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NATIONAL ASSEMBLY HANSARD 09 JULY 2020 VOL 46 NO 53

PARLIAMENT OF ZIMBABWE

Thursday, 9th July, 2020

The National Assembly met at a Quarter-past Two o’clock p.m.

PRAYERS

(THE HON. DEPUTY SPEAKER in the Chair)

ANNOUNCEMENTS BY THE HON. DEPUTY SPEAKER

STANDING ORDER NUMBER 60

THE HON. DEPUTY SPEAKER: May I remind Hon. Members that one minute statements are provided for in Standing Order Number 60 as follows:  A Member who is not a Minister may have a statement for one minute on matter of public importance.  One minute statements shall be until 1435 p.m. on Tuesday, Wednesday, Thursday and 0935 on a Friday.  Hon. Members who want to make their statements have to observe this Standing Order.

NON-ADVERSE REPORT RECEIVED FROM THE PARLIAMENTARY LEGAL COMMITTEE

THE HON. DEPUTY SPEAKER:  I have to inform the House that I have received a Non- Adverse report from the Parliamentary Legal Committee on the Constitutional Court Bill, [H. B. 11A, 2019].

         Consideration Stage: With leave forthwith.

CONSIDERATION STAGE

CONSTITUTIONAL COURT BILL [H. B. 11A, 2019]

         Amendments to Clause 13 put and agreed to.

         Bill, as amended, adopted.

         Third Reading: With leave, forthwith.

THIRD READING

CONSTITUTIONAL COURT BILL [H. B. 11A, 2019]

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that the Constitutional Court Bill [H. B. 11A, 2019 be now read the third time.

Motion put and agreed to.

Bill read the third time.

FIRST READING

CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 2) BILL [H. B. 23, 2019].

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI) presented the Constitution of Zimbabwe Amendment (No. 2) Bill [H. B. 23, 2019].

Bill read the first time.

 Second Reading: With leave, forthwith.

SECOND READING

CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 2) BILL [H.B. 23, 2019].

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I want to thank you for the opportunity to present Constitution of Zimbabwe Amendment (No. 2) Bill.  Madam Speaker, I will just go through some of the clauses in the Bill and explain a little bit the purpose of having this amendment.

Clauses 3, 4, 5, 6 and 8 seek to dispense with the running mates concept of the Vice Presidents.  You will realise that these clauses are interrelated because we have to separate the election of the President from that of the Vice President, hence the need to ensure that we deal with all those clauses.  It has been said that there are several amendments, but they are interrelated in that you cannot dispense with the running mate clause without amending the subsequent sections that follow.

Section 92 (2) of the Constitution then provides that every candidate for election must nominate two persons to stand for election jointly with him or her as Vice President.

Subsection (3) provides that the President and Vice President are directly elected by registered voters throughout Zimbabwe.

New Clause 6 of the Bill seeks to provide that instead of the Vice President standing elections jointly with the President, they shall be appointed by the President as soon as the President assumes office.

Clause 7 seeks to amend Section 95 of the Constitution and provides that the term of office of the Vice President starts on the day he or she is appointed by the President and sworn in.

Clause 9 seeks to amend Section 101 of the Constitution.  The amendment seeks to provide for succession in the event of death, resignation or incapacity of President or Vice President.

Section 109 provides that if a President dies, the First Vice President assumes office until the expiry of the former President’s term.  The second Vice President becomes the first Vice President and the President must then appoint a second Vice President.

The new Section seeks to repeal this provision and replace it with one that provides that in the event of death, resignation or incapacity of President or Vice President, the Vice President who was last nominated to act assumes office of the President until the vacancy is filled by a nominee of the political party which the President represented when he or she stood for election.  In the event of death or resignation or removal from office, a president who was an independent candidate, the Vice President who was last nominated to assume office assumes office.

As you can see Madam Speaker, all these six clauses are speaking to one issue in order for us to clean up the Constitution and ensure that we remove issues of running mates. It would appear as if we have amended several sections of the Constitution but speaking to one point.  I want to Hon. Members to be guided accordingly not to be swayed by those that said there are 27 amendments.  It is simply one amendment that comes with consequential amendments to some of the sections that speak to the appointment, resignation, incapacity and removal from office and once we remove this, we need to accordingly deal with those issues.

The other proposals relate to the promotion of sitting judges by the President on the recommendation of JSC as well as their extension of service.  We have noticed that within the current context of the Constitution, the JSC is the supervisor of judges. In other words, they have to appraise the judges on a yearly basis or as and when they see fit.  We believe that the same JSC cannot then go in public and start to interrogate issues that they were supposed to have interrogated on a yearly basis and then try to embarrass the would be judges who will remain in the high court if they are not promoted to the superior court hence the amendment seeks to cure this anomaly whereby sitting judges are subjected to an interview process.  We are saying the JSC, because of their knowledge of the performance of judges – their competencies; they can then recommend to the President those judges that can be promoted to superior courts.

Section 328 provides for the procedure for amendment of the Constitution of Zimbabwe.  The Constitution of Zimbabwe Amendment Number 2 seeks to amend 27 provisions of the Constitution and these also include other consequential amendments that arise because of amendment of other provisions.  We are trying to cure some of the conflicting provisions that are inherent in the Constitution in the present structure.  We agree that this was a very good document and a lot of work was done to come up with this Constitution, but there are certain omissions that we felt must be cured.  For instance, we believe that we should simply refer to the Civil Service Commission as Public Service Commission and that is a minor amendment that we are doing.

We also seek to amend provisions to extend the life of the proportional representation in terms of the women’s quota.  We believe that the two terms that have we had this provision – women have not been empowered sufficiently for them to stand on their own on an equal footing with their male counterparts.  The provision seeks to extend it so that we can ensure that we also capacitate women and buy the end of the two terms, we review to see whether our women are now in a position to compete on an equal footing. We are also saying that women are encouraged to participate in the 210 constituencies that are available on an equal footing with men.  I am very happy that we have several women here who participated and won.  That is very much applauded.

In the current Constitution, there was no provision that speaks to youth representation.  As a start, we decided that we should have ten youths representing youths in the august House on a proportional representation.

The Constitution speaks of the office of the Permanent Secretary but the office of the Chief Secretary was omitted.  We decided that this is an issue that we need to tidy up and include the office of the Chief Secretary within the Constitution.

There are also calls that there is need to ensure that we have a stand-alone office that deals with administrative complaints, hence the need to remove the Public Protector’s office from the Zimbabwe Human Rights Commission and in this constitutional amendment, we cater for that provision.

What has also been contentious is the office of the Prosecutor General where we feel that there is no need for the Prosecutor General to be subjected to an interview process by the JSC. The JSC is an independent arm of Government separate from the Executive and Parliament. We believe the prosecutor prosecutes on behalf of the state and the President must be given the powers to appoint the Prosecutor General on the advice of the JSC.

The amendments in Clauses 20, 21, 22 and 25 seek to alter and align membership of Metropolitan and Provincial Councils in Chapter 14. Again you will notice that we have four clauses that are speaking to the issue of metropolitan and provincial councils.  In essence, the amendments to the Constitution that we are doing are less than four out of the 27 because the others are consequential amendments that will arise through the need to clean up the Constitution once you say you have removed the running mate, once you say you now want to clean up the metropolitan council issue then the other amendments become consequential.

