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SENATE HANSARD 27 APRIL 2021 VOL 30 NO 36
PARLIAMENT OF ZIMBABWE
Tuesday, 27th April, 2021
The Senate met at Half-past Two o’clock p.m.
(THE HON. PRESIDENT OF SENATE in the Chair)
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that Orders of the Day, Nos. 1 to 3 be stood over until Order of the Day, No. 4 has been disposed of.
Motion put and agreed to.
CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 2) BILL [H. B. 23A, 2019].
Fourth Order read: Second Reading: Constitution of Zimbabwe Amendment (No. 2) Bill, [H. B. 23A, 2019].
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam President Ma’am. Madam President, I rise to give my Second Reading Speech for the Constitution of Zimbabwe Amendment (No. 2) Bill, [H. B. 23A, 2019].
Madam President, Hon. Senators, the Bill before you is the fruit of a review conducted by my Ministry with all interested stakeholders on the operation to date of the Constitution. The Constitution, as you know, entered into force in 2013, and has been amended once before. In the course of the review, certain imperfections and areas for improvement came to light, which I now have the honour of seeking your assistance to put right by means of this Bill before you.
The provisions of the Bill are adequately explained in the Explanatory Memorandum. My purpose is simply to bring to your attention the most salient features of the Bill and to explain the purpose or policy behind them. In doing so, I will not follow the order of the Bill but rather, the order of their importance.
Starting with the Presidium, it is proposed to do away with the “running mate” provision of the Constitution, which compels the President to be elected on the same ticket with two Vice-Presidents, a first Vice-President and a second Vice-President. This is contrary to the practice of our SADC partners, where the President appoints the other members of the Presidium. The President ought to have the freedom to choose, at any time, the Vice President he is comfortable to work with. Clause 3, 4 and 5 provide accordingly.
Madam President, of most concern to the female Members of Parliament is the proposal to extend the provision for the indirect election of an additional 60 female Members of the National Assembly from the life of the first two parliaments after the effective date, (22 August, 2013) to the first four parliaments after that date, that is to say until 2033. By that date, we hope that women will be able to participate on an equal footing with men in politics without the assistance of this provision.
Equally pleasing to female Members of Parliament is the amendment to Section 277 of the Constitution that was adopted in the National Assembly with cross-party support. I am talking about the proposal to provide that one third of the membership of all local councils be composed of women on the basis of indirect election using a party list system.
Madam President, Hon. Senators, I am sure that Hon. Senators will agree that our Local Government will greatly benefit by the contribution of mothers, wives and working women in the deliberations of local councils, for it is at this level that women encounter many of the challenges they are faced with at home, such as the provision or lack of provision of proper housing, water provision, sanitation, waste collection, clinical care and other services. Let me Madam President briefly address at this point the objection that this amendment was introduced despite its not having been notified 30 days beforehand, which is the general requirement for constitutional amendment Bills. I do so in the knowledge that my words here in this Chamber can be used in arguments before our courts about the validity of the amendment to Section 277.
Firstly, our Constitution does not speak to the case where Parliament, in the exercise of its sovereign legislative power, chooses to amend at Committee Stage additional sections of the Constitution not included in the original Constitutional Bill. If the Constitution had intended to limit the exercise of Parliament’s sovereign power in this way, it should have done so in express words.
Secondly, the 30 day waiting period for Constitutional Bills was intended to prevent the mischief of the Government in power “sneaking in” amendments to the Constitution without giving public notice or opportunity to comment upon them. In answer, let me say that a “mischief” must be attended by some “bad faith” on the part of Government to trick or hoodwink the public. Hon. Senators, there was no bad faith attaching to the introduction of this amendment.
Madam President, on ordinary Bills, the requirement is that you have a 14 day waiting period; neither are our Standing Rules nor the Constitution say Hon. Members cannot bring in amendments at Committee Stage. It has been the practice and custom within the two Houses that Hon. Members at Committee Stage can propose amendments to the House and our Standing Orders do not prohibit that. So I hope that has been cleared. It was proposed by a member of the opposition and adopted by the whole National Assembly in good faith as a measure to promote the equality and well-being of the women of our country. On that basis, I can say that the introduction is constitutionally, politically and morally sound.
Madam President, I will now turn to the Judiciary. It is our opinion, widely shared by many that it is not proper or dignified for sitting judges of the Judiciary who are in line for promotion to a higher court to compete with each other by means of a public interview process. The Bill will exempt sitting judges from undergoing public interviews in these circumstances. Another amendment affecting the Judiciary is the one allowing judges to serve beyond 70 years of age to the age of 75, subject to a one time medical fitness report on the judge’s mental and physical capacity to continue in office until that age.
Madam President, the Prosecutor General is the subject of an amendment to Section 259 of the Constitution. We do not believe it is right to treat this post, albeit a very important one, on the same level as a member of the Judiciary in every respect, especially as regards his or her appointment and dismissal. Accordingly, it is proposed that the President should appoint him or her on the advice of the Judicial Service Commission alone. The question of the removal of the PG should not be the subject of consideration by a tribunal on the same footing as the removal of a judge, but a special tribunal with more limited scope for compelling the retention or removal of the PG.
Madam President, let me now draw your attention to the proposed amendment to Section 268 of the Constitution. It is noteworthy that in the Constitution, the Provincial Councils as presently constituted are top heavy with representatives from the national Parliament; namely the Senators elected from the province concerned, two Senator Chiefs from the province concerned, all the members of the National Assembly falling within the province concerned and so on. It is almost as if the provincial council is a clone of the national Parliament at provincial level. This contradicts the principle of parliamentary oversight of the operations of provincial, metropolitan and local authorities.
The amendment therefore limits provincial representation to mayors and chairpersons of urban and local authorities of the appropriate province and the ten indirectly elected persons drawn from the party-list for that province. Madam President, while I am still on this, let me also add that it does not mean that the Hon. MPs and the Senator Chiefs are prohibited from sitting at provincial council meetings. Just like the practice that is currently there, Hon. Senators and MPs can sit in council meetings, but they do not vote. What we are simply saying is they can sit but they should not vote because of the oversight role that they play at the national level.
Madam President, before concluding, I will briefly advert to two other amendments introduced in the House of Assembly, namely the removal of Clause 12, which would have delinked the delimitation of electoral boundaries from the census process and the removal of Clauses 17 and 18 on the establishment of the office of Public Protector. We now feel the Human Rights Commission should be fully capacitated to look into complaints of maladministration. With that Madam President, I move that the Bill be now read a second time. I thank you.
*HON. SEN. KOMICHI: Thank you Madam President. I want to thank the Hon. Minister for bringing the Bill into this august Senate so that we can add our views. I want to start by saying that the background of the national Constitution that we unanimously voted for in 2013 which was people driven – is very important. It must be applauded that the people of Zimbabwe in Chiendambuya, Tsholotsho, Binga and other rural areas were able to add their views to the Constitution.
What we are saying is that the historical background of this Constitution came from the people. People said that for the country to be well managed, and for us to have confidence in the leadership; we came up with the Constitution. For sure we sat down and it was a people driven project. On coming up with this Constitution, we had learnt a lot from the governance that was in place before this Constitution. We also realised that if power lies in the hands of one person, it can be too much and leads to corruption by one person. Power is sweet and can lead to corruption.
We said was that power that was vested in one person should be divided among other arms of the State which are the Judiciary, Parliament and the Executive, including independent Commissions. The powers that were taken and were being used during the old dispensation were too many. The President had too much power before the new dispensation and it created what we call a big man. In other words, it created a dictator. People become frightened when the Constitution is amended. The powers that were stripped from one person are now going back to that person.
Power that had been given to the people to craft this Constitution is now being taken and put in the Office of the President. It has been taken from Parliament to the Office of the President but what we are saying is that the power of Parliament is derived from the people. The power of the President is derived from the people as well and the judiciary derives its power from the people. So why are we then today taking that power which we had given to the nation to oversee and putting them in one office? This frightens us the people of Zimbabwe when the powers that had been availed by the new Constitution are being withdrawn.
If we are to amend the Constitution now, it will likely lead to more problems in the future. What has gone wrong Madam President? Section 98 on the running mate states that the President is supposed to pick two Vice Presidents and the choice is his. He has the privilege of choosing two Vice Presidents. It also states that one should be the First Vice President and the other Second Vice President. Why is it that now we want to change and amend the Constitution? We are saying that when you go for elections, the three of you should all contest. We are giving powers to say that if a person is elected to power, he now has the powers to say that I do not want this Vice President. What if we meet out there and clash on other interests that are not really to do with governance? I can have the power to dismiss you as the Vice President. If you give me such powers, I can do whatever I want and can use the Constitution to fight my personal vendettas against people.
