Shortcomings Of The Welshman-Chinamasa's Kariba Draft

The organisation indicated that the view is reflected in the Zimbabwe People’s Charter, which calls for a “people-driven, participatory” process of constitutional reform spearheaded by an inclusive All Stakeholders Commission.

"The Kariba Draft should be rejected because it is based on the Constitutional Commission Proposal, a document that has already been rejected by the people of Zimbabwe. Moreover, as described below, the ways in which the Kariba Draft differs from the Constitutional Commission Proposal generally reflect compromises of democratic principles of governance and further divergence from the will of the people.

ZLHR pointed out that the content and structure of the Kariba Draft are closely tied to the content and structure of the Constitutional Commission Proposal.

"Over half of the articles in the two documents are identical, and most of the changes that have been made are extremely minor. Therefore, nearly all of the weaknesses that led to the rejection of the Constitutional Commission Proposal are replicated in the Kariba Draft. Despite the broad similarity of the two documents, a number of major changes to the Constitutional Commission proposal were made by the framers of the Kariba Draft.

"In many cases, these changes involve the replacement of a provision of the Constitutional Commission Proposal with one from the current Constitution. In some places, changes have been made which clarify or strengthen provisions in the Constitutional Commission Proposal. However, there are many places where changes have been made which weaken the Draft," said ZLHR.

The organisation saoid extremely worrying are many small changes that appear to be insignificant but may open the door for political manipulation of government structures.

"For example, the Kariba Draft makes the removal of a member of Parliament automatic after he or she is absent from 21 consecutive sittings, whereas the Constitutional Commission Proposal makes removal contingent on a vote of the Senate or House of Assembly. This change appears inexplicable, but given Zimbabwe’s history of violence and intimidation in the political arena, it is possible to imagine that the change was crafted to allow the expulsion of opposition politicians after they have been arrested or forced into hiding. Many seemingly minor changes reflected in the Kariba Draft raise similar questions about the intent of the drafters," said ZLHR.

Under the Kariba Draft, all executive authority rests in the President, who “takes precedence over all other persons in Zimbabwe,” and his Cabinet.

Alternatively, the Constitutional Commission Proposal suggests that the President share executive authority with a Prime Minister. ZLHR indicated that although the Prime Minister’s role under the Constitutional Commission Proposal is relatively weak, the complete absence of this office in the Kariba Draft removes a vital check on the power of the President.

Under the current Constitution, the President enjoys expansive, unchecked powers that can be used for political advantage. These powers are not diminished under the Kariba Draft.

The Draft allows the President to unilaterally declare a state of public emergency and suspend human rights protections. Even if Parliament fails to approve such a Declaration, the President may cause the state of emergency to remain in effect for up to 21 days.

"The Kariba Draft also maintains the President’s ability to grant pardons or reprieves to those convicted of criminal offences. It eliminates many of the checks on presidential power that were included in the Constitutional Commission Proposal. For example, the Kariba Draft removes the need to consult with another office or gain Senate approval when carrying out many executive functions.

"Moreover, the Draft adds a section from the current Constitution which limits the ability of courts to inquire into the manner in which Executive powers are exercised. In addition to these deficiencies, the Kariba Draft allows the President to unilaterally appoint many public officers and provides for the structural dominance of the other branches of government by the President," said the organisation.

The Kariba Draft has been noted to retain the current Constitution’s framework for presidential appointments.

The lawyers organisation indicated that appointments are most often made after “consultation” with some other individual or body. In most cases, that person or body is also appointed by the President, whereas the Constitutional Commission requires the Senate to approve most presidential appointees, the Kariba Draft contains very few limits on the President’s power to appoint individuals of his choice.

ZLHR noted that the Draft also eliminates checks on the President’s power to appoint by eliminating the office of Prime Minister and that for these reasons, very few public institutions would operate independently under the Kariba Draft.

"In addition to presidential appointments to the legislature and judiciary under the Kariba Draft, no individual or body has the authority to block a President’sappointment to the following offices or bodies: Vice-Presidents,  Ministers, Cabinet members, Diplomats, ambassadors and “principal representatives of Zimbabwe abroad”,  Judicial Service Commission1, Attorney-General and Deputy Attorney-General, Chairperson of the Public Service Commission, Permanent Secretaries, Commander of the Defence Forces and commanders of particular services of the, Defence Forces, Defence Forces Service Commission, Commissioner-General of Police,  Police Service Commission, Commissioner of Prisons, Prison Service Commission,  Chairperson of the Zimbabwe Electoral Commission, Chairperson of the Zimbabwe Human Rights Commission, Zimbabwe Anti-Corruption Commission," said ZLHR

It also noted that under the Kariba Draft, the Legislature is dominated by the Executive, whereas the Constitutional Commission Proposal suggests a Senate comprised of 60 elected members, the Kariba Draft replicates the current structure of the Senate, with its presidential appointees.