         What has happened Madam Speaker is, if you go into the Constitution,  it speaks about provincial councillors but when you go to metropolitan councils there is no reference to metropolitan councilors.  You only get reference to metropolitan council when they are now talking about constituting committees of a metropolitan council.  So you will realise that they will refer to something that was not there in the first place.  What we are trying to do is to clean up and say, in the rural provinces there is an election of provincial councilors via a proportional representation and these will constitute the committees that are more or less similar to our Portfolio Committees in this august House.

         Metropolitan councils – their election was omitted but later on, it speaks about the need to constitute these committees using the metropolitan councilors.  Hence we have decided that, why are we worried about separating metropolitan councils and provincial councils?  Why not call all of them provincial councilors because we have 10 provinces and we have metropolitan provincial councilors even in Harare that will then constitute the committees equivalent to our Portfolio Committees here in the august House.  This is what this amendment is trying to amend and cure so that we do not have that hanging clause in the Constitution.

We then go further and say, why do we have to speak about the Mayor of Harare or Bulawayo being the chairman of the metropolitan council?  Let us allow the provincial councilors to elect the chairperson just like what happens in rural provinces.  We have the Mayor of Gweru but a provincial chairperson is appointed.  We have the Mayor of Mutare, Mayor of Chinhoyi – why must the Mayor of Harare be the chairman of council?  So we are saying that the other amendment is speaking to that to say, let us remove this reference to the Mayor of Bulawayo or Harare and say that the councilors appoint just like what happens in rural provinces.  So, this is what we are trying to clean up and ensure that our Constitution reads well.

The other amendment Madam Speaker Ma’am, I think I will drop it because I want to thank Hon. Members who have dealt with the issue of the census and we wanted to decouple but felt that let us just amend the Census Act.

The other amendment whereby we wanted to amend and remove reference to foreign organisations, I think we will amend it so that it speaks to what Section 300 of the Constitution says and we will drop that.  These are the amendments that we are proposing.

Madam Speaker, the Constitution also speaks about its own amendment and the very same Constitution does not give a timeline of when you can do that.  I want Hon. Members, in your debate to appreciate that while people may say, ‘align’, if we pick something that is an anomaly in the Constitution like what we did with provincial and metropolitan councils,  we cannot wait because in the minds of a certain section of our society it is too early.  The Constitution gives that provision and that is exactly what we are following.

Madam Speaker, I urge the Hon. Members to pass the Bill and I move that the Bill be now read a second time.  I thank you. – [HON. MEMBERS: Hear, hear.] –

        HON. MATARANYIKA:

INTRODUCTION

          The Constitution of Zimbabwe Amendment (No. 2) Bill [H.B. 23, 2019] was gazetted on the 17th January 20201. Section 328 of the Constitution of Zimbabwe provides that: “(3) A Constitutional Bill may not be presented in the Senate or National Assembly in terms of section 131 unless the Speaker has given at least ninety days’ notice in The Gazette of the precise terms of the Bill. (4) Immediately after the Speaker has given notice of a Constitutional Bill in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so.” In compliance with this constitutional provision, and as part of public consultations meant to enhance participatory democracy, the Portfolio Committee on Justice, Legal and Parliamentary Affairs conducted nationwide public hearings on the Bill. The consultations were held from 14 – 19 June, 2020.

         METHODOLOGY

In order to gather views from the public, the Committee conducted physical public hearings in all the ten provinces, virtual public hearings using the Zoom platform and Live Radio programmes.

          SPECIFIC SUBMISSIONS ON THE PROPOSED AMENDMENTS

          Clauses 2 –8

          The proposed amendments seek to remove the running-mate concept of the Vice-Presidency. Instead, the two Vice-Presidents will be appointed by the President and serve at the President’s pleasure. In terms of the current constitutional framework, with effect from 2023, every candidate who seeks to be elected as President must nominate two persons to stand for an election jointly with him or her and designate one of those persons as his or her candidate for first Vice-President and the other as his or her second Vice-President. In this way, the President and his or her Vice-Presidents will be jointly elected.

         The majority of the submissions received pointed towards a desire to maintain the system of running mates. People were of the firm and considered view that the running mates system that the proposed amendments seek to avoid creates certainty in Presidential succession and is desirable to avoid the possibility of a power vacuum or instances of political instability in circumstances where the President leaves office before expiry of his/her term. Other submissions opined that, it promotes democracy as a succeeding President will be deriving their authority from the electorate.

          Yet other sentiments, in the minority, noted that the running mates’ system has a danger of creating multiple centres of power since the Vice Presidents can claim a popular mandate from the people as their source of authority. This is different from a situation where the President is the appointing authority. It was submitted that the President’s authority might be challenged by the deputies. They voiced their concern that the system creates incentives for the Vice President(s) to displace the President since they will be automatically assured of taking over by virtue of the succession provisions.

         Clause 9

         This clause adopts the transitional provisions of succession to the office of the President and seeks to make them permanent. These are provided in terms of paragraph 14 of the Sixth Schedule to the Constitution (given that the proposed amendment seeks to dispense with the position whereby Vice-Presidents are elected at the same time with the President).

         While some of the public welcomed the amendment, some were of the view that the adoption of paragraph 14 of the Sixth Schedule of the Constitution creates uncertainty in succession to the office of the President. They submitted that there is no need to change the current constitutional framework which provides for certainty to a higher degree.

          Clause 10

          This clause seeks to give the President power to appoint up to 7 (instead of the current 5) additional Ministers from outside Parliament. The current constitutional framework provides that Ministers and Deputy Ministers are appointed from the legislative arm, with an exception of a maximum of five that may be chosen for their professional skills and competence and thus chosen from outside Parliament.

         Some were of the view that the status quo is adequate as far as the appointment of Ministers and Deputy Ministers is concerned. They opined that increase of the number of Ministers from five to seven appears to be only cosmetic and not driven by an inclination towards improving governance in Zimbabwe.

  1. Other contrary sentiments noted that this would be a welcome development; some duties and functions require expertise which may not be in Parliament. An isolated submission pointed out that the overlapping nature of Cabinet and Parliament should be severed to an extent that no Member of Parliament must be appointed as Minister. Appointing Ministers from Parliament is likely to inhibit the impartial oversight function of Parliament.
  2. Clause 11
  3. This clause seeks to extend the provision for the party-list women members of the National Assembly by another two extra Parliaments (from 2 to 4 Parliaments) and makes provision for the addition of a party-list representation of ten youths in the National Assembly.

         The majority of members of the public felt that there is need to implement Sections 17, 56 and 80 of the Constitution of Zimbabwe2. It was further argued that the proportional representation system had served to disadvantage women; the women have no constituencies. Other submissions noted that there should be 105 constituencies reserved for women where they compete against themselves.

  1. A suggestion was proffered for ZEC, through subsidiary legislation, to introduce provisions to compel political parties to ensure that women be given equal opportunities to participate in electoral processes. It was also noted that the disability quota should be included in this legislation.

Section 17 – The State must promote the full participation of women in all spheres of the Zimbabwean society on the basis of equality with men.

Section 56 (2) – Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.

Section 80 – Every woman has full and equal dignity of the person with men and this includes equal opportunities in political, economic and social activities.

       Some members of the public viewed this as a correction of the Constitution, having identified that the period given in the original document is insufficient. Such an extension was presented as a positive step to promote women’s representation in Parliament.

