Amendment No.2 is shredding the Constitution: Gonese

Amendment No.2 is shredding the Constitution: Gonese
Amendment No.2 is shredding the Constitution: Gonese

Mutare Central legislator Innocent Gonese has told the National Assembly that the Constitution Amendment Bill No.2 is not seeking to close any gap but just to shred the constitution that was voted for by citizens.

Constitution Amendment Bill No.2 which currently going through Second Reading in the National Assembly, is ringing various changes to the 2013 Constitution.

Chief among the changes is to remove the running-mates clause and exempting judges from public interviews, among many other changes.

Below is the full text of Honourable Gonese’s debate speech in the National Assembly:

Mr. Speaker, I will now go to the issues relating to Amendment Number 2.  I believe that it is very unfortunate Mr. Speaker that as a country, we will go down in history for having mutilated our Constitution, turning it into shreds and unfortunately, this is what this Amendment is seeking to do.  I am aware that the Constitution allows for amendments but in law as the Hon. Minister of Justice, Legal and Parliamentary Affairs is aware of, what is the mischief, what is the gap, what is the lacuna which we are seeking to cure and in this instance I submit Mr. Speaker that there is no mischief which we are seeking to cure.  What we are actually doing is to revert to the imperial precedence, so this Amendment is unfortunately very retrogressive.  It takes us backwards as the people of Zimbabwe.  We thought that we had made giant strides when we came up with the current Constitution. 

I will now revert to the amendments which I submit that are very retrogressive.  I have already alluded to the fact that we are reverting to imperial precedence, an all-powerful and encompassing office which is a bambazonke, which does everything.  I will start like what others have done with the appointment of Judges.  We came up with a brilliant provision that allows for public interviews for all Judges of our honourable courts.  Amendment Number 1 sought to remove the Chief Justice, the Deputy Chief Justice and the Judge President from this procedure.  What this amendment is seeking to do is to remove Judges of the Supreme Court, Judges of the Constitutional Court from the public interviews.  The danger that we were going to have is of mediocre Judges who if they have been subjected to the public interview process, would be exposing themselves.  Unfortunately, we have quite a number of Judges who were appointed before the operation of Section 180 and the bottom line Mr Speaker, is that if a Judge was appointed to the High Court, who failed these public interviews, we are making an assumption that that Judge is competent.  I know that one of the justifications that the Hon. Minister of Justice, Legal and Parliamentary Affairs gave in his Second Reading Speech was that these Judges would have been interviewed when they became Judges but we have got currently Judges in the superior courts who were never subjected to the interview process. 

More importantly, you can be appointed a Judge today of the High Court but because of your incompetence, this will be exposed through your poor judgement some of which will be overturned on appeal to the Supreme Court or to the Constitutional courts depending on whether the matter is a constitutional one or not.  So, the interview process is meant to expose those judges so that we do not have mediocrity on our benches but our appointments are based on meritocracy.  These are interviews carried out by the Judicial Services Commission which includes the Chief Justice, Judge President, which includes eminent jurists in our jurisdiction and seconded by the Law Society.  This is a transparent process and why we are departing from that is not known, the only assumption I can make is that they want to pack a bench full of pliant Judges who toe the line. 

To illustrate the point further Mr. Speaker Sir, we now have a scenario where Judges of the same superior courts are now going to be subjected to different conditions whereby they can extend their terms of office beyond the age of 70 and yet the same latitude will not be granted to Judges like of the High Court or the Labour Court but those of the Supreme Court and the Constitutional Court.  The point Mr. Speaker is that these Judges will dance to the tune of the Executive and to make it worse to compound an already bad situation; we actually have a situation where these Judges are going to renew their contracts on an annual basis so they will try to please their master to ensure that their tenure is extended on an annual basis.  Even the Judicial Service Commission, when they made submissions before the Justice Committee, it was concerned about this annual extension.  The bottom line Mr. Speaker Sir, is that we have got so many lawyers in our jurisdiction, we have got so many eminent jurists at our universities, so we do not have a shortage of people who can fill in those Supreme Court and Constitutional Court benches.  If the normal retirement age is 65, and that of Judges actually five years above that, why do they want to continue in office?  If they reach the age of 70 Mr. Speaker Sir, with due respect, they must retire and go and tell stories to their grandchildren so that those of the younger generation can get appointed to fill in those vacancies.  We have Judges in the High Court who will not be able to get elevated because there are some old madhalas in the Supreme Court and the Constitutional Court.  You want to extend their tenure of office by another five years on an annual basis which make them very loyal to the Executive. 

