Unpacking Constitutional Amendment No. 2

By Dr Masimba Mavaza

Many in the opposition are sending out cooked information that Constitutional amendment shows disrespect of the people’s will. What they seem to forget is the fact that the amendment was equally Democratic and inclusive.
The Amendment was not done by a party but by the nation. The Members of parliament who voted for it voted in their representative capacity. Zimbabwe operates representative politics and indeed the members of parliament acted on behalf of their constituencies.

It is very clear that we have people who are trying to politicise the whole process.
Douglas Mwonzora has been accused for voting for the amendment. These accusations clearly shows that we have people who are divisionists who practice divisionism. Mwonzora is a senetor and he does not vote in the House of Parliament. He is not a parliamentarian. Those who accuse him of being ZANU PF are lost and just after soiling his name.
The esoteric issue to those with legal minds is the issue of whether constitutional amendment is constitutional.
Is it possible for a constitutional amendment to be unconstitutional? The constitutionality of constitutional amendments is not a matter of politics. A case decided by Zimbabwe’s Constitutional Court on 31 March 2020 dealt with this question, with both significant and controversial outcomes.
In 2017, two MDC MPs, Innocent Gonese and Jessie Majome launched legal proceedings against Parliament challenging the validity of Constitutional Amendment Act (No. 1) 2017. They argued that the special parliamentary procedure used to pass the Constitutional Bill was flawed and that Parliament had failed in its duty to uphold the Constitution. The application was brought in terms of section 167(2)(d) of the Constitution which gives power to the Constitutional Court to decide on the constitutionality of Parliament’s conduct.
The government had sought to amend section 180 of the Constitution concerning the procedure for appointing the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court. Under the original procedure, appointments were made by the President from a short-list of candidates submitted by the Judicial Services Commission following a public interviewing process. The amendment sought to change this procedure so that the President would have greater powers of discretion and would only consult the JSC without the obligation to follow its advice. The amendment also affected the appointment by the Chief Justice of judges of the Labour Court and the Administrative Court.
One writer Dr Alex Magaisa an former special advisor to Tsvangirai said “The amendment was controversial and critics argued that it reversed the gains of the 2013 Constitution which had brought openness, transparency, accountability and checks and balances to the process of appointing judges. Previously, the President had enjoyed greater sway in the process of appointing judges with no serious checks and balances.
Others were not impressed by this new process and just before the start of the process to appoint a new Chief Justice in late 2016, the then Minister of Justice, cde Emmerson Mnangagwa started plans to introduce Constitutional Amendment Bill (No. 1) to change the way the Chief Justice and other senior judges were appointed. However, attempts to stop the appointment of the Chief Justice which was underway failed. It is ironic that 4 years later, the amendment is still facing legal challenges.”
Gonese and Majome contended that when Parliament passed the Constitutional Bill in 2017, the process did not meet the requirements of section 328(5) of the Constitution, which requires such a Bill to be passed by two-thirds of the membership of the National Assembly and the Senate sitting separately. Since the President had already signed the Bill into law, they filed a new application challenging the validity of the Constitutional Amendment Act (No. 1). The fact of what the applicants were challenging is very important because, they were only challenging the quorum. The crux of the argument was that the parliament was not fully constituted. a
The Court agreed that there was a violation of the parliamentary procedure since there was no two-thirds majority vote in the Senate. 53 instead of 54 Senators had voted for the Bill. Consequently, the Court declared that “the Bill” was invalid “to the extent of the inconsistency” and set it aside.
The qualification is that the Court suspended the declaration of invalidity for a period of one hundred and eighty days during which period the Senate was directed to conduct a new vote conforming with section 328(5) of the Constitution. This means if the Senate does not regularise the process within the 180 days, the declaration of invalidity would become final. It is this qualification to an otherwise historic judgment that is highly problematic.
The legal significance of this case is that it marks an important precedent that a constitutional amendment can be unconstitutional on procedural grounds. By declaring a constitutional amendment invalid and setting it aside, the Court follows progressive jurisprudence and academic literature on the question of unconstitutional amendments to the Constitution. So the issue is clearly that the unconstitutionality will be found in the failure to follow the procedures so the amendment of the constitution is constitutional.
This then puts to rest the argument being peddled that the government of Zimbabwe is abusing the constitution by being unconstitutional.
This time the parliament was full and the vote was sweeping and only a handful of confused Members voted against it only to respond to the whipping instruction of their chief whip.
As the Court stated, there is a good reason why there is a special procedure for amending the constitution, which differentiates it from the procedure for amending ordinary legislation. It is part of what is dubbed “amendment difficulty”, which denotes the strict procedure by which a constitutional clause can be changed. The idea is to ringfence the constitution so that it is not amended at the whims of the majority at any particular moment. As the Court stated, “The power to amend the Constitution is a limited power. It is conferred on the Legislature for the purpose of ensuring that it is used to produce good governance and the happiness of the people.” The rationale for amendment thus is spelt out as
