HomeLocalNew constitution: Where Zanu PF, MDC-T and NCA diverge

New constitution: Where Zanu PF, MDC-T and NCA diverge

WHILE Zanu PF, MDC-T and the National Constitutional Assembly agree on many aspects of what should be in the new constitution, the three disagree on fundamental areas to do with the executive, commissions, land, systems of government and on how the bill of rights should be expanded.

On the executive, the NCA is proposing the pre-unity accord arrangement with a symbolic president and an executive prime minister, while Zanu PF prefers the post-1987 unity accord setup of a president and two deputies.

The MDC-T prefers the current executive as prescribed by the global political agreement (GPA), comprising a president and prime minister, but without the vice-presidents and deputy premiers.

The Morgan Tsvangirai-led party is proposing in its position paper on the constitution an elected president, who appoints a prime minister from a party which commands a majority in parliament.

The only difference with the current situation where ministers are appointed by the president in consultation with the prime minister is that the MDC-T believes that the cabinet should be chosen by the premier to ensure checks and balances.

Executive powers of the state, the MDC-T says, “should reside in the president, prime minister and cabinet”. The party suggests that the president should be the head of state and the commander-in-chief of the defence forces.

“The MDC wishes to restate that it has spent its life fighting an all-powerful omnipotent executive president. The president should be elected directly by the people,” says the party’s position paper. “The president appoints a prime minister from an MP whose party commands the majority in parliament.”

Parliament, it said, should have oversight of executive powers.

Meanwhile, Zanu PF has said no to the position of prime minister, preferring the retention of the old executive comprising a powerful president, two vice presidents and cabinet as also proposed in the controversial Kariba draft constitution.

“We need an executive president who shares executive authority with the cabinet and no prime minister as this results in an endless unproductive contest for power between the president and the prime minister that results in a weak state in which neo-colonialism can thrive,” Zanu PF said in its position paper.

The appointment of cabinet ministers, Zanu PF said, should be done by the president.

Both Zanu PF and MDC-T agree that the president should chair cabinet and should be at least 40 years old. He should be subject to two five-year terms.

In total contrast to the MDC-T and Zanu PF positions, the NCA draft constitution is proposing a non-executive symbolic president, who is a titular head of state and commander-in-chief of the defence forces.

The NCA said the president should be elected by an electoral college consisting of all MPs and should be between the ages of 35 and 65.

The duties of the president would include summoning parliament for its first sitting, dissolving the House pursuant to a resolution to dissolve it by the national assembly, assenting to and signing Bills, referring a Bill back to parliament for reconsideration of its constitutionality and make any appointments that he or she would be required to make in terms of the constitution.

The NCA said the prime minister with two five-year terms would be responsible for appointing ministers and assigning functions to them, chairing cabinet meetings, directing the operations of government and must answer questions and respond to motions in parliament.

On the legislature, while the two political parties and civic organisations agree that parliament should consist of the National Assembly and Senate, they disagreed on the composition and election of the members.

Zanu PF said a decision will have to be made on how many seats should be contested on a first past the post basis and how many will be on proportional representation. It is proposing that the country be divided into the existing 210 national assembly constituent seats and 60 senatorial seats.

They want 10 seats for provincial governors, 18 seats for chiefs and five members appointed by the president to the Senate.

On the other hand, the MDC-T is proposing the direct election of 120 members for the House of Assembly and 60 senators appointed by proportional representation.

The MDC-T does not want the current system where the president can appoint members and some seats are reserved.

The party said there should be no unelected MPs and also agreed with Zanu PF that legislators should not be allowed to cross the floor.

The NCA is proposing a 141-member national assembly of whom 70 would be directly elected to represent constituencies and the other 70 come in through proportional representation based on votes in a general election. The other seat would be reserved for the premier.

The NCA proposed that the country should have only five provinces. This it said should result in a senate made up of 58 members — eight elected from each of the five provinces through proportional representation.

The NCA said the remaining 10 must be chiefs and the last eight should be elected by the national assembly at its first sitting and they should choose one each from women, the disabled, the youth, ex-combatants, trade unions, religious groups, business and farmers.

Turning to the judiciary, Zanu PF, the MDC-T and the NCA agreed that its independence should be guaranteed in the constitution.

They are proposing that there be a Constitutional Court followed by a Supreme Court, High Court, Labour Court, Administrative Court and Magistrates and Customary Law Courts.

The NCA also wants in addition a judicial system with a Labour Appeal Court and a Family Court.

The MDC-T party said there should be an independent Judicial Service Commission appointed by parliament to select judges.

The Judicial Service Commission will make recommendations for appointments of the chief justice, judge president and other judges to the president, who must appoint them.

The appointment of the chief justice and other judges must be approved by the senate.

On the appointment of the judiciary, Zanu PF is proposing that the president should appoint judges and the chief justice in consultation with the Judicial Service Commission.

The commission will also be in charge of exercising disciplinary powers over members of the judiciary and ensuring the general well-being and administration of the judiciary and its maintenance in a state of efficiency.

The NCA said the Judicial Service Commission must prepare a list of three nominees for the post of chief justice and submit it to the president.

The president on the advice of the commission and with the approval of the senate would appoint one of the nominees as chief justice.

The president would appoint all other judges on the recommendations of the Judicial Service Commission and with the approval of the senate.

On the bill of rights, Zanu PF wants abortion, homosexuality, sodomy and same-sex marriage banned.

“Homosexuality and all forms of perverse sexual orientations are unacceptable and will be banned.

We should not allow same-sex marriages under customary law to the extent that they are allowed by our traditions and customs,” it said. “The Bible also forbids same sex marriages. The constitution should specifically outlaw homosexuality, lesbianism, sodomy, etc.”

But the MDC-T and NCA wants the issues to be left to interpretation by the Supreme Court or any other courts.

An MDC-T source said: “We are not going into abortion or same-sex marriage issues.

These will be interpreted by the Supreme Court or any other relevant organs of the judiciary. It will be open to interpretation. Questions like when does life start and whether banning same-sex relationships infringe on those people’s rights should be determined by the courts.”

Faith Zaba

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