  1. Some proponents for the youth quota submitted that, while it was a welcome development, the number of youths should be increased to an average of 8 youths per province. This submission was informed by the fact that the majority of people are youths. Those against the youth quota noted that this system disempowers the youth; the youth should be voted for into Parliament.
  2. It was also submitted that other alternatives to facilitate youth participation in politics can be done by ensuring that party lists on a national level include a significant number of youths. Therefore, the inclusion of youths could easily be achieved by requiring political parties to reserve a certain number of seats for youths.
  3. Some respondents submitted that war veterans should also be given a quota. A related submission also called for a quota for war collaborators.
  4. Clause 12
  5. This clause de-couples ZEC’s delimitation function from the population census held every 10 years. The current constitutional framework provides for delimitation of electoral boundaries once every ten years on a date or within a period that falls soon after population census. The proposed amendment seeks to delink the delimitation of electoral boundaries from the population census process.

         Some members of the public recognised the need for a new delimitation exercise as current electoral boundaries are arguably no longer representative of the population. However, to some, the solution does not lie in de-linking the exercise from the population census. They were of the view that the process of ensuring that the timing of the census is conducted in good time for the information and data to be used for delimitation purposes can be achieved through other legislative reforms that is amending section 12 of the Census and Statistics Act [Chapter 10:29] to align it with section 161 of the Constitution.

  1. The Chief’s Council submitted that as custodians of traditional boundaries, they must be part of the delimitation exercise.
  2. Clause 13
  3. This clause will allow the President, acting on the recommendation of the Judicial Service Commission, to appoint sitting Judges of the High Court and the Supreme Court to vacancies in the higher courts, without subjecting them to the public interview procedure.

         Some members of the public were of the opinion that the manner of appointment of Judges is central to the values of democracy, the idea of separation of powers, checks and balances in a democracy and an efficient and independent judiciary to sustain the separation of powers. They submitted that the proposed amendment to promote Judges of the High Court and the Supreme Court to a higher court by the President without subjecting them to public interviews as provided by the current constitutional framework could undermine the independence of the Judiciary. It was submitted that promotion of the Judges of the High Court and the Supreme Court in procedures not open to public scrutiny could reverse the gains that were made by the current constitutional framework.

  1. Some argued that movement of Judges from one court to the other through appointment allows for expert Judges to be appointed. These Judges are already in office and are assessed by the Head of Court, the Chief Justice and the Judicial Service Commission who already know the best performers who are excelling and deserving of promotion. There is a pool of very good Judges but because they do not want to undergo public interviews, they opt to remain in their Courts thus this provision was a welcome development as it caters for that crop of Judges.
  2. Clause 14
  3. This clause seeks to allow Judges of the Constitutional Court and Supreme Court to extend their tenure after reaching the age of seventy, annually, for up to five years, subject to a favourable medical report as to the mental and physical fitness of the Judge to continue in office. In addition, the extension of such tenure is on a yearly basis, and subject to acceptance by the President.

         Some members of the public welcomed the proposed amendment on the basis that having the terms of office set in the Constitution or other legislation creates security of tenure for the Judiciary. It was submitted that it lessens the risks to judicial officers when holding influential individuals and Government bodies to account and insulates Judges from external pressure. Members of the JSC were of the view that instead of reviewing annually, the renewal should be a once off five years.

  1. Some were of the view that the proposed amendment should be rejected on the basis that, although the President extends the term of office after consultation with the JSC, the President does not appear to be bound by the recommendations of the JSC and this may lead to the corrosion of judicial independence. It was also submitted that Zimbabwe has a large and vibrant legal profession, with many young Lawyers who are fit and willing to serve as judges. Increasing the age of retirement, on a yearly basis from seventy to seventy-five, would deny young lawyers the opportunity to serve as judges. One participant stated that the fact that the judges are to be subjected to a rigorous medical examination, when they seek an extension, after every year shows that there is no longer trust in the physical and mental capacity of the judge in question so why not allow the judge to rest after all. It was further noted that there is no need to further increase the age of retirement bearing in mind that the general age of retirement is 65.
  2. Clause 15
  3. This clause seeks to change the title “Civil Service” to “Public Service” and provides that the new “Public Service” is to implement the policies of the Executive and deliver public services.

Members of the public who made submissions on this clause argued that apart from changing of words, the proposed amendment adds nothing new. This is because, under the current constitutional framework, the Civil Service implements the policies of the Executive and is expected to deliver public services.

  1. Submissions received from the public were against the amendment of Section 199. The public noted that rather than changing the name, there is need to initiate and implement Civil Service reforms that will ameliorate the working conditions of the civil servants.
  2. Clause 16
  3. This clause provides for the appointment and role of the Chief Secretary to the Office of the President and Cabinet (Chief Secretary) and his or her deputies. Permanent Secretaries of Ministries will report to the Chief Secretary on any matter affecting them as a class.

         Some members of the public were of the opinion that this clause may need further engagement. From an administrative perspective, its role in execution is not clear hence can be a source of conflict with the Chairman of the Public Service Commission.

  1. Clauses 17 and 18
  2. These clauses create the Office of the Public Protector, who will take over certain functions concerning public maladministration. The Office of the Public Protector is not a new phenomenon in Zimbabwe. It was in existence prior to the 2013 Constitution as the Office of the Ombudsman and then it was renamed to Office of the Public Protector. Its mandate was derived from the Public Protector Act [Chapter 10:18] which was later repealed. During its existence, members of the public could approach the body with complaints of maladministration in public institutions for investigation.

         Some members of the public welcomed the creation of the Office of the Public Protector as it is important in dealing with issues of cases of administrative injustice.  However, they were concerned with the limit in scope of issues the new office will investigate as it will be restricted to those concerned with any Ministry or department, or any member of such Ministry or department; and such other persons or authorities as may be prescribed by or under an Act of Parliament.

  1. Some were against the amendment as it allows the Public Protector to encroach on the competency of the Zimbabwe Human Rights Commission and amounts to a duplication of roles between the two independent institutions. Their recommendation was not to create the office at this juncture, given limited resources but to strengthen the already existing Chapter 12 Independent Commissions.
  2. Clause 19
  3. This clause seeks to provide for the appointment of the Prosecutor-General by the President on the advice of the Judicial Service Commission and it seeks to remove the requirement of a public interview procedure. It also makes provision for his or her removal, replacing the current framework where the removal of the Prosecutor- General from office is similar to that of the removal of a judge.

         Some members of the public welcomed the provision, however others were of the view that the current appointment process promotes accountability and transparency. The process ensures that there is scrutiny, and increases public confidence in the office of the Prosecutor-General who is appointed based on merit. Removal of the public process as contemplated by the amendment was viewed as a threat to Prosecutorial Independence.

  1. Clauses 20, 21, 22 and 25
  2. These clauses seek to remove Members of Parliament from the membership of provincial councils, merge the provisions relating to provincial and metropolitan councils by removing the special provisions relating to the metropolitan councils (they will no longer be chaired by mayors, but be elected in terms of section 272 like provincial councils), and provide for the election of 10 of the members of Metropolitan Councils by a system of party-list proportional representation.

         Some members of the public welcomed the provision as it appears to be positively bringing devolution into effect. It was submitted that if used well, provincial councils can be good space for grooming future MPs.  It might be a good opportunity to have preferential seats for women, youths and the disabled at this level. The minority of the submissions held a contrary opinion, noting that the removal of Members of Parliament from the provincial council would divorce local development from national development. The MP is the conduit between the local and national development agenda.