So, in terms of the Judiciary, these are retrogressive amendments.  The question is, what is wrong with the public interview appointments process? If you are good, you are good.  I know that the Hon. Minister has said that we do not want to embarrass our Judges but look, if you are competent, you will perform very well in an interview, so what are those Judges afraid of?  Why do they not want to be subjected to that interview process which is in the eyes of the public, if any appointments are made, the people of Zimbabwe can be confident that we have got the best man or the best woman for the job in terms of our superior courts. 

I want also to talk about the issue of running mates, Mr. Speaker Sir, political parties were given a period of ten years to adjust to this new phenomenon whereby the Vice President would be elected together with the President at the certainty in terms of succession.  This is such that one knows exactly that if I am electing this person on this ticket, if something happens to him or her, whether they are going to resign, die in office or get incapacitated, the running mate will take over.  In the event that the running mate is not able to complete the term, the Second Vice President, who is the third on that ticket.

 I do not understand why you want to revert to a situation where power is concentrated in the hands of one individual.  It does not matter who that individual is.  The basic point is that we do not want a situation where you concentrate power in the hands of one individual.  So, I believe Mr. Speaker Sir that there was nothing wrong and there is nothing wrong with this amendment which was due to come into effect in 2023.  Why are we removing it?  With the current scenario, we are going to have Vice Presidents who are not really effective because their power is in the hands of an individual who can remove them at their pleasure.  So, I believe Mr. Speaker that in this respect again, this is a retrogressive amendment.

 I will talk about the increase in the number of ministers who are appointed to the Executive who is not in Parliament.  Currently, it is five.  Mr Speaker Sir, that number is adequate.  When we were in the Constitution-making process, the original number proposed by COPAC was actually three and it was at the behest of the President and the Prime Minister then that this number was increased to five.  When you look at the appointments which were made in 2018, it is clear in my view that five is more than adequate.  Let us look at who was appointed.  Apart from Hon. Kirsty Coventry and Hon. Mthuli Ncube, the other three are political appointees.  If you look at Hon. July Moyo; he actually lost in Redcliff, the former Minister of Health and Child Care, Hon. Dr. Obadiah Moyo lost in Chitungwiza and Hon. Prof. Amon Murwira lost primary elections.  So at the end of the day, this was not intended to bring technocrats but to bring in losers who would have lost either in the primary or the general elections. 

I believe Mr. Speaker there is no need whatsoever to increase that number from five.  Five is more than adequate.  If you look at what happened in 2018, only two appointments were based on what could be deemed to be technocrats who are not in the political field and I do not understand why we are increasing to seven except that we want to extend our patronage system so that whoever loses in primary and general elections knows that he or she can be get appointed through the back door.

I want to also talk about the amendment relating to the re-introduction of the Office of the Public Protector. With due respect – [HON. ZIYAMBI:  you can leave that one.] – It has been deleted, so I will then reserve my fire.  Thank you very much.  At least some sense has prevailed.  I know that my Hon. Minister here is in the majority of times a very reasonable person and I would hope that he would also allow this reasonableness to extend to the provisions which we are talking about.

In terms of gender balance, Mr Speaker Sir, I think we are looking for an excuse. When you look at the number of women we had on the directly elected seats in 2013, it actually went down.  I think it was 34% and it went down to 25%.  When it came to the next election, it went down to 24% in 2018.  The bottom line Mr Speaker is that we do not want to implement the provisions of Sections 17 and 26.  If we are genuine about gender balance and gender parity, we must be looking at amending our electoral law in such a way that political parties are obliged to ensure that on their list of candidates, there are more women. 

