[Bill-Watch] Constitution Watch 5/2014 of 30th June [Implementing the New Constitution : What Has Been Done So Far?]

[Veritas Bill Watch]

CONSTITUTION WATCH
[30th June 2014]
Implementing the New Constitution : What Has Been Done So Far?
 
Introduction
In Constitution Watches 33 to 38 of 2013, which were published between
August and October last year, we set out some of the legislative changes
that needed to be made in order to give effect to the new Constitution.  Now
that the Constitution has been in force for about a year [the Declaration of
Rights came into operation on 22nd May, 2013, and the rest of the
Constitution on 22nd August, 2013] it seems an opportune moment to assess
what has been done so far to bring our laws into line with it.
We shall begin with the legislative changes that should have been made
before or as soon as possible after the Declaration of Rights came into
force on the 22nd May last year.  To the extent that they have not already
been done - and most of them haven't - these changes are very urgent indeed.
Legislative Changes Needed Immediately
1.   Electoral Law:  An Electoral Amendment Bill, which is intended to bring
the Electoral Act into line with the Constitution, was finally passed by
Parliament on 28th May and awaits presidential assent and publication in the
Gazette.  It is woefully inadequate and fails to address several
constitutional issues:  for example, it leaves the preparation of voters'
rolls in the hands of the Registrar-General, whereas the Constitution makes
ZEC responsible for them;  and it does nothing to rectify the anomalous
situation of the Electoral Court.  For more details, see Bill Watches 11 and
12/2014 of 4th March.  A new amendment Bill to remedy these deficiencies
should be prepared as soon as possible.
2.   Citizenship:  The Constitution confers citizenship on most people born
in Zimbabwe, whether or not they are also citizens of another country;  but
it seems they have to go to court if they want to enjoy their rights as
citizens.  The Citizenship Act must be amended as soon as possible to make
their rights clear.  In addition, the Citizenship and Immigration Board
referred to in section 41 of the Constitution needs to be established.
Nothing has yet been done in this regard.
3.   Criminal Law and Procedure:  Several laws need to be amended to bring
our criminal justice system into line with the Constitution:
a.   The Criminal Procedure and Evidence Act does not give effect to the
rights of arrested, detained and accused persons set out in sections 50 and
70 of the Constitution.  Criminal trials that violate those rights are
invalid even though they may have been conducted in accordance with the Act.
b.   The National Prosecuting Authority Bill, though through Parliament, has
not yet been promulgated as an Act.  Even when it is, a Board under its
terms will have to be set up to appoint prosecutors, and any trials that are
conducted by prosecutors who have not been properly appointed are invalid.
c.   The Criminal Law Code contains several provisions which are
unconstitutional.  For example, it makes defamation a criminal offence.  As
the Minister of Media, Information and Broadcasting Services has rightly
pointed out, this is unconstitutional.
d.   The death penalty, as pointed out in Constitution Watch 38/2013, is
unconstitutional in the form in which it is reflected in the Criminal Law
Code and the Criminal Procedure and Evidence Act.  These Acts must be
amended to make the position clear.
4.   Rules of court:  Nothing appears to have been done so far to enact
rules of court to allow the Constitutional Court to exercise its powers
properly.  The rules under which the court is currently operating were
enacted in 1964 - 50 years ago.
5.   Provincialisation:  The Constitution has established provincial and
metropolitan councils, and members have already been elected to them.  No
legislation has yet been prepared to regulate the procedures of the councils
and give them powers.
Other Legislative Changes Needed
A great number of other changes must be made to our law in order to make the
Constitution fully effective.  These changes are not as urgent as the ones
listed above, but they should be made as soon as possible so that people can
enjoy the benefits the Constitution was supposed to bring them.  [Note: What
follows is not a complete list but gives an idea of the amount of work
needing to be done.]
1.   Gender equality:  Many laws discriminate between men and women, and
must be amended to remove that discrimination:
a.   The Guardianship of Minors Act:  This Act assumes that fathers are the
natural guardians of their children, but gives mothers sole custody in the
event of the parents separating.  Section 80 of the Constitution, on the
other hand, gives women and men equal rights in this regard.
b.   Marriage law:  The age at which people may marry [currently 18 for boys
and 16 for girls] must be made the same for both sexes.  Also, the law which
governs marriage is in some instances the law of the country in which the
husband is domiciled:  again, this must be changed so that it is not gender
specific.
c.   Polygamy:  Our law recognises polygamous customary marriages, i.e.
customary marriages in which a man has two or more wives.  Gender equality
demands that if men are allowed two or more wives, women should be allowed
two or more husbands.  That, however, is a legislative change that may need
more than a little care.
2.   Children:  Legislation must be introduced to ensure that children born
in Zimbabwe are accorded the rights conferred on them by section 81 of the
Constitution, in particular:
a.   the right to birth certificates;
b.   the right to be heard in court cases affecting their interests.
3.   Good governance:
a.   Disclosure of assets by public officers:  All State employees must be
required to disclose their assets under legislation mandated by section 198
of the Constitution.
b.   Codes of conduct:  To comply with sections 106 and 198 of the
Constitution, one or more Acts of Parliament must be prepared to prescribe
codes of conduct for Vice-Presidents, Ministers and all public officers.
c.   Standards of good corporate governance:  Again under section 198 of the
Constitution, an Act of Parliament must lay down standards of good corporate
governance for parastatals and other State-controlled entities.
d.   Conditions of service for parastatal heads:  Under section 316 of the
Constitution, Acts setting up parastatals have to be amended to provide for
term-limits and performance-related contracts for chief executive officers
of parastatals.
[Despite the fuss over salaries paid to parastatal heads, there has been no
progress on this front.]
4.   Security services and the Civil Service:
a.   The Public Service Act must be amended to ensure the political
neutrality of the Civil Service, as required by section 200(5) of the
Constitution and to make provision for the enhanced powers of the Civil
Service Commission.
b.   The Acts regulating the security services - the Defence Forces, the
Police Service and the Prisons and Correctional Service - must be amended to
ensure the political neutrality of members of the services, to establish
independent complaints mechanisms required by section 210 of the
Constitution, and to provide for the enhanced powers of the various service
commissions.
c.   Measures must be taken to ensure that the Central Intelligence Office
is non-partisan, professional and subordinate to civilian authority as
required by section 224 of the Constitution.
5.   Local government:  The Urban Councils Act and the Rural District
Councils Act must be amended to bring them into line with Chapter 14 of the
Constitution.  For example, councils must be given autonomy within their
local spheres and an independent tribunal must be established to deal with
the removal of councillors as provided by section 278 of the Constitution.
6.   Traditional leaders:  The Traditional Leaders Act has yet to be amended
to give chiefs the independence to which they are entitled under Chapter 15
of the Constitution, and to set up the Integrity and Ethics Committee
mandated by section 287 of the Constitution.
7.   Property:  The Land Acquisition Act must be replaced with a new Act
giving property owners the protection against expropriation conferred by
section 71 of the Constitution.
Conclusion
The Government has done nothing to bring about any of these changes, apart
from getting two Bills through Parliament, neither of them yet gazetted as
Acts.  As pointed out earlier, the Electoral Amendment Bill is a
half-hearted measure which does not bring the electoral law fully into line
with the Constitution; and the National Prosecuting Authority Bill is only
the first step in legitimising appointment of prosecutors.
It is deeply disturbing that the Government has not done more to implement
the Constitution.  The rule of law, which is a principle enshrined in the
Constitution, entails respect for the law - and particularly for the
Constitution itself, which is the highest law of the land.  If the
Government does not respect the Constitution, what law will it respect?
 
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