  1. The Chief’s Council expressed concern over the removal of Chiefs (by virtue of being Members of Parliament) from Provincial Councils. They argued that Chiefs are an integral part of local development and hence should not be excluded from the Provincial Councils. They proposed that all Chiefs that are not Senators become members of Provincial Councils.
  2. Clause 23
  3. This clause proposes to remove the term “foreign organisations or entities” and replace it with “international organisations” in section 327(3) (a). Currently, an agreement which is not a treaty but which has been concluded or executed by the President or under the President’s authority with one or more “foreign organisations  or entities” and imposes fiscal obligations on Zimbabwe is not binding, until approved by Parliament. The proposed amendment seeks to limit the scope of the application of this provision to “international organisations” only.

         Some members of the public submitted that the removal of the term ‘foreign organisations or entities’ from section 327 of the Constitution seeks to limit the types of agreements or treaties that must be approved by Parliament to become part of Zimbabwean law. The role of Parliament is to play an oversight role over Executive functions and removing agreements with foreign organisations or entities beyond the scrutiny of Parliament, defeats the principle of separation of powers, public accountability and good governance.

  1. Those who were in support of the amendment argued that by voting the President into power, the public would have shown trust in him and hence should allow him/her to borrow whenever deemed necessary. They argued that in certain circumstances subjecting agreements to Parliament may cause unnecessary bureaucratic delays.
  2. COMMITTEE OBSERVATIONS & RECOMMENDATIONS
  3. The major issue that the public expressed was the need to urgently align laws and full implementation of the Constitution rather than rush to amend the Constitution. The Committee urges the Executive to prioritise the realignment of laws to the Constitution and its full implementation.
  4. On the running mates debate, the Committee noted that the majority of the people were of the view that we should retain the running mate clause and do away with a system of appointment of Vice Presidents by the President. However, the Committee observed that there were members of Civic Society Organizations who were moving from venue to venue replaying the same points and advancing the same arguments, thereby making it difficult to conclude whether these were general views or influenced views. It was also apparent that the general public was not adequately conscientised on the contents of the Bill.
  5. There was a divided opinion on the proposed amendments on the devolution provisions. The Committee recommends that the Executive should be clear on the roles and functions of the Provincial Councils and the role of Councillors. This should enable the Committee to make an informed recommendation on the matter.
  6. While extending the women’s quota in Parliament is a progressive idea, it perpetuates a pretence of promoting women’s participation in politics when the Government should be implementing the principle of 50/50 (equal) representation as required by the Constitution. The Committee recommends continuation with the quota system for another ten years. Meanwhile, Government must take robust measures to ensure that the Constitutional provisions of 50-50 are implemented. The party-list names for proportional representation must accommodate both young and old in a zebra system way.
  7. Regarding the issue of appointment of Prosecutor General, the Committee recommends that he/she should go through public interviews.
  8. On the promotion of Judges by the President, the Committee recommends that their promotion may be done without public interviews but must be on the advice of the JSC.
  9. Section 186 of the current Constitution imposes a mandatory age of retirement for Constitutional Court and Supreme Court Judges at 70. In other jurisdictions, the retirement age of Constitutional Court Judges has also been set at 70 years. This is the case in South Africa, which also provides for the possible extension of the term of office based on an Act of Parliament. Having the terms of office set in the Constitution or other legislation creates security of tenure for the judiciary. It lessens the risks to judicial officers when holding influential individuals and Government bodies to account and insulates Judges from external pressure.
  10. On the issue of de-linking census from delimitation exercise, the Committee recommends withdrawal of the Clause since the issue has already been addressed by amendments to the Census Act.
  11. The office of the Chief Secretary exists de facto and not de jure. Its role in execution is not clear hence can be a source of conflict with the Chairman of the Public Service Commission. From an administrative perspective, there is need to have clarity of roles.  This area may require further engagement.
  12. The provision that creates the Office of the Public Protector also empowers the Public Protector to carry out certain functions currently carried out by the Zimbabwe Human Rights Commission (ZHRC), including investigating conduct relating to the violation of human rights and freedoms set out in the Constitution. The Committee does not recommend the creation of the Office of the Public Protector but instead urges the State to strengthen the already existing Chapter 12 Independent Commissions.
  13. On international conventions, treaties and agreements the current provisions require Parliament approval when the Executive concludes or execute agreements that imposes fiscal obligations on Zimbabwe before the agreement becomes law. Clause 23 of the proposed amendments appears to put beyond parliamentary scrutiny, financing agreements or loans between Zimbabwe and foreign credit banks or other financial entities. The adverse effect of this move is that Zimbabwe would potentially be saddled by a foreign debt that would require repayment from the Consolidated Revenue Fund which payment would still require Parliament approval anyway. The Committee recommends that there is need to maintain and strengthen the system of checks and balances and thus all agreements that impose fiscal obligations on the State must get Parliament approval as a way of enhancing accountability.

         CONCLUSION

The Committee noted with concern that the majority of the people who attended the public hearings, including those who contributed in writing, did not comprehend the jurisprudence behind the doctrine of separation of powers, independence of the Judiciary and attendant issues. It is therefore the Committee’s submission that in order to enhance the quality of contributions, there must be a concerted effort by relevant stakeholders to sensitise the public on the content and import of Bills before embarking on public hearings. The public awareness is also likely to counter the manipulation of members of the public by sponsored groups who always rush ahead of the hearings. It is, however, the Committee’s general conclusion that, except for areas highlighted in the recommendations as requiring a re-look, the amendments be adopted as presented.

*HON. KARENYI:  Thank you Madam Speaker.  I would like to take this opportunity to support the presentation that was made.  May I go to Clause 11 because I would like to leave this House very soon to go on Parliament business?

Madam Speaker Ma’am, I have realised that the women’s quota system is not being addressed properly because we want an extension of another 10 years for the proportional representation.  My view as a woman is, looking at what other women are saying, it shows that if we increase years for proportional representation, that is not what many women want.  I am glad the many women in this Committee also presented.  All the people who went out for the hearing did not hear about women.  Many women would say they want a 50/50 in many constituencies.

I support the presentation by that Committee.  Women should be given an opportunity in those 210 seats.  The advantage of those 210 seats is that it will help our country to save money that will not have another burden on the fiscas.  What it means is we will only take 105 seats to be reserved for women and105 would then be reserved for men.  So, there will not be anything wrong with that because we will be sharing the country’s cake equitably because that is also there in the Constitution that men and women have equal opportunities, be it in commissions, local authorities and everywhere you can think of.

May I say Madam Speaker, the issue of proportional representation - if we increase that for another 10 years, what are we going to do after those 10 years?  Are we going to be amending the Constitution every time?  Why should they be extending every time or making amendments?  Let us as Government reserve a quota for women.  There are many people who do not understand what I am talking about in terms of 50/50.  The 50% that we are requesting as women is not that we want it for free.  We are saying with all those seats there will be competition and people will contest, but it will be reserved for women from any political party.

Why we are saying that is because the Constitution allows and admits that we have equal opportunities.  What it means is at law we are all at par.  The male MPs who are here, I want them to understand.  What I am saying is if we reserve those 50 or 60 seats, we will be saving Government money.  Instead of increasing the burden, why do we not just apply the Constitution of this country as it is?  Instead of increasing seats let us just share these seats equitably.