When we introduced PR, we were the pioneers and Namibia came after us, so we should also be pioneers to say that with our electoral law, let us have constituencies where men are not allowed to compete. This can be done on rotational basis and I believe this is when we can truly say that we are subscribing to the principles of gender balance.  This can be a stop gap measure but we have no excuse Mr. Speaker Sir.  This is 2021 and we had this new Constitution in 2013.  Why have it taken us eight years to do absolutely nothing in terms of enhancing the status of women in terms of enabling women to get elected in a way which guarantees that among the elected seats, we have more women.  As it stands now, a lot of people derogatorily refer to them as ‘bacossi’ and things like that.  Sometimes when we look at some of the privileges and things which the PR MPs can do, you find that for example under CDF, they are not directly receiving anything.  It is because they are not regarded as being on equal footing with those who are directly elected. 

The whole purpose and intention of that amendment in 2013 were to give us time to put in place appropriate mechanisms. Unfortunately, this extension, I have nothing against it because, at the end of the day, when you are faced with such a situation, you may have to accept things as they are.  However, we have got to call a spade a spade.  We the men in this country have not subscribed to the principles where we are really committing ourselves to the issue of gender parity. For that reason Mr Speaker Sir, it is my respectful submission that we should look at more ways to ensure that gender balance is achieved, not just in the Legislature but also in the Local Government elections; the urban councils and the rural councils.  This extension benefits those who come to Parliament. When we look at the council, if you look at the disparity in the numbers between men and women, it is pathetic Mr Speaker, simply because we did not take a holistic approach to look at the whole electoral law and say how do we do it. 

When we did the PR, we were pioneers. Why can we not be pioneers to come up with innovative ways which are uniquely Zimbabwean, where we actually say we can even have a rotational system?  People are notified in advance that for the next cycle of elections, these constituencies are reserved to enable those who have been marginalised or disadvantaged to also be able to compete in the future on an equal footing.  It can only be done when you have got that promotion which we did at universities for example.  We had a situation where because of the gender imbalance, for medicine boys could have 15 points but girls could go with 13 points.  This is not because they are not competent but simply because when it comes to a bottleneck system, some of the people who fail to get places at universities are very competent, simply because there are limited places.  That was a principle which we used at our universities.  Why can we not use that to ensure that in terms of representation, the disadvantaged gender can also have an opportunity to get empowered so that in the future once that window period is passed, we can then have a situation where gender balance is actually achieved.  I will also talk about the youth quota.

I will just talk about youths.  I think one of the concerns raised is that there are just ten seats throughout the country.  If we are going to have one per province, the danger is that this is going to be just benefiting a dominant political party.  When we look at the representation of the youth, I think we must perhaps be looking at an amendment, which also allows independence.  The seats are too few and I believe that the manner in which it is sought to be done is unfortunate. 

Before I conclude Mr Speaker, I just want to revert to the issue of democratisation and process.  When it comes to processing Mr Speaker, it was very unfortunate.  The Executive was so determined to push this amendment through to the extent that consultations were done at a time when this country was ravaged by the COVID pandemic.  Some people were not given an opportunity to participate, particularly those in the rural areas because they were limited to just 50 at a time.  I participated in some of those hearings; people were not able to come. There were travel restrictions at the time, apart from the fact that most of the venues were full to capacity.  Yes, an effort was made to have more than two or three hearings but was not adequate.  As a result of this, a lot of Zimbabweans were deprived of that opportunity.  Most importantly Mr Speaker, when we have got such a far-reaching and critical amendment, it was important for them to have some debate among the people of Zimbabwe during this amendment just like what we did with the COPAC process, where we had wide consultations.  I would like to say as a parting short; this is a restoration of dictatorship.  I thank you.