In the Shadow of Robert Mugabe? Twists and Turns in the First and Second Amendments to the Constitution of Zimbabwe
As Zimbabwe’s ruling party uses its electoral dominance to renege on negotiated concessions in the 2013 Constitution, intense opposition, including a challenge in the Constitutional Court, augurs a long process of judicial evaluation before there is certainty over the permanence of the first and second amendments to the Constitution – writes D. Tinashe Hofisi.
The Constitution of Zimbabwe (2013) is in the process of significant alteration. The first amendment bill was passed on 17 September 2017 in a second vote by the Senate in accordance with a Constitutional Court order and the second amendment bill just sailed through the National Assembly and is expected to pass in the Senate. Intense opposition to both amendments, coupled with a fresh challenge in the Constitutional Court, renders their future indeterminate. Whilst many critics understand this to be consistent with Mugabe-style constitutional revisionism, the latest round of changes evinces a desire to ensure the historical 2023 elections do not lead to the instability, in-fighting and subsequent political crisis of 2017. These could be nascent signs that ZANU PF has more apprehension with re-enacting the Mugabe presidency than would be otherwise apparent.
The first amendment to the Constitution of Zimbabwe was enacted on 7 September 2017, with analysis of this amendment previously published on ConstitutionNet. The original version of the 2013 Constitution subjected all judicial appointments to a public interview process. This procedure caused much consternation when activated to replace the former Chief Justice, the late Godfrey Chidyausiku. Factional fights within ZANU PF surfaced, culminating in unsuccessful attempts to halt the public interviews. The Executive then moved to amend the Constitution and give the President greater leeway in appointing the three most senior judges, that is, the Chief Justice, Deputy Chief Justice and Judge President of the High Court. Thus, the first amendment exempted these three positions from public interviews, with the President making appointments after non-binding consultations with the Judicial Service Commission. Notably, the amendment is constitutionally congruent with such jurisdictions as Ghana, Kenya and South Africa, where the President has more latitude in appointing presiding judicial officers of superior courts.
Following the passage of the first amendment, President Emmerson Mnangagwa appointed the most senior judge, Justice Elizabeth Gwaunza, to the position of Deputy Chief Justice. Prior to this appointment, the amendment was challenged in the Constitutional Court by two legislators. They argued that there had been no vote in the lower house of Parliament whilst the two-thirds majority vote threshold had not been met in the upper house. On 31 March 2020, the Constitutional Court, sitting as a full bench, ruled that the first amendment to the Constitution of Zimbabwe (2013) was constitutionally invalid for failing to meet the constitutional threshold for passage in the Senate. Since the Court upheld the vote in the lower house, it suspended its order of invalidity for 180 days, within which the Senate was ordered to vote on the bill.
The Senate did not comply with this order. Citing the national lockdown implemented to combat the COVID-19 pandemic, the Senate approached the Constitutional Court for a further extension to enable the corrective vote. An extension of 90 days was granted on 25 February 2021 by a three-judge Constitutional Court bench, but it came with a dissenting judgment. Dissenting judgments are rare in the Constitutional Court of Zimbabwe, and this is likely the first such judgment in relation to the 2013 Constitution. It is not apparent whether this is due to the peculiar nature of this case, or because this panel was made up of three judges rather than the full bench of the 31 March judgment, which included the Chief Justice and Deputy Chief Justice.
Justice Anne Mary Gowora’s dissent contended that, in line with the Constitution, the first amendment bill had lapsed at the dissolution of parliament.
The opposing litigant, MP Hon. Innocent Gonese, argued against the constitutional validity of remitting a bill to a recomposed Senate following a general election. After passage of the bill in 2017, parliament was dissolved for the 2018 general elections. This, he argued, meant that the bill automatically lapsed, as outlined in section 147 of the Constitution, rendering any second vote constitutionally invalid. The judges granting the extension maintained that such an argument amounted to reviewing the constitutional validity of an extant judgment from the apex court. Dissenting judge Justice Anne Mary Gowora, however, agreed with Hon. Gonese and insisted that the order of the court meant the bill was pending when the Senate was dissolved in July 2018. In her view, the bill lapsed by operation of section 147 of the Constitution and any attempt to vote on a lapsed bill would itself be a violation of the Constitution.
Nevertheless, the Senate subsequently voted in favour of the amendment in compliance with the court order. A Bulawayo-based lawyer has since challenged the corrective vote by the Senate in the Constitutional Court. He contends that in complying with the court order, Parliament failed to fulfil a constitutional obligation since it voted on a bill which had lapsed.
