Appointment
of
Prosecutor-General
Under
section
259(3)
of
the
Constitution,
the
Prosecutor-General
is
appointed
by
the
President
on
the
advice
of
the
Judicial
Service
Commission. Clause
20
of
the
Bill
will
allow
the
President
to
appoint
the
Prosecutor-General
entirely
at
his
own
discretion,
without
seeking
anyone’s
advice.
Comment: Like
the
proposed
changes
to
the
appointment
of
judges,
this
is
an
undesirable
amendment. The
Prosecutor-General
is
in
charge
of
prosecutions
on
behalf
of
the
State,
which
means
he
or
she
decides
who
should
be
prosecuted
for
crimes
and
who
should
not. It
is
important
that
these
decisions
are
made
impartially
and
without
interference
from
the
Executive
–
indeed
section
260
of
the
Constitution
says
that
the
Prosecutor-General
must
be
impartial
and
not
subject
to
anyone’s
direction
or
control. A
Prosecutor-General
appointed
at
the
sole
discretion
of
the
President
is
unlikely
to
have
the
requisite
independence
and
impartiality.
Abolition
of
Zimbabwe
Gender
Commission
Clauses
18
and
19 of
the
Bill
will
abolish
the
Zimbabwe
Gender
Commission
and
transfer
its
functions
to
the
Zimbabwe
Human
Rights Commission.
Comment: The
functions
of
the
two
commissions
overlap
because
gender
rights
are
part
of
human
rights,
though
admittedly
a
very
important
part. Hence
there
is
some
sense
in
folding
the
Gender
Commission
into
the
Human
Rights
Commission.
On
the
other
hand,
gender
rights
are
particularly
sensitive
so
a
special
commission
to
handle
them
is
justified. There
has
been
no
suggestion
that
the
Zimbabwe
Gender
Commission
has
failed
to
carry
out
its
functions
properly,
or
that
the
Zimbabwe
Human
Rights
Commission
is
in
a
better
position
to
carry
them
out. So
why
abolish
the
Commission?
Women’s
forums
have
expressed
their
opposition
to
this
change.
Gender-based
violence
is
endemic
in
Zimbabwe,
and
a
commission
that
specialises
in
gender
issues
may
be
in
a
better
position
to
deal
with
it
than
a
more
generalised
human
rights
commission.
Note,
incidentally,
that
abolition
of
the
Commission
will
mean
the
Zimbabwe
Gender
Commission
Act
of
2015
will
have
to
be
repealed
and
some
provision
made
for
the
terminal
benefits
of
its
commissioners
and
staff
and
the
continuation
of
its
functions
by
the
Human
Rights Commission.
Traditional
Leaders
According
to
section
281(2)
of
the
Constitution,
traditional
leaders
must
not
be
members
of
any
political
party
and
must
be
completely
non-partisan. Clause
21
of
the
Bill
will
abolish
this
requirement.
Comments: The
Bill’s
memorandum
explains
this
amendment
by
saying
that
requiring
traditional
leaders
to
be
non-partisan
violates
their
political
rights. It
doesn’t – any
more
than
requiring
judges
and
members
of
the
Defence
Forces
to
be
non-partisan
violates
their
rights. Being
party-political
would
also
interfere
with
many
of
their
traditional
functions
such
as
presiding
over
their
courts
and
allocating
land, which
require
them
to
be
impartial.
Other
Amendments
to
Constitution
In
addition
to
those
we
have
outlined
above
and
in
our
earlier
bulletin,
the
Bill
will
make
several
other
amendments
to
the
Constitution:
Qualifications
of Attorney-General
At
present,
lawyers
are
qualified
to
be
appointed
Attorney-General
if
they
are
qualified
to
be
appointed
as
judges
of
the
High
Court. Clause
7
of
the
Bill
will
require
them
to
have
the
qualifications
of
Supreme
Court
judges. All
this
really
means
is
that,
to
be
qualified
for
appointment,
lawyers
will
have
to
have
been
in practice for
ten
years
rather
than
seven
years.
Role
of
Defence
Forces
Section
212
of
the
Constitution
declares
that
the
Defence
Forces
have
the
function
of
protecting
Zimbabwe
and
its
people,
and
upholding
the
Constitution. Clause
16
of
the
Bill will
remove
the
separate
function
of
upholding
the
Constitution
and
instead
will
state
that
protecting
Zimbabwe
and
its
people
must
be
done
in
accordance
with
the Constitution.
Comment: The
amendment
does
not
significantly
alter
the
role
of
the
Defence Forces.
Abolition
of
National
Peace
and
Reconciliation
Commission
Clause
22
of
the
Bill
will
abolish
the
National
Peace
and
Reconciliation
Commission.
Comment: The
Commission
was
established
for
a
ten-year
period
which
ended
in
2023,
so
its
abolition
as
a
constitutional
commission
is
a
formality,
legally
at
least.
The
National
Peace
and
Reconciliation
Commission
Act
of
2017
does
not
extend
the
Commission’
life,
which
means
that
in
law
it
ceased
to
exist
in
2023.
In
fact
the
Commission
has
continued
to
receive
government
funding
(this
needs
to
be
accounted
for)
so
it
has
remained
notionally
in
existence,
though
unable
to
do
anything.
General
Comments
According
to
the
Bill’s
memorandum,
the
proposed
amendments
are
unobjectionable,
designed
to
“reinforce
constitutional
governance,
strengthen
democratic
structures,
clarify
institutional
mandates
and
harmonise
Zimbabwe’s
constitutional
order
with
tested
and
successful
practices
in
other
progressive
jurisdictions.”
Nothing
could
be
further
from
the
truth,
as
we
have
tried
to
demonstrate
in
this
and
the
earlier
bulletin: the
amendments
will
weaken
constitutional
governance
by
violating
the
principle
of
separation
of
powers
and
reducing
the
judiciary
and
chief
prosecutor
to
presidential
hirelings; and
they
will
nullify
the
institutional
mandate
of
the
Constitutional
Court
by
allowing
it
to
determine
its
own
jurisdiction. As
for
harmonising
our
constitutional
order
with
other
progressive
jurisdictions,
the
amendments
will
bring
our
presidential
system
into
line
with
countries
such
as
the
Central
African
Republic, Gabon
and
Equatorial
Guinea,
none
of
which
can
lay
claim
to
stability
and
good
governance.
The
Bill
has
nothing
to
recommend
it. When
it
comes
before
Parliament
it
should
be
rejected
in
its
entirety.
Even
if
it
is
passed
by
Parliament
it
will
be
open
to
challenge
on
the
ground
that
it
violates
the
fundamental
values
of
the
Constitution.
Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
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