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Friday, 12 October 2007

Zimbabwe's 18th Constitutional Amendment

There was some expression of interest to see Zimbabwe's 18th Constitutional Amendment. This is now publicly available. You can access both word and PDF copies here. The extract reads:

This Bill will amend the Constitution in the following principal respects: firstly, to shorten the term of the office of President and make it run concurrently with that of Parliament; secondly, to change the composition of the Senate and House of Assembly; thirdly, to harmonise the holding of local authority elections with elections for the President and Parliament; fourthly, to abolish the Delimitation Commission, the functions of which are to be assumed by the Zimbabwe Electoral Commission, and which will also delimit local authority wards; fifthly, to provide for the appointment of a Deputy Chief Justice; sixthly, to alter the title of the Commissioner of Police and Ombudsman to those of the “Commissioner-General of Police” and the “Public Protector” respectively; and finally, to make provision for the establishment and functions of an independent Human Rights Commission. The opportunity is also taken to correct errors that have become apparent in the text of the Constitution since the last amendment.
Difficult to see anything within the bill that gives MDC renewed. The idea that Zimbabweans in diaspora might vote appears to remain a matter for negotiation. It is certainly not recognised in the amendment, and may even be contrary to the provisions of the current constitution.

2 comments:

  1. Cho,

    Thanks very much for tracking this down, I have tried to review the text in light of the concerns raised in the earlier blog. There are several sections which appear to be exploitable by a hypothetical majority party. As I indicated earlier, the most effective place to apply political leverage in manipulating the allocation of parliamentary seats is in the process of delimiting electoral districts themselves, so-called "Gerrymandering". Amendment 18 restructures the process of delimitation as follows:

    “60 Delimitation of constituencies

    (1) It shall be the function of the Delimitation Commission to determine the limits of the constituencies into which Zimbabwe is to be divided in accordance with subsections (2) to (5): Provided that, if the President notifies the Delimitation Commission of an anticipated alteration in the number of constituencies, the Delimitation Commission shall determine the limits of the anticipated number of constituencies accordingly.

    (2) Zimbabwe shall, for the purpose of the election of members of Parliament, be divided into two hundred House of Assembly constituencies and fifty senatorial constituencies.

    (3) Subject to subsection (4), the boundaries of the House of Assembly constituencies shall be such that at the time of delimitation the number of voters registered in each House of Assembly constituency is as nearly as may be equal to the number of voters registered in each of the other House of Assembly constituencies.

    (4) In dividing Zimbabwe into House of Assembly constituencies the Delimitation Commission shall, in respect of any area, give due consideration to—
    (a) its physical features;
    (b) the means of communication within the area;
    (c) the geographical distribution of registered voters;
    (d) any community of interest as between registered voters; and
    (e) in the case of any delimitation after the first delimitation consequent upon an alteration in the number of House of Assembly constituencies, existing electoral boundaries; and whenever it appears necessary to do so in order to give effect to the provisions of this subsection, the Commission may depart from the requirements of subsection (3), but in no case to any greater extent than twenty-five per centum more or less than the average number of registered voters in House of Assembly constituencies.

    (5) After delimiting the House of Assembly constituencies, the Commission shall divide each province into five senatorial constituencies by assigning to each senatorial constituency a House of Assembly constituency or two or more contiguous House of Assembly constituencies, and in so doing the Commission may be guided but not bound by any principle or consideration specified in subsections (3) and (4)."


    Subsection (3) specifies only that districts shall be equal in population, everything else is left to Subsection (4), which is couched in terms of guidance, respect and consideration. Not only is the Commission invited to exercise its opinion as to "the means of communication within the area," and "the geographical distribution of registered voters," but they are further invited to determine what constitutes "community of interest as between registered voters;" as long as they don't exceed their mandate under Subsection (3) by more than 50 percentage points. Exploitation of that spread alone is capable of transforming a 50-50 deadlock up to a 60-40 majority. In combination with selective concentration of core voting constituencies this advantage can be compounded into majorities of 75-25 or greater.

    Subsection (5) provides that the same Commission be "guided but not bound" in assigning Senate seats to one or more House districts. Majority capture of disproportionate Senate seats can be facilitated by groupings of districts in odd rather than even numbers. Given an average of 4 House seats per Senate seat, look for a disproportionate number of 3 and 5 seat districts. The transfer of Provincial Governors and Chiefs to the Senate means that elected majorities must exceed 85% to overcome united opposition by the 34 unelected members.

    Then there is this rather odd position of Public Protector, who is empowered to act, not as a sworn officer of the Judiciary, but instead "in any case where it is alleged that a person has suffered injustice . . . and it does not appear that there is any remedy reasonably available by way of proceedings in a court or on appeal from a court." The majority party is however permitted to designate by Act of Parliament, among other particulars of the post, "the officers and authorities whose actions are not subject to investigation by him.”.

    Sadly not even the process for appointment to the Human Rights Commission has been crafted in such a way as to minimize capture by the Executive branch. The ability to appoint the Chair and to select the remaining 8 members (at least 4 of which must be women) from a Parliamentary list of 16 nominees, allows for majority capture of the Commission if just 25% of the nominees are presidential partisans (none of which must be women). Alternatively there is nothing to prevent a narrow Legislative majority from stacking the entire list of nominees with their own partisans (all of which may be women) over the objections of the Executive.

    ReplyDelete
  2. Yakima,

    I was waiting for your assessment before I 'opened my mouth'!

    My assessment was the same especially on the the Human Rights Commission. It seems the President still retains some control over this.

    What I am now thinking is that the Opposition are probably seeking concessions elsewhere. It appears they lost the constitutional amendments in exchange for a better deal via the Mbeki route.

    What that might mean is they'll get good terms from the on-going Mbeki talks but if they lost the elections MDC's position might well be worse than it is now. Crucially, whoever wins may well exert a new level of legitimate autocracy.

    Its delicately poised.

    ReplyDelete

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