Section 101 of the Constitution talks about smooth succession, which is good in the event that the President dies or becomes incapacitated. The first Vice President will become the President and that provides for smooth transition on succession. It does not waste time nor does it cause any stagnation in the nation. When the late President Magufuli passed away, the following day Madame President was sworn-in and there was no problem. We also witnessed that in Malawi when the late Bingu-wa-Mutharika passed on; Joyce Banda smoothly took over. So why can we not do the same as Zimbabwe? Do we think that when people are chosen as the First and Second Vice Presidents, they become enemies of the President of the nation yet we will have chosen that person through our system? So the examples of countries that I have given – United States of America does the same thing whereby if the President becomes incapacitated, the Vice President takes over.
We thought that we had modernised our way of life and had done away with the issue of fighting for positions. In my opinion, I think that it is not right for us to meddle with power of the Constitution. I do not think that it is right to withdraw these powers from the people. I fear creating dictatorship and also the challenges that we faced during the old dispensation – we do not want to see that. Why should we pile power in one office? When we share, there is smooth running of the country. We are happy with the Government of the day because we were using the Constitution but tomorrow if we encounter any conflict or challenges, we will not be able to solve them.
On the issue of judges that has been mentioned, the Constitution states that the power of the judiciary comes from the people, meaning that people hold power in this institution. Why is it that these people no longer have the power to select the judges? What is the problem? Our Constitution is very clear. We should not change things. We used it when we nominated Chief Justice Malaba and we were all happy because people were involved. This is to say that when a judge is elected through the public process, that judge is accountable to the people. A judge should not be accountable to a person because once a judge is accountable to a person the independence of the judiciary is compromised.
The Constitution also talks of independence of the judiciary. Why are we meddling with the independence of the judiciary? What has gone wrong? We do not even have a historical background of the challenges that have been faced because of this clause. Is there anywhere where we are regretting what has been done so far? Why do we want the judge to be appointed? If I am appointed as a judge, tomorrow I will put my trust in the person who appointed me and it will compromise my professionalism because when his relatives appear before me, I am forced to be biased and a sense of patronage is created within the system. The sitting judges will end up acting in a manner that seeks promotion and they will no longer have that independence to do their work. So we want to encourage separation of the three arms of the State; that is the Judiciary, Parliament and the Executive. When we do that, we are going to create a system whereby the three arms will be accountable and taking orders from the other arm of the State. Power must be distributed among the three arms of the State, which should be independent. These two sections, I feel we need to reconsider them. With these few words Madam President, I thank you for the time that you have given me.
*HON. SEN. SHUMBA: Thank you Madam President for giving me this opportunity to add my views to the amendment of the Constitution. I want to thank the Minister who has brought such an important Bill. In my opinion, the President is the Head of State. So, as the Head of State, he cannot lose his powers to his wife and for the wife to think that she and the husband are equal is not possible. So, the President should have the powers as the head. If we take away powers from the President because we want to please the people, I think we have lost it. The amendment is good because when we look at the President and the powers that we are giving him, there is no way he can forget his people. He should be given the right to choose people whom he can work with. Most of the Judges went through interviews. Now it is the duty of the President to see who has the capacity to run the Judiciary.
The President should be given powers to execute his mandate as the Head of State. If we look at the issue of the Vice Presidents that was mentioned, we cannot say that they should all be voted in by the people. One should be number one and the other one is number two, what if number one is beaten? So, if the President wants to work on certain programmes, he might have challenges. So, the President should have the right to choose who he wants to work with. Madam President, I support the amendments that were made to the Constitution. If we look at the women’s quota system, I think that is the best way to go. We cannot expect women to go and context with our male counterparts and win. They have everything to run us down and we will not win any constituencies but because of the quota system, our numbers in Parliament can also increase. This will prepare us to go and face those constituencies in future. I do not want to say a lot of words. All I want to say is that I support the amendments that have been brought by the Minister. That is splendid and it is good for us as the people of Zimbabwe. I thank you.
+HON. SEN. A. DUBE: Thank you Madam President for giving me this opportunity to also contribute on the motion that was brought by the Minister of Justice, Legal and Parliamentary Affairs. I would like to thank the Minister for moving this motion of the amendment of the Constitution. We are grateful for the extension of women’s quota by two terms. We are also grateful for the youth quota because 70% of the population is youths. I actually support this Bill and say the Minister has brought a very good Bill. I have decided to debate in my indigenous language so that I can be heard properly. Let the President appoint his deputies. I thank you
*HON. SEN. RWAMBIWA: Thank you Madam President. I want to thank the Minister for the Bill that he has brought to this House. It is indeed important for us to add our voice to this debate. As representatives of the people, we were sent by the people to come and represent them. We are here to represent the people. The Constitution was crafted in 2013 and we all agreed that, that is what we want. We must adhere to the Constitution. We have not gone back to the people to tell them the status right now and we are already changing what they said. I do not think it is right. This came from the people and we should take it back to the people. I think if we take it to the people, I see us progressing well.
If we give power to one office or one person, that office or person will be overloaded. What we should do is to take our issues to the people and agree and work together. Let us govern with what has come from the people because the people are the Government themselves. So, let us engage in amendments that will build Zimbabwe. Let us not come here to destroy. We were sent to represent people and to do what is right for them. So I think we need to consult the people for our work to progress well. What we have in here is like having honey that is filled with sand. So, I think we need to work together and go back to the people. I thank you Madam President.
HON. SEN. ENG. MUDZURI: Thank you Mr. President. My contribution today is to appeal to Senators. This is the Upper House where serious decisions must be made. The Minister of Justice, Legal and Parliamentary Affairs has just said he wanted to cure certain mischiefs on allowing the President to have his choice. Is he arguing that the whole Constitution which was tabled before a referendum – people were not thinking? They could not think that the President will not get someone to rule. Has he checked on the best practice elsewhere?
However, what I understand by running mate as done in the United States is that the running mate is chosen by the President himself. So I am not sure what mischief we are trying to cure or we are just interested in bringing in a Bill. If there is some other mischief we want to cure, let us not do it for a person, let us do it for the country.
Hon. Members, we shall be written in history as people who came here to agree on things that are destroying the country. The whole process of the constitutional amendment took years, more than 10 or 20 years, because you remember there was NCA, there were so many Commissions trying to change the Constitution so as to turn one president who lasted us almost 40 years and now we are calling ourselves a dispensation in less than 10 years after having a Constitution without even practicing the constitutional requirement once and seeing its shortfalls, we are already changing it. I want to appeal to you, Mr. President and Hon. Senators that let us not just do it for the sake of doing it, let us do it for the sake of the country. Let us try it first and as my colleagues have argued, how much consultation have we done to bring this amendment to this House?
Secondly, I am not sure what mischief we are also curing on the Judiciary system. If we thought the interview by the public might not be adequate, maybe we should have asked Parliament to interview the judges What is the best practice elsewhere in terms of getting judges? Why were they subjected to the public? So that they will behave and when they are making judgments they know that for their promotion they will still need public opinion which makes them answerable to the public. So I am not so sure what mischief we are also curing because the President has still got a choice after three judges have been chosen. The President has that choice. To me, we are just changing for the sake of changing. If you look at what we have done with our local authorities, there is a clause which was introduced just to get rid of Kombayi, there was a clause that was done to just get rid of Mudzuri and there was a clause just to try to get rid of the last mayor, Ben Manyenyeni.
Let us not bring in laws that we want to get rid of a particular situation. Let us make laws that will make sure they last for tomorrow. I am not sure why we lumped all these changes together. There are certain changes that you might think are to advance the nation like the quota system for women where we see that yes, we have practiced it for two terms, we see the advantages and we can now alter it and maybe allow it to go on. That would be a good introduction, giving reasons of what we have seen that at least we have managed to bring in more women into Parliament. However, you have now lumped this so that when people vote, they do not even know which one to vote for. You might not agree with certain things and you want to agree with certain things. This amendment, the way it is being put is either to force people by trying to please one small community but also failing the whole nation.
Mr. President, I feel that we need to look at devolution separately as well rather than the way we have looked at it. All we need to do is look at best practices and what is to the advantage of many. I do not mind the changes in the local government system but we have not tried anything or we have not even discussed anything to say, what are we bringing to Parliament to ensure that these changes are to the advantage of the people.