The other thing that I do not agree with on proportional representation is that firstly, we are not showing talent because of proportional representation.  Parties only present those PR Members of Parliament and it is going to create a lot of hatred between those in the parties.  So what is happening is if we have six seats in any province, the six seats are reserved for the winning party in that constituency.  You go to Manicaland, you go to MDC and you check what happened at the MDC-Alliance.  Only six people were supposed to be nominated out of over a thousand, so what happened is women had to fight each other.  Instead of fighting for 105 seats, you end up contesting for just six seats.

The second thing is - Minister of Justice, Legal and Parliamentary Affairs, what do you think about women who end up attacking each other.  If you look at the presentation made by Women in Politics Support Unit (WIPSU), they released statistics from their survey.  They said what they discovered with regards to proportional representation is it involves sexual harassment.  Whether men like it or not, it was released in that document.  It says favouratism dominates in that party and nepotism - how close are you to the Chief Elections Officer or someone within the party.  You end up fighting for a very small seat.  So all I would like to say is proportional representation in our party and other parties that I have seen is not giving any benefits but instead is breeding hatred.  So I support that Committee that is saying let us go to 50/50.  What it means is as a country, we will save money.

Thirdly, as women, we may rejoice to get proportional representation seats but I ask myself who is supposed to benefit from those 60 seats.  In my own survey, looking at my own party and other parties, some of the people who are benefiting are those in high political offices within the parties.  What about those occupying fewer seats?  When are they going to join Parliament through this?  Look at what has been happening since 2013 when we started this thing.  Those who joined Parliament in 2013 using this seat, in 2018 they said they should come back.  If we go to elections in 2023 and 2028 they are going to return to Parliament.

So, where is the affirmative action?  Madam Speaker, the 60 seats are benefitting very few people and these people will remain in those seats until they die.  Madam Speaker, the issue of 60 seats - like it or not, looking at any woman in this country, if we are to depend on party lists, how are people going to break through into those seats if they will not be favoured by their parties?

         Madam Speaker, if people want us to agree that we extend the lifespan of the 60 seats and reject the 50:50 representation, what it means is, those who want 60 seats where you are teased by people as Bacossi people feel that you get those seats freely.  Why can we not earn the seats so that it depends on your capabilities?  I do not want freebies; I want things that I work for.  You will earn respect if you go to a constituency and work well.  Right now, if I am to go to another constituency, the sitting MP there will think I am trying to compete with him or her.  To eliminate that conflict, give us 50% that we contest for.  If we come up as ten candidates, people will choose their favourite.

         Madam Speaker, I would like to say to the Hon. Minister, we may not get it our way because the majority will determine since I belong to the minority.  When we made this Constitution, the idea was to promote women so that they develop.  Therefore, if you join Parliament through proportional representation, let us cap it to a maximum of two terms so that others may also benefit – [HON. MEMBERS:  Hear, hear.] -  My request Hon. Minister is, if you do not want to get rid of proportional representation, let us put a cap of two terms so that others may also get an opportunity to be empowered.  After those two terms, you would have earned money to go and contest for a seat.

         Madam Speaker, this is my view.  As women, let us be honest to each other.  We cannot talk about affirmative action whilst we want to stick to those seats.  Let us talk about affirmative action and also give others an opportunity.  Someone has been sticking around in those seats for four or five terms.  The PR seat should be reserved just for two terms and after those two terms, you go.  Madam Speaker, I am one of the beneficiaries of proportional representation and I am saying after those two terms, it is either I leave or I go and contest for a seat.  That is why I am debating in support of the 50:50 representation because I have a background to that.  We cannot give you freebies for life.  Let us put a limit to two terms of proportional representation Members of Parliament.  If you look at political parties that I know, for those struggling MPs, they leave their seats and go for PR seats. If they fail to do anything meaningful, they go to the Senate; moving around without doing anything meaningful.  I am one of those women who believe in mentoring other women.  So, let us agree that you cannot depend on freebies for life.  Let us put a maximum of two terms and you go home.

         Finally, I also heard something about the youths and I really support that issue.  The reason is, let us agree that we gave birth to children who are growing up and they have ideas that may be progressive to this country.  We should give them an opportunity to come to Parliament.  Madam Speaker, I think we should not keep on increasing people and burdening the economy. From those 60 seats that you are giving us as women quota, why can we not reserve a percentage to young women?  We are getting old, whether we like it or not.  Some feel that they are entitled because they are senior members of their political parties.  We need to give others an opportunity.  Hon. Minister, I am saying give us 50%; if you do not agree take my proposals.

         *HON. TOGAREPI:  I thank you Madam Speaker for giving me this opportunity to talk about the Constitution Amendment Bill, which is very important.  What I would like to say is, according to our Constitution, it is inherent in the Constitution that if there is any reason for us to change or amend the Constitution, we can amend it.  It is very important that if as Zimbabweans we feel that there is an amendment that should be made to the Constitution, let us do it.

         I also want to contribute to the debate on extending the lifespan of the proportional representation.

I agree that when women got that quota, I do not think many women benefited from that. Looking at our political parties, those who became Members of Parliament (MP) through proportional representation (PR) at that time are still the ones in those positions.  This shows that they did not develop enough to go and contest out there.

My view is that women should increase their numbers in Parliament but through a democratic process where they go and contest in elections.  Extending the lifespan of the quota system is important because it gives an opportunity.  I would also like to agree with the previous speaker who said that when a Member is elected through PR  the aim was to develop that person.  If that person ceases to be an MP through the quota system, they can stand and contest because they have acquired experience and knowledge and are able to stand in any constituency.

Young women should be given an opportunity in that quota system.  Women should show us that they indeed want 50-50.  They should demonstrate by making sure that those 60 seats are shared equally; 30 for young women and 30 for older women.

I would like to agree with the observation of the report of the Committee.  The youth should be given an opportunity because we will be training them so that they may be like their political leaders.  The youths that we would have given an opportunity through PR will learn and acquire experience about Parliament so that they also encourage others who are outside Parliament to join Parliament.

Some women are advocating for 105 seats – they have been given those 60 seats; they may also freely contest in the other seats, let them take advantage of that.  If they gain experience from PR, we may end up having more women in Parliament through that way.

I would like to concur with the observation on running mates. To me, the running mates clause creates a lot of power struggles. If I am voted as Vice President, what stops me from obeying the President who appointed me and has been elected by the majority –[HON. SIKHALA:  Inaudible interjection.] – I need your protection because these are some of the people who benefit from the Americans.  This Hon. Member is the one I saw with the Americans in Chitungwiza.  My view is that it is important.  We must vote for the President because all the development that comes after the President’s term depends on the President.  That President must elect Ministers and Vice Presidents because these people should know that his success and theirs depends on him.  At the end of the day, he is accountable for the failures and success of that Government.  That running mate clause should be changed.  The President should be elected by the people and the President must choose his deputies.  I thank you.

*HON. ZEMURA:  Thank you Hon Speaker for giving me the opportunity to debate on this Bill.  I want to support what the Committee on Justice said.  Our Constitution is talking about equal opportunities.  Our Constitution was written very well using equal opportunities.  If there are equal opportunities in terms of seats – 105 should be for women and 105 for men.  If we talk against the Constitution, it means we are pursuing our own needs which are against that Constitution.  Let us respect the Constitution.  If we follow our Constitution, we will not run into problems.

