LEGAL experts this week said Justice minister Patrick Chinamasa had no constitutional obligation to consult both formations of the MDC before crafting the draft Zimbabwe Constitutional Amendment No19 Bill to give effect to the September 15 power-sharing deal.
They however said it would have been “politically correct” to have the input of the two parties to demonstrate the spirit of the global political agreement (GPA) brokered by recalled former South African President Thabo Mbeki.
The government announced last week that it had drafted the Bill and sent it to Mbeki, a move that drew a hue and cry from the Morgan Tsvangirai-led MDC which insisted that it should have participated in its crafting. The party rejected the draft and drew up its own.
The Bill will give legal effect to the GPA and will create the office of prime minister and two deputies.
Talks on the constitutional amendment opened in South Africa on Tuesday with MDC-Tsvangirai insisting that the negotiations should not be narrowed to the Bill, but should deal with outstanding issues, among them ministerial portfolio allocations, appointment of governors, ambassadors and permanent secretaries and composition of the proposed National Security Council.Â Â
The MDC demands are contrary to the ruling of Sadc earlier this month that the only sticking issue was the allocation of the Home Affairs ministry, which the regional bloc said should be co-managed by Zanu PF and the MDC-Tsvangirai.
Sadc also ruled that the constitutional amendment be crafted, taken to parliament and passed to enable President Robert Mugabe to constitute “forthwith” an inclusive government.
Legal experts said arguing over where the amendment Bill should have originated from was just politicking, because the power-sharing pact did not specify who had the mandate to draft it.
Constitutional law expert and also chairperson of the National Constitutional Assembly (NCA), Lovemore Madhuku, said Chinamasa had no constitutional obligation to consult the MDC in crafting the Bill.
“There was no constitutional requirement on who should have drafted the Bill, but politically it was wrong for Chinamasa to draw up the Bill without any input from the MDC,” Madhuku said.
He said the two political parties would need to work together for the Bill to get through parliament, as neither of them had the mandatory two-thirds majority in the House.
Madhuku added that Zanu PF and the MDC-Tsvangirai were wasting time debating the origin of the Bill and having protracted disputes on its contents when parliament should iron out its flaws.
“The politicians are wasting time debating about the contents of the Bill at this stage as the parliamentary process, which will come later, will remedy any defects in the Bill,” Madhuku argued.
Terrence Hussein, a Harare legal practitioner, agreed with Madhuku that the government had no legal obligation to consult the MDC formations on the drafting of the constitutional amendment.
He argued that the GPA was not enshrined in the Constitution of Zimbabwe and, therefore, had no legal effect.
“Zanu PF did not have any legal obligation to invite the MDC in the crafting of the Bill although they had a political obligation,” Hussein said. “Politically it would have been ideal for the two parties to work together in drawing up the final draft of the constitutional Bill.”
A parliamentary legal services NGO, Veritas, is of the opinion that there should have been a combined drafting of the Bill and this should have started immediately after September 15.
“What is happening now seems a time-wasting method of producing the Bill, with the country in dire extremity and without a proper government,” the lawyers said. “It is extraordinary that representatives from all three parties were not pulled in to draft the Bill together, as according to the GPA the substantive terms were already agreed upon by the party negotiators.”
The lawyers said pending the formation of the inclusive government, the Bill could be introduced in parliament in terms of the constitution.
The Bill can be introduced in parliament by either of the two vice-presidents or alternatively by Chinamasa who, in the absence of the inclusive government, has been the caretaker Justice minister.
The lawyers said another choice would be for Tsvangirai to be immediately appointed prime minister.
“The GPA specifies only one ministerial appointment before the introduction of Constitution Amendment No. 19,” said the lawyers. Â
Article 20.1.3 of the GPA states that: Â (The President) “shall pursuant to this agreement, appoint the prime minister pending the enactment of the Constitution of Zimbabwe Amendment No 19”. Â
Article 20.1.6 (3) specifies that the prime minister will be Tsvangirai.Â
Minister of Information Sikhanyiso Ndlovu last week said: “A Bill cannot go to parliament if it is not approved by Cabinet” and the Bill would have to be presented and steered through parliament by the new MDC-Tsvangirai minister responsible for constitutional affairs. But constitutional law experts said if government sticks to the line that ministers and Cabinet have to be appointed before the Bill is taken to parliament, it would lead to another impasse between MDC-Tsvangirai and Zanu PF.
“The MDC-Tsvangirai has stated categorically that they must have a mutually-agreed Constitution Amendment No 19 passed into law first before accepting ministerial and cabinet posts. In view of the delay and past disputes they must have legal authority before accountability,” Veritas said.
According to the lawyers, there is no constitutional or legal requirement for prior cabinet approval of a Bill before it goes to parliament. Â
The lawyers said there had been a long-standing internal government administrative practice under which all government Bills were taken for approval to the Cabinet Committee on Legislation and Cabinet itself before going to parliament.
This practice, however, did not have the force of law. The experts said the constitutional procedural requirements make it unlikely that the Bill would become law before the middle of January, even if the parties reach agreement on its wording this week.
“The Bill must be printed and gazetted as required by section of the Constitution, and this would take until the end of November or early December,” said the experts.
After the Bill has been gazetted, 30 days have to elapse before it is taken to parliament.
During the 30-day period the Bill must be referred for consideration to the relevant parliamentary portfolio committee, but since parliamentary committees were still to be set up this would have to be done when parliament resumes sitting.
During this time the Bill will be made available for public scrutiny and the relevant portfolio committee should call for written representations from the public and arrange stakeholder meetings and public hearings.
A report from the portfolio committee must be presented during the second reading of the Bill in parliament.Â
Once it is before parliament, the Bill should be debated in both Houses, which under normal rules of procedure would take at least two weeks although if the parties are in agreement motions to fast-track it could be passed, and it could sail through the House of Assembly and Senate within a few days.
After being passed by parliament, the Bill would then have to be signed into law by the president.
By Lucia Makamure