We represent people here but sometimes we are naughty and we end up representing ourselves and our selfish ends. Zimbabwe will not get far if we represent our selfish acts and we do not behave like nationalists. Nationalists sometimes do not agree with their Governments for the sake of progress and I expect that we are nationalists and we will not agree with our Government for the sake of progress and for the sake of our people. I thank you.
HON. SEN. DR. MAVETERA: Thank you very much Mr. President for giving me this opportunity. Mr. President allow me to say the Senate, this august House has got an onerous task to make progressive laws to serve Zimbabwe or to destroy Zimbabwe and for making a better future for the country we need to remove all our destructive interests and be patriotic in ways.
Mr. President, there is nothing wrong about amending a Constitution, provided it is in the interest of the nation, but there must be reasons. A Constitution is a strategic document, it is the one which creates us, it is the one which has created a state called Zimbabwe and it cannot be just easily amended because probably I have had a nice dream and want to change the whole Constitution. Mr. President, I do not want to go down memory lane of how we came up with the 2013 Constitution which was a protracted struggle and with a lot of changes to the country. I do not want to go to the negative ramifications which came as a result of the bad Constitution which we had.
Allow me Mr. President to refer to one of my icons, the late Hon. Edson Zvobgo…
THE DEPUTY PRESIDENT OF SENATE: Order! Hon. Sen. Mudzuri, can you please switch off your microphone?
HON. SEN. DR. MAVETERA: Thank you Mr. President. I said allow me to just refer to the memory lane and refer to one of my revered icon, Dr. Edson Zvobgo during the passage of the Executive Presidency. He said that was the darkest moment in the history of post independent Zimbabwe and that passage of the Bill of the Executive Presidency was an assault on democracy and human liberty.
Mr. President, the late Dr. Zvobgo, his prophecy came to fruition. We created a monster that brought a lot of problems to the country but he was referring to the Constitution. It is like a devil referring to the Bible to justify his ends. Zimbabweans at this stage, I do not think that the wounds have healed and I do not think that our memories have lapsed.
The 2013 Constitution people were very conscious of what they wanted and that Constitution has got a history. That is why if you refer to our current Constitution, one of the founding values and principles which is what should define Zimbabweans, is the separation of powers. That is Section (3) of the Constitution on our Founding Values, specifically Section (3) (2) (e) – respect of the principle or doctrine of separation of powers. Why is it that we know that absolute power corrupts?
If I can now zoom to a specific Section 92 of the running mate clause - I do not think we have got such amnesia as a nation to forget what befell the nation. There was wisdom in all this. We cannot have a whole nation - if the President resigns or dies, we cannot have a President who is chosen by a single person. That is completely unheard of. Let us not - and allow me Mr. President to quote in Shona ‘kuti tiite nyika sehuku inongoona painoteterera, painodyira tisingaone zvemberi’. There is wisdom in the clause for a running mate. People have to know who will take over their country when the incumbent either resigns or dies not because he has been chosen by the incumbent.
I do not want to be reminded of the most embarrassing situation that I experienced as a peace loving and patriotic Zimbabwean where in the previous dispensation, we had a whole State Vice President being embarrassed in public and being told by the First Lady to say, ‘you work at the mercy of the President’. That is demeaning to Zimbabweans and we cannot allow that to repeat itself. That is some of the wisdom brains behind the people of Zimbabwe coming up with a running mate clause.
We know that power corrupts and we note the duty of a Vice- President is to advise and assist the President with an independent mind, not that if I clash with the President then I will be fired and probably if you are unfortunate you may have to jump borders like what happened here. We cannot allow that to repeat history- such a bad portion of our history to be repeated again Mr. President. The only vaccination against that happening is to stick to what people chose. Let us not abuse our representation as Parliament to say because we have got a majority and people vote for such unprogressive laws.
We definitely need to open our minds. Unfortunately, politics is very funny. There are factions and counter-factions. The people who are supporting it today, tomorrow will be haunted chimbwa chawakarera nemukaka chaakukuruma. That is the beauty about politics. Can we protect the people of Zimbabwe and the nation called Zimbabwe. There are three pillars which defines a State. There is the Judiciary, the Executive and the Legislature. There was wisdom by the people when they said they had to have a say in choosing those separately.
When you have the President appointing the Judiciary, we have got a problem. Where is that independence? One who appoints can disappoint and inzara, allow me to use it in quotes ‘Ndinopedzisira ndoita zvokuti vana vararame’ but not what is good for them because I am afraid of being dismissed and disappointed because I have just decided to give an independent opinion which is contrary to the one who is in power.
I think this example for a running mate clause has been given for smooth transition of power. I cannot go and over emphasise on that. I will point outside borders that happened in the United States of America when we had a rogue President called Donald Trump who wanted to go against all the norms of a progressive democracy and instigated insurrection against the State. We had a patriotic American in the name of his Vice President Mike Pence who refused to follow his orders. He refused because he was protected by the Constitution. Zimbabwe must learn what is good.
I think as a nation, we hope to go onto the next level. Definitely, this is a very unpopular clause and I am not a prophet of doom, but we will have civil societies and people also starting to fight, and we start again to create the NCA history. Will that benefit Zimbabwe? I appeal to Hon. Members, I know we have got party jackets but those jackets are not above national jackets. This is an onerous responsibility bestowed on us to defend the institution called Zimbabwe and this is one of the oath which we took, being to protect Zimbabweans.
My primary duty among others is to protect progressive aspects of the Constitution. As I said on my initial presentation, it is normal and legal to amend the Constitution but there have to be reasons. With due respect to my Hon. Minister and others, he gave a good example for provincial councils. I agree with him because he had reasons but he was shy of telling us the progressive nature or what Zimbabwe is going to get in removing the running mate clause.
I think like my colleagues who spoke before me said we do not create a law for someone and a law is better because it can be amended easily, but we cannot change a Constitution to target a particular person or particular group. Zimbabwe belongs to everyone and my fear is actually being confirmed. If we give people who may not be responsible enough, we may have problems but I believe the incumbent President may not be that person because he suffered. If he was within us here, debating this Clause, he might probably be on my corner because he would be talking from experience, walking the talk unlike some of us who are seeing from the terraces.
The office of the Presidency, that includes the Vice-Presidents, it is sacrosanct and is a pillar. It defines stability of the institution and it has to be safeguarded and protected by law, not to produce any laws which are so loose. This means if the President just wakes up and he is not happy with his Vice-President, he can dismiss the Vice-President. We are saying no, the President cannot dismiss the Vice-President and choose his close friends or someone because we cannot have Zimbabwe being run by a President who is elected by one person. We are not looking for a sabhuku, we are looking for a Head of State. That is serious and we need really to go beyond our personal interests and put the nation first. I think on the issue Vice-Presidents, the running mate Clause, I believe I have done justice to it from a very impartial and patriotic Zimbabwean who is making use of my very little experience which I have gained. But I was fortunate to see how these laws might be abused and we are all in here for the testimony. So, do we want to go back again? I think progressively, it is a big no Mr. President.
Allow me to leave this issue and proceed to an issue of the Judiciary. Mr. President Sir, the stability of any State is dependent on the strength and independence of its Judiciary. I do not know where the wisdom of trying to protect someone who has reached 70 years instead of allowing him to go is coming from. Probably if he has got a small garden like me or a farm like others, to go and enjoy the remaining part of his life living a normal life, then he should go.
Mr. President, honestly, it defies logic, this is one of the reasons why we say in this country, gone should be the days when we enact legislation targeting a particular individual. I am wrong, I may be correct but Mr. President, as a citizen of this country, I am allowed to say what I think. This Clause, I will call it a ‘may Clause’ to try to protect certain interests. There is no reason why we can protect someone who is 70 years. Some of them have served from their 40s as High Court Judges, other Judges up to Chief Justice. Instead of allowing them to go and rest, you say we want you for five years. Honestly, what is it that he has failed to do which you want him to benefit? If you think you still need that person to service, then that person must not be performing because he should have been empowering his juniors. Because if I know I am going at the twilight of my age and the skills I have, probably I am, gifted, I will have to impart to someone and allow myself to go and rest.
Mr. President, I am very much against this extension. It actually, unfortunately, impinges on our democracy. It removes the independence of the Judiciary. With those few words, allow me to appeal to my fellow respected Hon. Members to really be independent, tisaita sehuku inongoona painodyira, pazvichapera, mangwana toenda kupi – [HON. SENATORS: Hear, hear.] – I thank you
+HON. SEN. KHUMALO: Our Constitution took many years to come up with but we finally came up with one Constitution. It should not have a lot of patches like a cloth. Once we do that, we will end up with a torn document. Now, we have a good Constitution that is good for our country. The issue of running mate, we should not even talk about its amendment when it is not even implemented. You know that a person appointed by another person has no power to do the work because he looks up to the appointing authority. My worry is that no one is prepared to lose whatever he has because once he got something; he should enjoy that work and work for his family.