The Constitution is very clear.  Women can battle on their own and succeed.  There will be one woman who wins if they contest on their own.  Let us respect our Constitution and let us use it in a non partisan manner.  I thank you.

HON. B. DUBE:  Thank you Hon. Speaker.  I would like to thank the Minister of Justice for the two concessions that were made.  I think it is honourable and noble for the Executive to also acknowledge certain things as they arise.  We applaud the Minister for these and going forward, we continue to concede on issues that are common cause.

I will quickly go on to deal with the first issue which relates to the running mate clause or the election of a Vice President together with the President.  There is a motive or justification for having this provision in the Constitution as at 2013 and one of the reason was to be sure and certain on the future leadership of the country taking into account the risk or possibility of risk that may arise from one centre of power which may not be properly checked.  We have an experience already as a country in 2017, whereby an Executive President who had appointed Vice Presidents at some point thought or realised that he had done so bad and felt someone else amongst his lieutenants was getting more support and they fired that person.  The firing was not even logical but it followed what we want to go to now.  Where we are saying a Vice President serves at the mercy of the appointing authority who is the President.  We already have an experience and if we are a nation that does not want to learn, then it is unfortunate because we already experienced what this thing can do.

         I think that those who were alive to what was happening around 2017, we risked having someone’s wife as a President by virtue of having a powerful person there with the powers to decide who they want.  Some other Vice Presidents were already pleading that they were lonely and wanted a quick appointment of their mother to assist them to do the job.  So, is this where we want to be?  When we are making these amendments, I urge this Parliament to not consider the individual who is there because you may have an individual who may be rational and reasonable and may never wish to have possibly their wife or son as President to succeed them.  It may be unfortunate that at some stage, this nation may have an unreasonable one like what we almost had in 2017 and we risk having something that we never want to see – having a person who can act as President when that person does not meet even the minimum requirements of being a leader.  So, it is my submission that it is not the smartest thing to do.  Inasmuch as we want one centre of power, we are not safe.  Let us not look at the individual, possibly the individual we have – you may trust him, if you do, you may trust him that no, he may not do this but there is no guarantee that in his absence, any other person may come and not embarrass this nation by telling you the following day that they are resigning.  The processes may end up having a clumsy process of having an appointment of a President.

         Why do we need a Vice President who is directly elected?  It is also that when they are performing their duty, they are not performing their duty in order to please a certain boss but to please the whole nation.  As soon as you become a Vice President, you are now a public official and your duty and obligation is to the whole nation.  So we do not want a person who lives every day to check on whether the boss is very happy.  We want a Vice President who may be able to tell their boss that this is not right.  So the only person who can do so is a person who has direct mandate from the citizenry.  I will not over-emphasise on this but I submit that the smartest thing to do is to make sure that any other person who assumes public office has a direct mandate because we do not have guarantees that we will have reasonable Presidents who may be smart and avoid doing the things that we may not expect because politicians have a tendency of shocking you by doing the unexpected.

         I will quickly go on to deal with the issue relating to the composition of the House and the issues of Proportional Representation (PR). I think I will leave that one for other Hon. Members to debate on because I realised that there is serious interest from the other gender.  I am sure that it would be fair to give them a chance to say out certain things because they are the most affected.  At times it is smarter to allow the most affected people to tell us and we listen to their perspective because they may know better.  So, I will leave that.

         I will quickly run to deal with issues relating to the appointment or promotion of Judges.  I would want this nation to be a nation that always records history of what happens.  When we started the issue of public interviews for the appointment and promotion of Judges – do we remember that some of the most senior Judges including supervisors of certain courts actually ran away from public interviews?  Those who were diligent to search realised that one of those most senior Judges had an outstanding 15 years judgment but that person is already in charge of our High Court but he had an outstanding judgment of 15 years if you did not know.  I think the person got wind because I think that the then Chief Justice Chidyausiku had already made some follow ups with him on why he had applied for the post whilst he still had letters for judgments that had not yet come.

         Do you realise how important that thing saved us this process of interviews because we would have had that person as a Supreme or  Constitutional Court Judge - a person who has no capacity to make a judgment in 15 years.  I understand the argument that says that the Judicial Services Commission (JSC) would monitor these people and some are saying they would have already been interviewed – that is not true.  Some of the judges whom we appointed in 2013 were appointed before the public interviews and the majority of them did not undergo this process.  Hence they may end up in the highest court without having even demonstrated their competence at once.

So, it is my submission that any other judge who wants to be appointed to the Supreme or Constitutional courts must demonstrate their willingness by submitting to the interviews.  If they are said to be embarrassed and do not want to be embarrassed, let them stay where they are.  To those who have been in industry and have worked, you would know that you always undergo an interview for the next job. If you were a lower grade employee and want to be promoted, then you would undergo promotion interviews.  Why should we interview people on the basis of assumptions?

Yes, I know people would say that the JSC would make recommendations or advice but we must remember that in one of the founding values of our Constitution, we have the principle of transparency.  What is advised by the JSC is something that is secretive.  It is given to the appointing authority and I believe it is flushing or going against the values and principles of transparency.   We just want to know you, if you want to be our Supreme or Constitutional Court Judge – be prepared for the embarrassment of an interview.  You either fail or pass and if you pass, congratulations and if you fail, tough luck.  So, it is my submission that there is no need for that.

Then there is the issue of extension of tenure for Supreme and Constitutional Court Judges on an annual basis for five years.  I did not get the rationale because the requirements for someone to be appointed as a judge are not very complicated.  Someone must have practiced as a lawyer or must have been a judge somewhere for a period of seven years and there is an age limit that is there.  Zimbabwe has so many of these people who are qualified and eligible to be judges.  Why should we labour ourselves by causing people not to relax?  We say thank you to the judges who would have worked so hard and when they get to 70 years old, we say good bye and new blood comes in.  There is no harm unless we are conceding that we did not educate so many people to qualify as judges of which I do not believe.  I think that currently we have more than a thousand of qualified and eligible people who can be appointed as judges.

The most dangerous part is that if the renewal is to happen annually, you are now singing for your master because possibly like I alluded before, we are assuming that we will always have a reasonable President and will always have a reasonable JSC that will make correct and proper recommendations.  Why should we live on these assumptions?  We live in a society where we are human beings with weaknesses including fundamental ones and some of the weaknesses include self interest.  So, I do not get the justification on why we should have a judge coming every year and towards the end of that year, they are already worried on whether they will still be a judge in the next year.

What will they do in order to please that other person who must then renew?  So if bad comes to the worst, my submission would be that, if we still think that there is need for that extension, then it must be a once off.  If the judge undergoes one extension interview, then that must be enough.  Embarrassing them by causing them to appear before you annually or to be assessed annually – you may end up with prejudices in the process.  What then happens when you come up with a judgment that your superior does not like and they are the person who is supposed to write your recommendation letter?

My submission is that, if we are to do it, then let it be once in those five years – if you are at 70 years old, we assess you but along the way, there is always a provision for disqualifying them, if they get too old and incapacitated, the Constitution already provides that they become ineligible to be a Judge if they are no longer sound.  So, we extend them for 5 years and we end there.  We do not talk to them again, I think that way we will be safer and smarter.