“The amendment of the Constitution is a matter on which the public places a lot of importance. A swift and easy method of amending the Constitution would weaken the sense of security which the rigid Constitution gives. There would be too little distinction from the method for amending ordinary legislation. That would erode the special status of the supremacy of constitutional law. The Constitution would not occupy the special place it occupies today in the country’s legal system. Changing provisions of the Constitution without following the special procedure provided for in s 328 would expose the Constitution to passing interests. The idea reigns that solidity and security are the most vital attributes of a fundamental law.”
So it is important to note that amending a constitution is not just an act of showing ability. It is indeed a cumbersome process which deals with possible abuse. There are other parts of the constitution which are made harder to amend like
For example, the Declaration of Rights cannot be amended unless it is improving existing rights and only after approval at a referendum. This particular amendment was not affecting the Declaration of Rights directly but still, the level of protection is that it must be approved by a two-thirds majority in each of the two chambers of Parliament – the National Assembly and the Senate. It shows that these protections are real and that their strength depends on the readiness of the Court to protect them. As it stated in the judgment, “The interpretation of s 328(5) of the Constitution must seek to give effect to the fundamental values on which a republican form of government is founded.” It must be therefor understood that amending a constitution is not an easy task and it will be malicious to accuse the government for abusing the constitution by amending it. The court stated that “They [the government] have to appreciate the legal consequences of failure to act in accordance with the procedures prescribed by s 328 of the Constitution.”The Court has exclusive jurisdiction in terms of section 167(2)(d) of the Constitution concerning the question of whether Parliament fulfilled its constitutional obligations. The Court considers the conduct of Parliament and whether it has met its constitutional obligations.
Life should not stop because of other problems so the work of the legislatures which is to legislate must legislate as this is their duty.
Priority is not a source of life so the amendment which provides a
Presidential discretion in selection of judges is the process followed in several countries.
Judges are appointed by presidents in several countries. The amendment gives efficiency.
Efficiency should not override any democratic or political aspects. Where the president has powers to appoint this brings accountability and efficiency.
Section 68 of the constitution protects the Right to fair administration of Justice. The judiciary is an office which brings efficiency and we must remove
red tape. The opposition is making noise pretending to be defending the constitution.
Defending the constitution does not mean ignoring amendments and remaining stuck to the provisions which have been proved to be slowing down progress.
Amendment is seen as an undemocratic by those who have interests in the system.
Public office does not mean public scrutiny for appointment. So judges should not be subjected to such a humiliating process of public scorn. It’s a Brocken procedure that’s why it is being mended. The idea of subjecting judges to public scrutiny removes dignity it makes the whole office a joke. Judges should not play to the gallery but should do their work with dignity. The office of the judge is sacred. Judges should be sacred and their work is sacred. They impose peace and tranquility. We can not hide behind poverty we must adjust our laws as we continue to solve the other problems.
We must appreciate that we are not made for the law but the law is made for us.
The Zimbabwean constitution is undergoing changes this is because as we grow there are issues which refuse to grow with us. But we must adjust the constitution so that it carries the nation and its people into future.
The 2013 Zimbabwe Constitution, which replaced the Lancaster House Constitution, was crafted as an attempt to embrace International Best practices, which of course have proved to be incompatible with our unique circumstances and realities on the ground so the only way to make it conform to our needs is to amend it and empower it.
In a desperate move to soil the process the usual thugs picked on Mwonzora.
Douglas Mwonzora’Name is being used as Scapegate.
A scapegoat is a person who is blamed for the wrongdoings or faults of others especially for the reasons of convenient/expediency. So blaming Mwonzora for Chamisa’s failure is not a new tactic used by the opposition. Borrowing the words of one writer “Munemo” he said
“Chamisa and his clueless leadership must learn to take responsibility for their failures. Zanu was given the right to do what they want with the constitution in 2018.” 2018 exposed the weakness of the opposition and by 2021 the opposition has split in several fragments thus giving all the powers to ZANU PF.
According to Munemo
“Chamisa failed to prevent ZANU from winning parliaamentary elections by  2/3 majority.  Chamisa focused on himself addressing presidential rallies on on a daily basis whilst  imposing his unpopular  friends as MP candidates. Chamisa needs to focus on the upcoming 2023 elections not Mwonzora. You can’t be a social media President and hope to be a national leader. Politics is won on the ground. This thing of always looking for someone to blame is cheap failed politics and a clear sign of fear and bitterness.
The necessity of amending the constitution is motivated by the need to govern smoothly. Judiciary is the strength of every state and thus running a country can be possible if there is a common purpose between judges and the governing bodies. This becomes imperative for the judges to be appointed by the president.
“When President Mnangagwa assumed power in July 2017, he made several binding promises to the people of Zimbabwe, some of which require the cooperation, loyalty and competency of the judiciary, such as the fight against corruption.” This becomes particularly important especially in situations where the efficient and expeditious deployment of Judicial officers is necessary.
This improves efficiency in service delivery as compared to the current requirement for inglorious cumbersome public interviews for judges.
The nation holds the President to account for failure to deliver on his promises, and as such, it is in the President’s and the nation’s best interest that he be accorded a chance to choose his best team to work with for efficient delivery of his mandate.
Thus the provision for such freedom and mandate in the new clauses is an essential amendment.

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