Personally, I do not support the Clause on removing the running mate. I support the amendment that talks about women’s quota. Women used to be responsible for house chores but the situation now requires women to be into leadership positions. When we talk of women, their resources are not that sound, so during campaigns, they cannot reach out to people. For this reason I support the women’s quota. Now, the situation is indicating that when a woman is in leadership, you can see that things are moving on well because they understand problems faced by children and their husbands. I am grateful that the women’s quota is going to be extended by two terms. That is a very good development to ensure that there are more women in positions. Women will be speaking with one voice because they will be working together.
I would like to talk on the youth quota. We also talk of children, we always say children are tomorrow’s leaders. We should start to include women and youth in leadership positions. This will enable the youth to have proper leadership qualities. This is good, they should work for the nation and represent others in councils that we know women are being given a chance. In councils, things are just difficult; you find that where there are 24 people, only two or one is a woman. Our people are not confident with women, they are not being voted into office. With this opportunity, as in the Constitution, we are grateful for that. Let this amendment be passed. I thank you Mr. President.
HON. SEN. PHUGENI: Thank you Mr. President for the opportunity to also add one or two things with regards to the proposed Constitution No. 2 Amendment. Mr. President Sir, the Constitution is the bedrock of a Government in any country. Ours is a much loved and admired Constitution all over the world since our people overwhelming voted for it in 2013. I will not waste much of your time today because the disadvantage of speaking after so many brilliant speeches and speakers is that much of your points would have been taken away.
So, for that reason, I will just read here and there allowing much for the Constitution to speak for itself. Section 2 of the Constitution speaks of the supremacy of the Constitution. It says this ‘law is the supreme law of Zimbabwe and any law practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency’. Clause 2 says, ’the obligations imposed by this Constitution are binding on every person, natural or juristic including, the State and all the Executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them’.
So, it is clear that which the minister seeks to amend is the supreme law. I have read and I have heard speakers correctly speak about the quarter for women and for young people. Others go as far as saying they are very grateful as if this is an Act of some benevolence by some benefactor and some certain office or somewhere. Let no one be in any doubt that the extension of this quarter for women and introduction for them at councils and youths in the way it is proposed is not progressive at all.
If anything, those that say so are seeking to sell us ice blocks during a snow. Mr. President, the Constitution of Zimbabwe tells us its aims, objectives, what exactly it sought to heal the mischief when we repealed the one that preceded this one? It said when an unequal society which disadvantaged women and it sought to heal that mischief by raising women to a level of 50% representation, even in this Senate. So I want to reject it as false that there is some favour or there is something good to be gained by giving women less than 25% representation in the National Assembly because that is the current status quo.
I agree with the law but the law must say for the next two terms we raise the representation from 6 to 10 per province so that when we finish those two terms, we change the electoral law from first past the post to a proportional representation, so that we can achieve the ideas of this supreme law to a 50:50 gender representation. What I am doing here, is I realise the mistakes, it is my patriotic duty to draw all of you to the ideas of this Constitution; when it spoke about youth representation, when it said we ought to do everything possible in our power including legislation to affirm and empower the youths. Anything short of that, Mr. President Sir, it will be in violation of this Constitution. I am sure that no one will rationally disagree with me when I say that it is not true that the quarter of women was going to end in the next election in 2023 and nothing would have happened and still would have been within the constitutional order. Even the preamble, the Constitution makes it clear that it seeks to build an equal society where every man and women are representative or are represented equally.
Here in the Senate Mr. President Sir, thanks to the Zebra system, we do have a 50:50 representation of gender. However, because we have chiefs who in the main are male, it has tilted the balance again in favour of men. I make a proposition that that zebra system which we have in the Senate, it must be added to say it starts with women and end with women so instead of 3 females and 3 males, you end up with 3 males and 4 females to try and balance this gender abnormality in this Senate.
It has already been said that the Constitution is a bedrock of any Government, the agenda 2030 by His Excellency the President cannot be achieved when our women are left to occupy those roles which they occupy at the behest of us men. They need to be this attitude where we raised our mothers, sisters and grandmothers where they know that they occupy the positions they do because of their inherent right of being Zimbabwean.
As I sit down Mr. President Sir, I need to add something which has been left out when discussing the issue of the running mate. The issue of the running mate Mr. President Sir does speak to the issue of gender balance that I have been referring to. You will recall we had a Vice President in this country in the name of Hon. Joyce Mujuru. She was unceremoniously removed from her position by a very powerful President who later lived to regret that action but it was too late.
It also speaks to the issue of the historically marginalised people of Matabeleland. We had a Vice President here by the name of Mphoko. When the military intervention happened, he had to run for his life and when he came back, he was also like Hon. Mujuru removed from power and we have never heard of him. The former Vice President of the country resigned after not so pleasing details emerged about him and his private affairs. We are just over a month now and there is no replacement. The people of Matabeleland feel they are underrepresented in the Executive power of this country.
If you have a running mate clause remain in the manner it is, and I recognise that it has already been said that it is the President that chooses without anyone’s interference; what does the running mate clause do? It secures the position for women who are extremely vulnerable and the minorities – if not because of our democratic dispensation or dispossession at least by an act of God, that women may one day rise to a level where we can address and say Her Excellency Madam so and so. With the running mate clause, we can at least have someone from the minorities become a president because gender and ethnicity must have no role in the leadership and participation in a political life of our people. With these few words and I trust they are few, I want to say Mr. President “Malibongwe igama lamakhosikazi amandla kuzulu.” Thank you Mr. President.
*HON. SEN. CHIRONGOMA: Thank you Mr. President for according me this opportunity to add a few words to this Bill. I first of all want to explain what the Constitution is. My predecessors also explained what a Constitution is. It is a very important document. The people of Zimbabwe in 2013 took the opportunity to craft and develop our own Constitution, and we came up with what we have today.
Mr. President Sir, on the 2013 Constitution, we consulted the people of Zimbabwe. They are the ones who crafted this Constitution. We consulted all the different sectors of the country. We went to each and every area and asked people what they wanted in the various areas. This is what came out of the consultations leading to the 2013 Constitution. What people said is that they wanted a President with full power and that is what they wanted. They said they did not want a Prime Minister but wanted a President with full power who would select those to work with him for the development of the nation. So, we do not want a situation whereby they go for voting as Vice Presidents and habour presidential ambitions. We want the President there who should be able to choose his own Vice Presidents since that is what the people said.
Even if we are to go back to consult the people, they will reiterate word for word what I have said in this House. We really want to do as the people said. The President of the nation should be the Commander-in-Chief of the Defence Forces and all those in defence should be under him. That is what the people wanted. The President should choose his own running mates.
On the issue of judges, the people said they wanted a judge who would lead the nation of Zimbabwe but this judge was appointed through legal means, was vetted and we had the Judge President. Even his deputies are there, so it is not about changing this and that. The nation is progressing well in terms of governance because of this. We want the President to have the powers to elect judges, as people also voted for the President to choose the Judge President.
On the issue of women in our nation, they have been discriminated and have experienced a lot of challenges. In the 1960’s, they could not even acquire national identification cards even some who were as intelligence as those we have in here, do not even have national identification cards for them to come to Parliament. We slowly progressed and addressed this matter and today we have our women leaders just like what we have in this Senate today. They are leading us all and we need to celebrate this milestone.
In this august House, we have come of age and should have wisdom. We want the women in this House to be elevated. The quota system that was brought up was a splendid move to increase the number of women in Parliament. Yes, we have not yet achieved what the Constitution has mandated or provided for the 50/50 quota system. We have the quota system and we want to increase its term. We also have councillors and need more women in councils. So I think we are doing well. The young, specifically the youths, have not been heard and have now obtained a quota system. We want to give them power and leadership as we progress until 2023. We do not know what 2023 will have in store but we hope to keep progressing in terms of numbers for youth and women as well. I want to support the Bill that has been tabled by the Hon. Minister. Hon. Minister, you have tabled a very intelligent Bill.
Mr. President, on the issue of devolution, as Hon. Senators, if we are to go and assist in the development of our communities – when it comes to voting, we should not have voting powers, they should vote. I think that it is a good move Mr. President. I do not want to say a lot but want to support the points that I have hammered on that it came from the people and the people are the ones who gave us the mandate to come up with the Constitution that was passed by the people. So the President should have full power. I thank you.