I will again go to the aspect of the public protector; relating to this, I will actually agree with the report in toto where it says that the most important thing to do is to strengthen the Human Rights Commission as opposed to coming up with another new institution which may conflict in terms of its operations. I insist that we capacitate our Zimbabwe Human Rights Commission and make it work to the best that it can as opposed to creating a new office.

Then quickly to the prosecutor general; the functions of the prosecutor general and their qualifications are such that this person must be a person who qualifies to be a Judge and who is the person who qualifies to be a Judge? It is a person with the age requirement, the academic requirements as well as a person who is able to pass an interview.  So a Judge in Zimbabwe is a person who is capable of passing an interview.  So, this person must also pass an interview. Why do we need people to pass interviews - so that we are guaranteed generally on the competences of the person?  I know there are many people who may argue that the prosecutor general needs not be so much independent because they already indicate the Executive and staff.  My view is that they are a person who carries a serious obligation and they must be a person we trust and believe that they are competent.

         I think if we go even with what the Executive has been saying in the past weeks where there were complaints relating to a lot of corruption cases falling because prosecutors are not able to seriously prosecute complicated matters; it is one of the reasons - if we have people who are not competent or people who have not demonstrated their capacities, we suffer the risk of having people who will have many cases.  I think it is not right to have a person whose competency has not been demonstrated publicly to hold this serious office. Let those ones who do not want to come to public interviews leave our public offices.  They must just sit where they are and those that are willing to serve Zimbabwe must demonstrate their capacity by coming through public interviews which are also exciting by the way.

         It has been a pleasure for me to watch people undergoing public interviews.  I think for those who wanted to be prosecutor generals, many of the people that we always respected and thought they were clever in the legal fraternity exposed themselves that they were not able by failing to answer elementary legal issues that were asked.  So, I believe that we must stick to that and it will be safer for Zimbabwe. So I submit that there is no need to amend this provision and allow for a person who may pretend to be a prosecutor when they are incapable...

         THE HON. DEPUTY SPEAKER: Hon. Dube, you are left with 5 minutes.

         HON. B. DUBE: I thank you Madam Speaker.  I will end by submitting that although, I will leave other provision to other colleagues but I will say although the Constitution provides that it can be amended, we can only amend when we believe that it is just, fair, it is reasonable justifiable in a democratic society and it saves the best interest of the country as opposed to any other consideration.  So, I will not agree with a submission that says because the Constitution has provisions to amend, let us just amend.

         For now, let us keep what we have except where it is really necessary to make amendments but on certain issues, let us allow them to remain as they are except where it is really necessary and reasonably justifiable in a democratic society. I submit that the majority of the Clauses that I was going through the amendments so intended are not reasonably justifiable. There is no compelling reason really to have an amendment that says we want to put maybe an office of the Chief Secretary.  I believe that where he is, he is working well.  We cannot make a constitutional amendment for an individual because there is a certain individual who has worked for so long without a constitutional provision for him possibly because he is known to be a senior civil servant.  I believe that we can do away with these things.  I submit and I thank you for giving me this opportunity and I hope I made sense and it is my hope and belief that on many of the issues, we may agree because there is no need to go too far on these issues.  I thank you.

         +HON. M. MKANDLA: Thank you Madam Speaker, I would also like to air my views on Clause 11 which talks about proportional representation.  Our Zimbabwean Constitution explains clearly that there should be...

         THE HON. DEPUTY SPEAKER: Order Hon. Member.  I have an announcement to make.  Members of the Women Parliamentary Caucus attending workshop in Kadoma, the bus is leaving at 1600 hours.

         +HON. M. MLANDLA: Thank you Hon. Speaker. I would also like to add my voice on Clause 11 which talks about proportional representation.  I have indicated earlier on that the Zimbabwean Constitution allows both males and females to have equal rights. On the issue of proportional representation, it has been there for 10 years and it has been allowing women to also partake in parliamentary activities. We still have these women in Parliament up to today.   All I am saying is women should be given an opportunity to contribute in Parliament.  As women, we can campaign to get constituencies and we have been taking part in Parliamentary processes.  We came here under proportional representation without any favour.

         We have made sure that we work hard as women and make sure that we get that opportunity to take part in Parliament.  Nothing is impossible for women, we need to sit down and agree that each time there is a female candidate taking part; we must really support them fully so that this 50:50 is achieved. As women, we cannot fail to do things that we really want to do.  It is just like with Chieftainship, where I come from, women have opportunities to take part as chiefs but just because women are being looked down upon, they are not allowed to be chiefs.  Right now we also want to take part as women and make sure that we complain and get resources just like our male counterparts.  We would like to also make sure that we take part in making sure that we contribute a lot into our economy.  As women, please give us the opportunity, we know how to do these things and we have been successful.  Thank you Madam Speaker Ma’am.

         HON. MISIHAIRABWI-MUSHONGA:  Thank you very much Madam Speaker.  Let me join my Chairperson on the report that he presented to the House and to thank him very much for having represented what we found as we did the public hearings.

Let me start by speaking as an introductory part so that at least the House understands what we faced when we went out there and why it is important as we debate this particular amendment Bill to appreciate the sentiments that are out there.  Yes Madam Speaker I know that we had a lot of civic society organisations that had mobilised and we were working with people.  However, I think it is important to understand that it is in exactly the same spirit that COPAC did the hearings.  You will remember that during COPAC, those that had wanted some interesting issues to be included really did mobilise and it was okay.  So, I do not want to look at mobilisation in a negative manner, but only to say that it was important that we had the turnout, particularly during the Covid- 19 period in terms of the numbers that we found.

It is important that as we discuss these amendments, we appreciate that the public sentiments, even around those who were not necessarily mobilised was that they wanted Parliament to be seen to be representing the views that they bring in.  I say so perhaps to persuade and encourage the Minister as he begins to look at some of these amendments to be able to be politically sensitive so that we are not seen as people who are merely to play around with people without necessarily taking their views seriously.  Some of us who had the misfortune of being easily identified at those hearings were actually warned by people that we know that we are saying what we are saying but you go into that House and you say something completely different.  I want to thank the Chair because at least we lived true to our word.  We said exactly what the generality of the people said.

         The second issue that I want to raise concerns the amendments that are being proposed, perhaps more at a personal level because I was one of those that sat during the time of COPAC as part of the negotiators. I bring that conversation to this discussion because I think it is a bit unfair to look at the constitutional process without necessarily understanding the conversations that went with those negotiations at the time that we were negotiating around the constitutional process.  Let us be honest, this Constitution is also a result of negotiations.  So to pretend that there were no negotiations and no political conversations that took place is not being honest.

I will deal with the issue around the running mate.  Madam Speaker, when you look at it in a very simplistic way, the running mate provision looks okay.  However, I think it is important for us to be able to appreciate that even the discussions then around the running mate were discussions where political parties were not ready to deal with the running mate. Here I am not only talking about the ruling party, but I am also talking about the opposition.  The reason why the running mate then became part of a provision that was in the transitional provisions is an indication that political parties at that time were hesitant around the issue of running mate. Let us be honest, what was the hesitancy – it was that we know and we can speak about it for at least those major political parties that issues of succession are a problem.

Therefore, if we go with that provision without balancing how it creates more problems around issues of succession, we will not have dealt with the running mate provision in the manner that it is supposed to be dealt with.  In circumstances where our political parties and political culture are ridden with issues of factionalism, the running mate provision creates more problems.  It does not facilitate good succession because what you would have done with a running mate is that you are bringing the problems that are within political parties and placing them within a national discourse, which is unnecessary.