The Government of Zimbabwe also made progress in passing the second amendment to the Constitution. The full extent and details of this amendment are available on ConstitutionNet. Critics contend that President Mnangagwa and his administration are abusing their majority in the National Assembly to propose and rush through constitutional changes during the pandemic, and that the amendments aim to repurpose constitutional institutions to consolidate President Mnangagwa’s power ahead of the 2023 elections. Whilst the first amendment increases presidential powers in significant ways, the second amendment retains more checks and balances and probably does not live up to this critique. Instead, it asserts the institutional power of ZANU PF over the individual power of its president to avoid the 2017 scenario in which former President Mugabe was so powerful that it seemed he was on course to elevate his wife as his successor.
By scrapping the running-mate clause, the second amendment re-centers the powers of the president’s political party, rather than bolstering the individual powers of the president.
The second amendment will enable the President to continue appointing the Vice President(s) without being on the same electoral ticket. The 2013 Constitution contained a running-mate clause which gave Vice Presidents popular legitimacy and made them as difficult to remove as the President. This proposition was so destabilizing on political parties that there was bipartisan support for its suspension for ten years. That period expires in 2023, which also happens to be a historic election year. Due to the presidential term limits, President Mnangagwa will be contesting for his second and last term. This approximates to the 2017 scenario of a presidency drawing to a conclusion with the attendant frenzy of anticipating, jostling over and planning for the next incumbent. The original 2013 Constitution would have enabled President Mnangagwa to contest the 2023 election on the same ticket with his anointed successor. The second amendment strips him of this power, makes the suspension of the running-mate clause permanent and centers the power of the political party in determining future leadership. Rather than bolster the powers of the president, it re-centers those of his political party.
This has left opposition and civil society critics in the ironic position of advocating for increased individual powers of the President in picking his successor in lieu of the institutional and grassroots power of their political formation. It may signal a desire for presidential successors who have popular rather than partisan legitimacy. Nevertheless, this remains at odds with political representation in Zimbabwe, which has the indelible mark of its Westminster origins. This is the extent to which there is no direct democracy in Zimbabwe. Rather, there is a party-based democracy, save only in respect of independent candidates. Conceptually, the electorate does not vote for candidates who happen to be members of a political party. They vote for political parties as represented by a particular candidate. For this reason, it is the political parties which retain the right to recall candidates. It is also for this reason that it is the political party of the President which replaces him or her upon death, resignation or removal. The electorate does not vote for an individual who has latitude to pick their successor. Rather, they vote for a party whose candidate will occupy an office unless circumstances dictate a successor is required, in which case the party makes the decision. This makes Vice Presidents more of presidential assistants than heirs-apparent, a position which was confirmed by the Minister of Justice and is consistent with the practice of both major parties. Even though the main opposition party is opposed to this amendment, it agreed to the suspension of the running-mate clause and has retained a similar provision in its own party constitution. Thus, the failed running-mate clause renders it an unsuccessful attempt at social engineering.
The second amendment reduces transparency in the promotion of some judges, but the veneration of public interviews as central to accountability overstates their utility.
The second amendment will also enable the appointment of the Prosecutor-General and promotion of sitting judges without any public interviews. Whilst the first amendment removed the requirement for public interviews in respect of the three most senior judicial officers, the second amendment retains public interviews, but provides an alternative when the Judicial Service Commission recommends the promotion of a sitting judge. All persons who apply to be appointed as judges will still be required to undergo public interviews and sitting judges who seek promotions will also be required to undergo public interviews. The amendment creates an exception when the Judicial Service Commission exercises its power as the employer of all judicial officers to recommend the promotion of a sitting judge. It is only in those circumstances that the President will be empowered to promote a judge without public interviews. This reduces transparency and those who supported public interviews are understandably disappointed by this development. On the other hand, the veneration of public interviews as central to accountability overstates their utility. It mistakes the Judicial Service Commission for an externally deliberative body, whose nominees can be evaluated based on interview performance. The Judicial Service Commission remains internally deliberative, with interview performance only forming part of the considerations in the selection of nominees. As such, there is no legal scope for accountability as interview performance is not singularly determinative of judicial nomination. Other factors including gender composition and other forms of diversity are considered, which explains why qualified candidates who are not the best interview performers have previously been recommended for appointment. Further, the Judicial Service Commission is the independent body which employs all judges. Whilst one can argue that non-binding consultations like those in the first amendment increase presidential powers and undermine judicial independence, that is more difficult to assert in instances where the judges themselves are independently recommended for promotion by their employer. The transparency which interviews permit has been retained in all judicial appointments (barring the top three) save in the promotion of sitting judges when recommended to the President by the Judicial Service Commission.