*HON. SEN. CHIMBUDZI: Thank you Mr. President for affording me this opportunity to add a few words to this Bill and to thank the Minister of Justice, Legal and Parliamentary Affairs for tabling this amendment that is important for us as a nation. It has touched on issues that have not been included in the Constitution and has led to the amendments for the good governance of our nation.
Mr. President Sir, I applaud this amendment because at one time, I was greatly disturbed and angered by the fact that our Government does not recognise us as women. How do they view us? Do they know that there are women in this country? In reference to my council, Pfura Rural District Council, it has 40 Wards and only two women. That really disturbed me. Let me thank the Minister of Justice, Legal and Parliamentary Affairs that now this amendment is now in the Constitution, we will see more women in Local Authorities because of this amendment. Women are very hardworking Mr. President Sir. We want them to be liberated from the colonial mentality and want them in the private sector and in Government as well. So I want to thank the Hon. Minister for what he has done this afternoon.
Let me also say that there is nothing wrong in the President appointing his Vice-Presidents – I think that it is good for us as a nation. It does not mean that the Vice-Presidents will not adhere to the Constitution; they will adhere to it because they take Oath of Office before the judges that they will work for the nation as Vice-Presidents of the Presidence. As Zimbabweans, if we say that the Constitution of the United States of America is good, fine but we need to have ours in place that is driven by us. If you see what happened in Malawi between His Excellency Chakwera and Mutharika, they had different parties at the election but the current President is the one who won.
I want to thank the Hon. Minister because this amendment will give us better standing. When looking at the women’s’ quota in the National Assembly, I was disturbed when I heard that it was being removed but I am happy that the Hon. Minister stated that the women’s quota system will be extended and it is a welcome move. I also want the Hon. Minister to clarify on that women who will be going to the National Assembly will be below 32 years. Are you saying that this section will only affect women and not the men because you only mentioned the women and not the men Hon. Minister, so I just want clarity on that? Is it only the women who should be not more than 32 years of age? I appreciate that you have recognised us and we will continue being Members of Parliament.
We thank you for that Mr. President and with these few words, I thank you Mr. President and that in 2023, we will also have more women at Executive levels. We are looking forward to that because this Constitution will have been amended, so we look forward to more female ministers. We are happy that the Ministry of Defence and the Ministry of Information Communication Technology, Postal and Courier Services are led by women and they are working very hard. We thank you that you have supported us in these positions. I just stood to support that this amendment greatly promotes women and with these few words, I thank you Mr. President Sir.
*HON. SEN. MBOHWA: Thank you Mr. President for giving me this opportunity for me to put emphasis on what is in this Bill from the Minister of Justice, Legal and Parliamentary Affairs who brings amendments that help us as Zimbabweans. Thank you Hon. Minister for the amendment that you tabled and this is the reason why the word ‘amendment’ exists. It means that even when we have a Constitution, an amendment can be made.
When you move around, there are certain things that you realise are a challenge. For example, you will realise that the women’s quota was only given two terms and you have realised that it is inadequate and hence extended the quota. The way that we have been brought up as Zimbabweans is that in Heaven, we have our God who is our Father, who brought us into this world. He has given us traditional leaders in our communities and leaders at national level, who follow the Constitution. For a father to be head of a home, he needs to have power. If we take our traditional leaders and say those whom you are going to rule with, we as the community have to vote for them, I do not think it will work. The leader has wisdom to know that these have wisdom, so they chose who to work with. Those are the powers we are saying should be given to the President who was put in that position by God. He should be able to choose his Vice Presidents.
If we impose on him people to work with, it becomes difficult for him to supervise them. If the head selects his own people to work with, it is easier to work with them. So, we want a President whom we have entrusted to choose his own Vice Presidents, who has the knowledge and the wisdom to know who is good in what. On the issue of the powers of the President, let us not reduce these powers. Let us not have this spirit of reducing the powers but let us trust him as the head of the nation and know that he loves everyone in the country. We should have foresight to build our nation. No father will take a mad man and put him in a leadership position. If the one he appointed fails, he does not blow the trumpet to say come and see what is happening but he will just remove that person and put someone with the capacity.
It is the same with the issue of judges, those people undergo interviews. It is like Members of Parliament, they have gone through elections and come to Parliament, so they do not have to go through more interviews but are just nominated as chief whips and the like. That is where the appointing authority comes in and the President must do likewise.
The issue of women has been debated on the councils – youths have also been mentioned and I am in support of it all. On the issue of Head of State, that is what we want. We want the Head of State to appoint those people who have the capacity. I think the running mate clause must be removed because it can derail Government and the nation. I thank you.
*HON. SEN. MOEKETSI: Thank you Mr. President for giving me this opportunity to add a few words to this Bill which was brought by the Minister. Allow me to say when we are in this House, the Senate, we are grown up people with different opinions as Senators. Mr. President, we have gone for elections, we have chosen a President, does that mean that all the things that will be done by the President, we are the ones who are going to tell him? We should give him a chance to perform his duties. He is now the head of the nation, let us let him execute his duty in the manner which is suitable for him. For those who also want to be Presidents, your time will come. I am not dismissing what others have said, but what I am saying is that as we have different views, it is important to give the President a chance as children of Zimbabwe.
Looking at it again, when the President appoints other people, he will not be alone. He will be with others to consult. Forgive me please and let me express myself as we have different opinions. On the issue of women; thank you very much Hon. Minister for bringing this Bill to this House. Women were not regarded as important. Women are relegated to domestic hands in the homestead. We want the 50/50 proportion but when we go for elections, we compete with a male who is well empowered for the race and we would not win. The President did well to have a quota specifically for women. This is excellent for us, we should not shoot ourselves in the foot by denying this amendment.
Our youths have got a very good opportunity now which has been availed to them. The youths used to be agents of violence, being used for violence and being exposed to drugs. With these few words, these are the issues that I wanted to express. The scenario we have here is that we are supposed to respect the man because he is the head of the family. He has powers and we should respect that. Thank you Mr. President.
*HON. SEN. MUZENDA: Thank you Mr. President. I do not have much to say because a lot has already been said. My issue is on the issue of the Presidential appointment. My view, I am only putting emphasis on what others have said. If the President has been given power by the majority, Zimbabweans in our particular case, he has been elected into office and he has been given power to exercise that power. He should be given that chance to do so. Allow me to say in Shona we say ‘hapana ibvi, hapana mupimbira’ With reference to the Constitution and the issues being debated here, the President must be happy and do as he decides and sees fit or what is important to this nation. When he chooses his Vice Presidents, he would have consulted widely on performance of those whom he intends to appoint. Forgive me Mr. President. My father always told me this. I always asked my father, the late Hon. Vice President Muzenda on the issue of running mates. I talked to him about a lot of things and this is what he told me to say, ‘Tsitsi my daughter, for example if you have been chosen to be the President your running mate should be someone you have all your trust in. Even in your absence you should know that things will run smoothly’.
Mr. President, I would say that is very good. How come we give the President powers to choose his Cabinet. In our scenario, as a nation we see that there is development and progress through the individuals that he chose as Vice Presidents. Hon. President, I support the point that we should give all those executive powers to the President and he should exercise all those.
We are Africans, black people. As we are black people, there are things we look at thoroughly. This issue of running mates is bad when it comes to traditional leaders. The issue of running mates causes a lot of commotion, confusion and hatred. People might even die visiting traditional healers because of these positions. We will definitely kill each other because of such positions. My emphasis is that the President of the State does not choose randomly, but there is serious consultations done before getting someone into office. With these few words Mr. President, I say thank you very much for the Bill which has been brought into Parliament by the Hon. Minister.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. President Sir. Mr. President, allow me to respond to the debate by Hon. Senators regarding the Constitution Amendment (No. 2) Bill. I want to thank all the Hon. Senators who stood up to debate. It is a robust debate though sometimes I have noticed that some become too personal and debate on issues that they do not have knowledge on and insult certain institutions of Government unnecessarily.
On a point of correction Mr. President Sir, when there was a change over in 2017, the former Hon. Vice President was in Russia. I notice the Hon. Members sometimes get too excited because they will be standing in front of people and cameras and start attacking State institutions. This is an honourable House of Senators, vasharukwa, amheno ambotaura. He was in Russia, he was never arrested save for cases that he did that are before the courts and I cannot comment on those. I think it is improper to come here to try and please certain individuals by making allegations against State institutions for things that they did not do. I think it is not right because they do not have a right of audience here.