"This provides an almost insurmountable senatorial majority for the President’s party. The Kariba Draft, like the Constitutional Commission Proposal, permits the President to dissolve Parliament at any time, allowing him to override proposed legislation that he opposes and perhaps escape impeachment. He may also unilaterally extend a term of Parliament during times of war.34 Moreover, the Draft makes it very difficult for Parliament to pass a vote of no confidence".

ZLHR noted that the Draft removes the subsection in the Constitutional Commission Proposal that specifies that if a President fails to comply with the requirements of a vote of no confidence he must resign, allowing a President to simply ignore such an action.

The Kariba Draft is also accused of departing from the Constitutional Commission Proposal in a number of significant ways that do not directly touch upon executive power.

"For example, the Draft envisions a National Assembly composed entirely of members elected by a single constituency. This eliminates the Constitutional Commission Proposal’s establishment of 50 seats for members elected under a system of proportional representation, a provision which may have helped minority groups in Zimbabwe gain parliamentary representation’.

Additionally, the Kariba Draft makes it easier to alter some provisions of the Constitution, noted ZLHR.

"Many of the departures from the Constitutional Commission Proposal in the chapter on Parliament seem inexplicable, except that they may be evidence of efforts by politicians to open the door for manipulation of the legislative system for political gains".

Lawyers have noted that the Kariba Draft, like the current Constitution and the Constitutional Commission Proposal, fails to ensure the independence of the Judiciary.

"Whereas the Constitutional Commission Proposal requires Senate approval of the President’s judicial appointments, the Kariba Draft only requires that the President select an appointee from a list provided by the presidentially-appointed Judicial Service Commission or gain approval of his own choice from that group".

"The President closely controls the procedure for removing judges from office. The President may initiate an inquiry into a particular judge and personally appoint a three-member tribunal to consider his or her removal. The Kariba Draft in many places adds to the provisions on the Judiciary contained in the current Constitution and the Constitutional Commission Proposal. In some instances, the changes give the President or a presidential appointee additional control over the structure of the judiciary," ZLHR said.

The organisation noted that the Kariba Draft, the current Constitution and the Constitutional Commission Proposal establish frameworks for elections which are very similar.

"Where the Kariba Draft differs from the other two documents, it is usually for the purpose of filling in procedural details rather then making significant substantive changes.42 What all three constitutions have in common is the establishment of an electoral commission that is insufficiently independent. Each one gives the President ultimate authority in selecting commission members.

"Whereas the Constitutional Commission Proposal requires approval of appointments by the Senate, the current Constitution and the Kariba Draft only require insignificant “consultation” with the presidentially-appointed Judicial Service Commission and the Committee on Standing Rules and Orders, or in some cases, appointment from a list provided by the former group".

It indicated that the Kariba Draft maintains the structure and most of the content of the Constitutional Commission Proposal in regard to the protection of fundamental rights and freedoms.

"Therefore the weaknesses of that proposal are replicated in the Kariba Draft. Specifically, the Kariba Draft fails to protect many vital rights, such as the freedom of the media and the right of workers to strike.

"Moreover, social and economic rights such as the right to housing, education and health are dealt with in a “National Objectives” section that is merely “directory in nature,” meaning that compliance is not mandatory. The Kariba Draft strengthens a few of the rights contained in the Constitutional Commission Proposal. For example, pregnant women are added to the classes of persons protected from unfair discrimination. However, most of these changes are relatively minor and just as often the Kariba Draft weakens rights protections by including additional exceptions or limitations," said the organisation.

Of particular significance, ZLHR said, is the Kariba Draft’s word-for-word incorporation of the sections in the current Constitution that deal with the right to property.

"This portion of the current Constitution has been scarred by numerous amendments and fails to protect anything except the state’s unchecked ability to acquire and distribute land. The complete reproduction of this text demonstrates that the Kariba Draft is a hastily negotiated document that reflects narrow political considerations rather than a rigorous analysis of rights protections or consideration of the will of the people.

"The Kariba Draft provides for the establishment of provincial councils and local authorities. The functions assigned to these bodies, though very limited, are greater than those provided in the current Constitution or the Constitutional Commission Proposal. However, these powers are not guaranteed and can be taken away by the central government at any time. Provincial and local bodies may be manipulated by the central government, which, through an Act of Parliament determines their composition. Furthermore, Provincial Governors, who chair provincial councils, are presidential appointees," said ZLHR.

The lawyers body noted that the Kariba Draft opens the door for the establishment of a bloated, inefficient government and that compared with the Constitutional Commission Proposal, all three branches of government are potentially larger.

"The Constitutional Commission Proposal contains a clause limiting to 20 the number of Ministers that the President can appoint. This clause is dropped in the Kariba Draft, allowing the President to appoint as many Ministers as he chooses and create a Cabinet of any size.

"Both the Senate and National Assembly have more members than are provided for in the Constitutional Commission Proposal. The Kariba Draft provides more detail than the Constitutional Commission Proposal on the composition of the Constitutional Court and Supreme Court, but unlike that proposal allows the President to appoint as many judges as he likes to the High Court," said ZLHR.