The appointment of the Prosecutor-General will also be on the recommendation of the Judicial Service Commission and thus similar to the clause above. Some argue that the Judicial Service Commission has a high number of presidential appointees (including the three most senior judges) meaning it is compromised. However, institutions often assert independence even towards their appointing authorities. This has not only been the case with Trump-appointed judges (some of whom dismissed alleged electoral fraud cases in the United States), but was the entire basis for the confrontation over the appointment of former Chief Justice, the late Godfrey Chidyausiku’s successor. The Judicial Service Commission’s insistence on proceeding with public interviews after the Executive publicly condemned such course of action shows the capacity for institutional independence even when at odds with the political interest of the Executive. Recently, an anonymous letter from judges decried the influence of the Chief Justice, rather than the President, in the Judicial Service Commission. As such, the argument that more powers to the Judicial Service Commission amount to increase in presidential powers is difficult to sustain.
The Government made several alternations to the second amendment following the consultative process.
The Government made several alterations to this amendment following the consultative process. It heeded concerns from the Judicial Service Commission regarding exclusive promotion of High Court judges by including Labour and Administrative Court judges as eligible for promotions without interviews. The Judicial Service Commission welcomed this new provision and agreed with the Government of Zimbabwe, which argues that repeat interviews for sitting judges potentially jeopardize their ability to command respect. The Commission stated that all judges deserved equal opportunity for promotion without interviews, thus lobbying for inclusion of judges from other courts. Further, the Government sought to address fears associated with the annual extensions of tenure for judges on the Constitutional and Supreme Courts beyond the age of 70 by acting on the Judicial Service Commission recommendation to change this to one non-renewable five-year term. This provision has been criticized as designed to extend the tenure of current Chief Justice, Luke Malaba, as a reward for dismissing the opposition’s electoral challenge in 2018 and also to ensure he rules similarly in future petitions. This overlooks the fact that Chief Justice Luke Malaba was appointed by the late Robert Mugabe over President Mnangagwa’s preferred candidate who happens to be the current Judge President. Some argue that this changed once the 2018 election challenge was dismissed. Nonetheless, the 2018 election challenge was dismissed unanimously by nine judges. If the Chief Justice had been the swing vote in a divided ruling, that would justify desperately seeking to retain his incumbency. In this case, eight other judges agreed with him and would be viable candidates for his replacement. The Judicial Service Commission has stated that it supports this provision as it seeks to retain judges of the most senior courts, many of whom have been asked to act in their positions beyond the retirement age, whilst others have been recruited within the SADC region.
The Government also responded to concerns over removing agreements with foreign organizations from parliamentary oversight by retaining that part of the Constitution. The provision delinking the delimitation of electoral boundaries with the population census has also been removed. As highlighted previously, whilst the Constitution links delimitation to the population census, electoral boundaries are mapped based on registered voters rather than the general population. Thus, the government opted to amend the Census Act and adjust the timing whilst leaving the Constitution intact. Consistent with the recommendation from the public hearings, the office of the Public Protector has been dropped, with role of the Public Protector retained entirely within the Zimbabwe Human Rights Commission.
In public hearings, the youth quota and devolution enjoyed popular support, while repealing the running-mate clause drew criticism.
Similar to the process regarding the first amendment, the report on the public hearings on the second amendment by the Parliamentary Portfolio Committee on Justice, Legal and Parliamentary Affairs showed that views were mixed. Some parts of the amendment such as a youth quota (10 reserved seats in Parliament) and devolution enjoyed overwhelming support whilst others like repealing the running-mate clause and the appointment of officials without public interviews provisions drew more criticism. This dichotomy explains why some parliamentarians from the other opposition party in Parliament voted in favour of the amendment, insisting that they were in support of the provisions which extend women’s representation in parliament and local authorities, the youth quota, and provisions which enable devolution of power.
The second amendment to the Constitution of Zimbabwe (2013) will proceed to the Senate where it will likely be passed and subsequently enacted into law. The experience with the first amendment suggests there may be a long process of judicial evaluation before there can be certainty over the permanence of these changes. The first amendment is already the subject of further judicial scrutiny and political maneuvering. From the moment of independence, ZANU PF consistently used its electoral representation to constitutionalize its policy preferences and is now whittling away negotiated outcomes from the 2013 Constitution. The first and second amendments are both consequences of its overwhelming victories in the 2013 and 2018 elections. Whilst previous constitutional changes were aimed at buttressing executive grip on power, the impending changes partly reflect a party’s endeavor at managing transition in light of new presidential term limits whilst also seeking to exorcise the ghost of Robert Mugabe’s iron grip on party and state. It is highly likely that the overwhelming vote in favour of the 2013 Constitution reflected the institutional support for its passage rather than its provisions’ popularity among the general public. Since the provenance of the 2013 Constitution was this bipartisan manipulation of electoral majorities in Parliament, subsequent one-party dominance naturally leads to further constitutional revision and entrenchment of partisan political interests.
D. Tinashe Hofisi is human rights lawyer and a doctoral candidate at the University of Wisconsin-Madison.