The military never arrested the former Vice President Mphoko. They never touched him and whatever happened happened. He was in Russia. He was in safe territory. He could even have decided to stay there; nobody was following him.
Having said that Hon. President, let me return to the substantive issues, I want to thank Hon. Sen. Komichi for his debate on issues. He particularly concentrated on issues to do with ‘we must not amend the Constitution’. He said this is a very good document and that it allows for smooth transfer of power. He cited Malawi and Tanzania as examples.
Let me start by saying if there is a clause in the Constitution that was so badly done, it is the running mate clause and let me explain. It simply says the President and Vice Presidents will be jointly elected, which means whatever electoral law that we have to make as the Ministry of Justice, Legal and Parliamentary Affairs, there will be the name of the President, the Vice President and another Vice President and you put an X on the three of them. What it then says now; is the President cannot remove that Vice President. This Vice President, his only function that was put in the Constitution is to assist the President but you cannot fire him if he is no longer interested in assisting you, but you must be elected jointly so that you can smuggle in something to say that because he was elected you need an impeachment process to remove him.
I am sure Hon. Senators are noticing this. The only thing that is in the Constitution is to have one ballot paper – President, Vice President, Vice President; you put an X. Are we giving voters a choice? Are they choosing a vice President and then after that, the same Constitution in section 99 says the function of the Vice President is simply to assist. Now you have a President, the assistant does not want to assist and you need an impeachment process to remove him.
So this clause was so badly done to the extent that I do not even understand why people are clamouring for it. It is one of the most useless clauses in the Constitution and it is a very good reason why Section 328 is even there on amendment. I want to thank Hon. Sen. Mbohwa who said this is a Constitution Amendment Bill, which means the Constitution can be amended. The notion that we cannot amend the Constitution - I do not know where it is coming from and I have just cited that.
There was an example of Malawi. I think it is a very good case study. In Malawi, President Bingu waMutharika and Vice President Joyce Banda fell out. He could not fire her. So, she was there seated and God knows what killed President Bingu waMutharika. As soon as President Mutharika died, the party was now in a dilemma. The Vice-President was no longer with the party but because she was supposed to be made President, they agreed grudgingly and said we will wait for an election but she was now working with people who were not with her. Imagine the discord in the running of the affairs of the country, the President with lieutenants who are not with her and she now had to play politics and ensure that certain MPs defect to her, which is not necessary.
So, that example is one of the best examples to show that the running mate clause, in the form that it is in there and the form that it is in Malawi, it is one of the worst clauses for democracy. I will now go to Hon. Sen. Komichi where he spoke about Judges. I agree with him that the Constitution in terms of Section 162 says, ‘the judiciary authority is derived from the people of Zimbabwe and is vested in the courts’. This is correct. Do you know how it is vested in the courts? This is because of the electoral process.
I have always heard that there is this separation of powers, the Executive, the Judiciary and the Legislature. People forget that we are only talking about the Head of the Executive, but we forget that we have a Head of State. The President does not head the Executive only. He is called the Head of the Executive and the Commander-in-Chief. The Chief Justice, the Judiciary is appointed by the President as Head of State. So, the President is not equal to the Speaker of Parliament. The President is not equal to the Chief Justice. He is above them because he heads the Executive but he is the Head of the State.
You cannot equate him with them and so, there are certain powers that are bestowed on the President by virtue of him being the President and because of the powers that he has, hence the Constitution speaks about the judiciary authority coming from the people because he is the President who appends his signature. I agree with you and we are saying once they are interviewed at entry level, the President must be given the powers bestowed by the people of Zimbabwe to ensure that the judicial authority comes from the people and not a few selected by the President who then continuously do interviews.
The interviewing process is very pathetic to say the least and by the way, it is not the public that is interviewing. It is the Judicial Service Commission. I think let us not say that the public will be interviewing. The public will be listening to a few individuals who are interested in each other because they work with each other on a day to day basis, blasting each other in public and we smile and say this is democracy. You want me to appear before the same judge that was being told that you took a bribe or you attempted to take a bribe – why did they not address that for the dignity of the institution behind doors or they start arguing among themselves how cases are completed in court, and you say the public will comprehend what they will be talking about in interviewing processes?
That is what we are saying that at entry level, let there be interviews. On promotion, the very same Judicial Service Commission must shortlist and give the Head of State and not the Head of the Executive. So, whichever way you look at it, the appointing authority is the President. I am very happy that Hon. Komichi, while he attempted that we must not amend the Constitution, he conveniently chose to be extremely silent about the other good clauses, which shows that he was also conflicted and he agrees with everyone else that this Constitution must be improved.
I will give a good example that those that are continuously preaching the wrong gospel are wrong. When you are quoting sections of this Constitution, remember to read them in conjunction with each other so that they make sense. If you read it in isolation, it will not make sense. If you go to Section 271 on Metropolitan and Provincial Councils, I want to read it, Section 271 says ‘Committees of Provincial Councils’ and it says, ‘for the better exercise of their functions, Provincial and Metropolitan Councils may establish Committees but each such Committee must be presided over by a member referred to in Section 268 (1) (h) and or Section 269 (1) (h) as the case may be’.
We have been preached to that this is a very perfect document but in this Constitution, we do not have Section 269 (1) (h). It is missing. How do we correct it if we do not amend the Constitution? It is totally wrong to say that this is not a trouser where you put a patch. This is a pipe. You replace where there is a leakage. If you hear those who say the Constitution does not need amendment, they are making a very big mistake because a Constitution can be amended. It can be fixed unlike a water pipe.
I was listening attentively to Hon. Sen. Muzenda where she said we are Africans. The way this clause is structured is simply to tell us that if the President dies, the first Vice-President becomes the President. This is simple and nothing else. So, potentially, it creates a lot of problems and I think she explained it better than I can explain.
I also thank Hon. Sen. Dube. She supports the Bill in so far as it allows the empowerment of women to continue. Hon. Sen. Rwambiwa mentioned that people gave powers to fix this Constitution Amendment. This clause does not give the President any task but it is focusing on the President. I do not know where they are getting such a perspective to say we are giving a load of work on the President. The President is not a helper but he is the one in charge and he is the Head of the State. Even if you look at the Provisions, he cannot remove anyone.
I would like to thank the Hon. Senator because they fully understand what it means and what we are trying to do. Hon. Sen. Mudzuri, I think I have answered some of the issues. He is totally wrong in that he thinks that the running mate clause is a silver bullet. It is actually a hopeless Clause, we do not even know what we were thinking because we did not do any justice to explain what we want to achieve by it. He said we must do consultations. Mr. President, consultations here done, the amendment procedure for a Constitutional Bill is very different from the amendment procedure or the enactment of any legislation. It allows for consultations. The Constitution clearly indicates that certain Sections you need two-thirds majority, certain sections you need a referendum, which is going back to the people. So I do not know why Hon. Sen. Mudzuri was now confused about consultations. It makes provision for those Sections of the Constitution that have got entrenched provisions where you need two-thirds plus a referendum. In this case, this one is very clear….
THE DEPUTY PRESIDENT OF SENATE: Order, order I do not have to keep reminding the Hon. Senators that when you come into the House, switch off your cellphones or put them on silent. Can you proceed Hon. Minister.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS [HON. ZIYAMBI] – Thank you Hon. President. Then he goes on to say, why are we doing away with public interviews? Like I said, these are not public interviews, it is the Judicial Service Commission conducting interviews that the public have access to listen to without contributing. All we are saying is, at entry level the Judicial Service Commission – yes, they can do interviews, at promotion, it is a disaster, even in all the countries that we have noticed. It becomes too personal and I think I will not labour on this. In any event, like he rightly said, he is given three names to choose from. So ultimately, we are saying we need to maintain the dignity and integrity of the judiciary by not allowing them to subject themselves to interrogating each other in public. Then he contradicts himself after he said why are we amending by saying there are very good provisions, why mix good provisions with bad provision? I am happy that he saw the light that in this Constitution, there are also other amendments that we can make which are very good.
I want to thank Hon. Sen. Dr. Mavetera for saying there is nothing wrong with amending the Constitution which is the spirit. I like that because he acknowledges, let us not move around lying to people that we are putting patches to the Constitution. Thank you for that Hon. Sen. Mavetera. However, I also want to correct him, he mentioned the late Hon. Dr. Zvobgo, may his soul rest in peace.