Madam Speaker,   I am saying so because I can confidently say that all political parties have issues with succession.  So let us not deal with the issues of succession and bring them at a national level.  For me, the provision that we may want to consider - I want the Minister to think around this.  If we remain with the status quo, how do we ensure that the status quo does not create a space again for political party issues to come into the succession issue?  As provided, we still have a situation in which we are allowing a political party to determine what the succession process is.

For example, we are saying the political party that has the President is the one that then has a right to replace.  If we have chaos in that political party, we will not know where to start.  Why do we not remain with the one person who runs as President but we deal with the succession scenario and there are other options that we can look at.  Why can we not allow Parliament, for example, to become the one that does the voting around the replacement?   Surely, it does not change much because whatever political party has the majority in the House will then be able to vote for a person who is being seconded, just like we do with Speakers.  We know that if the political party that has the majority would want to put a candidate for a Speaker, that Speaker is likely to come in.

The point that I am trying to underline is, let us avoid bringing the chaos that exists in political parties to a national level, because if we do not deal with it, we will have a problem.  I know that others were talking about the running mate as if it is a panacea, look at what happened in Malawi when Madam Joyce Banda moved away, she was a running mate – Mutharika then fired her.  What then happened is that you still had a Deputy President, but who could not be fired because constitutionally she also had been elected.  You can see what happened even when the senior Mutharika passed away, you understand the chaos that existed at that particular point in time.  I wish the Malawians well and I hope that President Chakwera right now as he goes in with the same system, is not going to struggle because as long as that provision is there, you are likely to have the same issues that are associated with issues of succession.  So my plea to the Minister as he looks at the issues of amendment is to begin to see what happens with the issues that are to do with succession.

The second issue that I wanted to speak to is that around the 50/50 issue that we are raising and I want to agree with my colleagues, particularly my female Members of Parliament that our basic position is that we would like is a 50/50.  However, I think the question that we have to grapple with is how do we facilitate for a 50/50, given the current constitutional provision that we have?  I do not know.  Perhaps we could look at the Electoral Act but I am not sure how we will be able to amend the Electoral Act without going to the Constitution and I am not sure that in terms of the legal process that we have right now, whether it is possible to begin to bring in a completely new provision around the composition of Parliament, but I think the position that we are putting here as female Members of Parliament is that 50/50 is the way to go. I understand that may be a problem. I want like a proper female who always negotiates everyday of my life as a woman, you are always negotiating.

         The second point is that if we proceed with this current provision, can we begin to change the way that provision is couched. For example, if you say we are going to have 60 women, the problem is that unless those 60 women – because they are coming on a pro rata – you nominate them post facto, what you do is you have an election first and they do not get nominated at that time, which is why you can then include in this amendment a provision that says within the 60 seats, a particular percentage will represent the young women. I agree with my colleague who spoke to the issues of ensuring that young people are included but it will not be possible for us to do that unless you allow for the election to take place and you then get the nominees coming in.

         I agree that process could be well articulated in the Electoral Act - but if we leave it as it, you will not have a chance of ensuring that you include the young people unless the Electoral Act is subsequently changed to be aligned with that provision. Again, for other classes like people with disability in that 60 and in that 10, what would make sense is to allow the election to take place and then ensure that there is a provision in the Electoral Act that then forces the political parties so to speak as they nominate people to come in. That provision that says we should have gender equality on the 10 will not work, even for the youth because as long as the election goes as it is, there is no way you are going to enforce the gender equality. It can only happen if you do it post facto.

You go to an election and then the political parties put in their names and it should not be a problem because, in fact when we put in those nominations, the people are not on the ballot anyway. So it is just a piece of paper that is lodged at the time of nomination. Perhaps people could look at how you can do it in terms of the Electoral Act. I am still trying to think how an amendment to ensure that the Electoral Act is then forced to be aligned to it.

         I agree with the issues around judges. My other colleagues have spoken around it. The public sentiment was amazing. People were very clear. We have young people that should be taking these positions. Why are you forcing us to continue with people that are at 75? I think it is something that we really need to think about. If we are going to be seen to be a progressive country, I think let us see how we also facilitate the coming in of young people. So, the extension to 75 is really problematic. It is something that we would like to persuade the House to relook what is going on around that issue.

         I struggle to understand why public interviews are a problem. When you look at it the President still has the right – whatever the public interviews have brought in, to nominate the person that he wants. It just gives some confidence to people to say we saw, we could make a decision, we could say this is not right and my personal view would be let us try and keep those public interviews.

         The issue around Chief Secretary, I do not even see why we want to bring the Chief Secretary to Public Service. Let learn and I am always saying this thing munhu ngaamhanye nembwa dzake ma comrades. When somebody comes in, allow that person space to be able to pick people that they want to work with. We know that the Chief Secretary works in the President’s Office. We know that the Chief Secretary basically is almost like an assistant who works in the Office of the President. I do not know why we want to drag this person into Civil Service and create problems. When a President comes into power he is unhappy with this particular Chief Secretary and he wants to change, now he has all these complications about negotiating with Public Service and things like that.

This is where I do admire the American system - the fact that when you come in, you come in with your people. When you leave, you go with your people. This thing of adopting other people’s children and wanting to make them yours, really never works. This is one thing that we just need to do.  I am not saying anything about the present – I am sorry. I am just indicating that we need to create enough space for an incumbent who is coming in to deal with the people that they need to deal with.

         The issue around the Public Protector and I see Hon. Mushayi is here. I have been quite disappointed because she moved a motion at the beginning of the session around Section 210 which, for all intents and purposes, when you read what the Public Protector is supposed to do can be effectively done by Section 210. If we factor in Section 210 and ensure that an independent mechanism that deals with issues around administrative justice, security sector we would have dealt with the need of creating another new body and another new office – that is the Public Protector. Some of those things that are still being done by the Human Rights Commission can continue. Surely,  if our issue is that we want something that looks like the old Ombudsman that deals with issues around the administration of justice or the way services around Government are given, let us just come and enact a law around Section 210 and create a structure that then can facilitate all these issues that we are talking about.

I really think these are the comments but I will not leave without saying that our disappointment is that we should have just allowed the whole electoral system to be debated and our reforms put into place, then come in with an omnibus constitutional amendment. As it is right now, given all these things that we are talking about, and given the need for electoral reforms, we are going to be standing here again with amendment number three to bring in some of the electoral reforms that are necessary. We are going to go back again to people and tinonotukwa people are angry out there. Things are not okay. We come back again with constitutional issues and people say magadzira chingwa here instead of coming here and saying this. Even your general people are very angry besides the civic society. It is unfortunate that we have had to do this but we would have hoped that when we do a constitutional amendment let us try and put everything that we need so that we are not seen to be continuously going back to this lovely document that we all voted for and agreed to.

THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS (HON ZIYAMBI): I want to give everyone an opportunity to debate whilst they are fresh. So I move that we adjourn the debate to next week where we can continue and exhaust everything that we have. I move that the debate do now adjourn.

Motion put and agreed to.

Debate to resume: Tuesday 14th July 2020.

On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the House adjourned at Twenty Six Minutes past Four o’clock p.m. until Tuesday, 14th July, 2020.

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