In fact he was totally wrong, in 1987, the late Dr. Zvobgo was the Minister of Justice and is the one who came up with the Bill to introduce the Executive President. Nobody has even said it was wrong. I thank him for introducing the Executive President. He did an excellent job. The only problem that people were worried about is let us have term limits, but the question of an Executive President is not bad at all. So, I think he was wrong to make reference to the Minister responsible for bringing the Bill to Parliament. He would not have said that when he was responsible for bringing it here. In trying to quote, let us not misrepresent facts. Again, I have spoken about the separation of powers and I have said let us not elevate the status and stature of the Chief Justice and that of the Speaker of Parliament and equate it to the Head of State.
There was a statement that we are amending and increasing the age limit for the Judiciary because we want to protect certain individuals. Absolutely not, in the very same Constitution, there is provision for Acting Judge and if you read the Constitution carefully, you cannot be an acting Judge unless you are a retired Judge which automatically means you are above 70. So what we simply did is to say okay, if we are saying that that Judge is still good to go to our courts and takes issues like what is happening currently to two of our retired Judges, I think it is Justice Ndou and Justice Ziyambi. What is wrong with having somebody who is good to be in the Constitutional Court or to be a Chief Justice or Deputy Chief Justice when we acknowledge in the same Constitution that those who are above 70 can be Acting Judges? So, the Constitution that is a very good document allows that.
*Hon. Sen. Khumalo said that a Constitution is not a garment it should not have a lot of patches. Mr. Speaker, it is just like a pipe line, when there is something that you feel needs to be corrected, go and correct it, it can be fixed.
Even though she speaks about patches she is in support on the Clause about women. I thought it was also contradictory. Hon. Sen Phugeni speaks of the Constitution as a sacred document. He was very eloquent and very sarcastic. He says we are bringing the amendment as if it is an act of benevolence…
HON. SEN. PHUGENI: On a point of order Mr. President. The Minister is accusing us of playing the man not the ball, but that is exactly what he is doing. He is projecting a lot. He is telling us that we are emotional, yet he is the one who is emotional. We must be able to debate in this House, he must not impose debates on us, we never even implicated any institution of government here. We were just explaining things – how they unfolded, so I think the Minister must withdraw some of the things that he has said.
THE HON. PRESIDENT OF SENATE: The Minister is responding to the issues raised by the Hon. Members and that is how he saw them. Hon. Minister, can you proceed.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. President, if I was taking notes correctly, and if the Hon. Member can say it is wrong - he said by bringing this Bill, I want to project it as an act of benevolence by some actor in some office. He went on to say that it is like selling ice block in snow. I did not add any words; this is exactly what he said and that is why I said he was dramatic. He even said that the military arrested Hon. Mpoko – [AN HON. MEMBER: I never said that.] – That is why in my initial response I said Hon. Mpoko was not in Zimbabwe when this happened, unless if you can tell me then we can go to Hansard. I did not say these words but this is exactly what he said, if you can allow me to proceed.
Hon. President, law making process is not an act of benevolence, it is a process and it is a constitutional Bill. It is actually clearly stipulated that the Speaker gazettes and all the processes that are supposed to be followed, we have been following. I am not sure how the Hon. Member wanted a Constitutional Amendment Bill to be brought to Parliament by referring that we are pretending or it is an act of benevolence. I take great exception to that and I cannot hide it Hon. President Sir. That was a direct attack on the Executive for doing its duties. Forgive me because perhaps he does not appreciate or understand how the constitutional process is supposed to be done.
I also listened attentively and he spoke about realising a 50:50. Hon. President, I do not know of a country on this earth that has managed gender equality. In our effort to aspire, because in trying to bring in the proportional representation quota for women, we are saying we are aspiring for equality. We hope for a day when men and women are equal but how do we do it? We empower them by ensuring that we encourage women to participate in politics. How do we encourage them - by not having them competing with men. South Africa Mr. President Sir, has a total proportional representation system but they do not have a 50:50. So I think what we need is a national discussion without being emotional, without quoting sections or clauses and say how do we empower our people. For now as Government, we felt that we needed to retain the women’s quota for purposes of planning because it is less than three years before the next election and if we wait, it means we lose the gains that we had made, or we maintain that and we continue the discussions to say how do we find a permanent solution to it.
So attacking the extension without having proffered solutions from 2013 to have a discussion to say this has been given a 10 year life span, what do we do as a country? I think it becomes very unfair. This was a failure by all of us to have a permanent solution. So we cannot have a section trying to pretend to be saints. Let us just accept that for now let us have the quota being there and we continue the discussions hence you will realise that we gave it a cap to say let us extend it for the next two terms.
He spoke about the zebra in the Senate. It ceases to be a zebra Hon. President, if you say as it is it is female; male -I do not know how it becomes a zebra when you say female – male - female, -female. As for the institution of chiefs, with all due respect, I think it is a separate institution that we said must be in the Senate. We cannot not now try to change kuti madzishe anogadzwa sei mudzimba dzavo across the country. I think it is not ideal to look at women empowerment in terms of the number of chiefs. Let us leave the chiefs alone because they have their own processes that they do. Magadzirwo azvo, madzishe, zvinofamba sei ngatizvisiyei izvo hazvisi zve election.
Mr. President Sir, I think let us not tribalise issues that are not necessarily tribal, like the people of Matabeleland are saying they need a President. Who told you that you are their spokesperson? I think it is an issue that the President when he sees fit, he appoints his assistant. He is not appointing assistance because of tribal lines; he is appointing assistants because they are Zimbabweans.
Hon. President, if you look at our provinces, they are not equal. I may probably say that the population in Mashonaland West may be times two the population in Matabeleland South. So those are issues that I believe as a nation we are all relatives. Let us leave these issues of trying to tribalise things when we are discussing a constitutional amendment.
I want to thank Hon. Sen. Chirongoma for the contribution and the support that he gave. Hon. Sen. Chimbudzi was perfect in indicating that in Malawi there was chaos at some point and I just want to say to her, that the clause on proportional representation is actually the women who said in order for us to realise full and total empowerment in the future, let us encourage young women to participate. How do we do that? Let us say for the six, one of them must be a woman below the age of 35. The thinking is; it is inspiring if we have young women, it will inspire the other young women to join politics. The whole thinking behind these sits is to have a group of women who inspire and are role models to young girls so that they can enter into politics. I think that was the thinking which I thought was noble that if we can have these young women joining, it will be a good idea.
I thank Hon. Sen. Mbohwa. Hon. Sen. Moeketsi, I liked her argument that we are not grown up people. Our perceptions should reflect that we are grown-ups. We should give the one who has been selected or elected into power all the powers. If you see that this one is no longer doing what we are excepting, remove him from that position. There are some who mentioned that they amended this clause to ouster the yester-year President, the late Cde Mugabe. If I make a huge mistake, the blame is given on the President. Let us deal with that particular individual who would have messed up. Let us give the President the powers so that we equally blame him because we would have given him the mandate to lead.
So Hon. President Sir, these are very progressive amendments. My appeal is; we may think otherwise about certain clauses but we tried on behalf of the nation to bring a progressive Bill that will allow us to implement fully, provisions to deal with devolution. That allows us to ensure that we continue with our agenda on women empowerment, that allows us to have clarity in the governance of the country in terms of doing away with a parked provision that is also very confusing. It creates scenarios of conflict. Hon. President, unless if there are those that have specific issues, I am glad to respond to them. I move that the Bill be read the second time. I thank you.
HON. SEN. N. KHUMALO: Point of order Mr. President. Allow me to make a request and a correction. I noticed that some of our Ministers do not understand quite clearly isiNdebele. Our Minister here has misquoted me. I was not referring to this current Constitution that it has got several patches. I was talking about the previous Constitution which was left by the Whites. That is the Constitution which had several patches; several amendments, which prompted the MPs to write a new one. So, may the Hon. Minister take note of that.
The other thing Mr. President, may I request that this Hon. House brings back the interpreters so that we do not have such mistakes occurring again. Thank you.
THE HON. DEPUTY PRESIDENT OF SENATE: Hon. Khumalo, the point you are making about interpreters for everybody, I think is very important. We hope and we are sure that in the new Parliament building, that is going to be available. Your correction is noted. I am sure Hansard is going to refer to that.
HON. SEN. PHUGENI: On a point of correction Mr. President.
THE HON. DEPUTY PRESIDENT OF SENATE: Another point of order?
HON. SEN. PHUGENI: Yes Mr. President. Thank you so much for the opportunity. Mr. President, I never said the military arrested anyone, so if there is need to consult the Hansard, I wish so because I never said so as the Minister is putting it onto my account. The issue of 50:50 - whilst there is no country in the world that has it, it is a constitutional imperative in our country. Considering he had brought an amendment; I had to speak to it.
The last one is the one that I also took exception to which he raised. He wants to paint me as a tribalist and he cites that I raised the issue that there is no Vice President currently from Matabeleland. Of course, I represent that region and in the same vein, I raised the issue of women not being there in the Presidency. He does not go there because it does not suit his agenda. What he does is he wants to paint me as a tribalist so that he blacklists me in the future as someone not adequately represent the people here in the Senate. So, I do take exception to that. I raised two issues of demographic, which is not represented, which is women and the people of Matabeleland. If he has answers to that, he must deal with substantive matters which I raised and not impose tribalism …
THE HON. DEPUTY PRESIDENT OF SENATE: Hon. Senator, you may take you seat. I do not want to open a one- on- one with the Minister. What we are doing is a matter of procedure. Interpretation sometimes differs. Perception or how you view something, sometimes differs. So, I do not want to open a one- on- one. If all the other Senators were to do that, we would not go home. I urge you not to be emotional Hon. Senator. I urge you very strongly to try and be as calm as possible. This is Senate. You can also have a one- on -one with the Minister but let us be calm, “tiri vanhu vakuru.”
Do you want to have another go? I was asking whether you really want to have another go. The reason why I am saying that is because I do not think on either side of the House, there is going to be any new argument outside the issues which have already been responded to by the Minister. I doubt it. Correct me if I am wrong and I am quite willing “kana mazopedza kutaura motaura kuti chinyowani chamataura ndechipi pane zvisina kutaurwa naMinister,” so that we do not waste time; we go into Committee and proceed.
+HON. SEN. D. M. NDLOVU: Thank you Mr. President Sir. You mentioned that we must not repeat what has been said already. What I want to say is that it is unfortunate that the Minister might not understand my language. It is good for us to have the amendment with four items on the list. I am going to give an example of a young man who is proposing love to a woman. He proposes and declares his love and the woman would ask why the young man is interested in her. They will discuss and engage each other until they agree. So, there is no need to force anyone to fall in love. This example is something which is very clear even to the Minister who could have done this unilaterally but he decided to bring the issue to this august Senate. Bringing it to the august Senate gives us the opportunity to identify loopholes in the Bill. That is how we correct it. If it is a brick, it has been molded already but the explanation has been given to the builder as to what to change in that mould. Asking questions is not criticising each other but as adults, like what Hon. Sen. Moeketsi has already alluded, that we are elders and do not want to fight or force each other. We want to iron out issues in mutual agreement. I would like to say that when correcting issues; let us not do this in a manner that is like laying a trap, just like those traps that are set in order to capture wild animals. This kind of approach is not right, let us allow for different opinions and ideas so that we brainstorm issues.
We need to identify all the issues that need to be ironed out because when people highlight issues even in this Constitution amendment process, we need to be open-minded and identify things that should be removed. We cannot agree on the same points because we have different opinions and just like the analogy that I gave Hon. Minister of a young man proposing to a girl - it is not possible that a young man proposes love and the girl agrees. As a woman, you have to take your time first to determine whether the young man is right or not. If you are really interested in the young woman, then you persist until she accepts your proposal. There is no need to force her to accept your love. I am just saying that we need to discuss these issues.
I was part of the Constitution making process during the COPAC days. I was just asking myself that in a certain scenario, if a married woman has lived with her husband for three years without conceiving, then after three years she is confronted by the husband saying how come you have still not conceived? Then afterwards the woman conceives, they go for a scan and it is discovered that she is not carrying a child in the womb but a rabbit. This will be an unpalatable situation - then the husband decides that the woman should abort, there should be justification for the abortion.
We are not here as Hon. Senators to resist any proposals and it is not that we are being rude, no. We are not being rude but need to understand issues so that we agree. As a woman, I also need to understand these issues because if my son is appointed a Minister like Hon. Ziyambi then I should celebrate. When we go to constituencies and discover that women have been allocated stands and empowered, we celebrate. Hon. Minister, we need to understand as you continue explaining. You may be a Minister and more senior to me but you are still my son. So you do not have to be emotional but listen to us as your children and understand that this point is valid or not but you need to bear with us Hon. Minister. Let us not keep what is referred to as the reef knot grudge. When we came to this august House, we were so happy but we want to be happy here whether we are the Opposition or the Ruling Party, we need to be in harmony. I thank you.
*HON. SEN. CHIFAMBA: Thank you very much Mr. President. I would like to thank the Hon. Minister for the Bill that he tabled before this House. When a leg is injured, you need to apply a plaster to heal it so that you can walk again. This is how a lot of things are fixed.
I am saying that we may argue about the powers that are given to the President, if ever I am given the opportunity to become the President – I would like this power as well. I am saying let us fix this as mentioned by the Hon. Minister. I have stood to announce that I applaud the amendment to have the women’s quota increased by 10 years. My perspective is that may it continue infinitely because as women, as women an opportunity for us as women to stand and compete in constituencies is very difficult. This 50-50 is very impossible to achieve and is something that is just said, it is only lip service. When the opportunity comes for people to participate, there is a lot of tussling, pushing and shoving, women do not get a chance because they do not have the financial support or muscle to push and compete with men.
Even in this Senate when we want to vote for women into positions of influence, only men will fill this House to vote for other men. So my opinion on this issue is may this quota system be endless and continue forever and ever as this will give an advantage to the women. This is to enable the young women in this country to have an opportunity through this particular system, because they do not have the financial support to compete equally with men. We are contributing also and debating, that is why Hon. President I am saying thank you very much Hon. Minister for this amendment on the women’s quota and this particular issue that you touched on the youths. Let us not lie to each other because this 50-50 is not achievable. It is only something that we tend to talk about and not implement practically.
I am not doing this for myself but for posterity. If I become the President, I will also want to lead with those powers and even the next President. This is not for President Mnangagwa only; even those who are going to succeed President Mnangagwa will not be removed because a different President has come in. We are actually doing this for the next generations. Even in our respective political parties, whoever comes into office, this is what they will inherit and experience as President. I thank you very much and hope that I did not take much time Hon. President.
HON. SEN. MWONZORA: Thank you very much Mr. President Sir, I will just make brief comments before I go to the very new thing. Of course, in the absence of a clear 50-50 provision, an extension of the women’s quota is the next progressive thing. In the absence of anything else, a quota for the youth is of course welcome.
We have started a new philosophy that the youths are not leaders of tomorrow, they are leaders of today and introducing them into the legislature is a right step in bringing that leadership. Of course we have debated devolution, time without number and this is a very old story. We support devolution. I feel that the people who have debated the running mate clause, especially those who want it to go did not do justice to the logic of the running mate clause. Why did we put it there?
I happen to have been in the Constitution making process itself and this was one of the contentious clauses. The first thing was that we wanted to vaccinate the nation against Presidents who have a tendency of appointing useless Vice Presidents because they do not want to be challenged. So you have situations where a Vice-President is just put there to fill a post. We wanted to make the Vice-President an election issue. Here Mr. President, it is not correct that the President does not choose his Vice President. This clause says the President chooses his Vice and if more than one, chooses two but he chooses not after elections but before the elections so that the nation knows that in his absence who takes over and he designates them first and second so that you do not have a problem when it comes to succession.
The other thing we wanted to get rid of, which the Minister regrettably has reintroduced is the lottery clause. When we have two Vice Presidents, the Vice President who takes over in the event of the President leaving office is the Vice President who last acted. It is not known who it is but it is also open to manipulation. I know that I want to resign and so on. I appoint the other Vice-President whom I want to take over to act, well knowing that I am about to leave office. The introduction of the lottery clause introduces doubt in the country. There is uncertainty on who will take over. So that was the logic of the running mate. The fact that Malawi had a problem does not mean that the running mate has a problem.
What I notice the Hon. Minister doing is that he avoided those countries where the running mate clause has worked for centuries and one of those countries is the United States of America; they have a running mate system. It does not mean that they are on the ballot together it means the electorate is told beforehand who the Vice President is going to be.
I now want to go to a point which I think is really very serious. Everyone wants Zimbabwe to be reintegrated into the international community – not any Zimbabwean; not anyone who has Zimbabwe at heart enjoys the international isolation of Zimbabwe. We need to do those things that make the international isolation go away. One of the things that make it remain is the way we do our internal processes.
Mr. President, on the kind of judges, I am sure the Minister agrees with me that it will be a sad day when all the judges of the Supreme Court; all the judges of the High Court are illegal. So we want to make sure that the judges are not illegal. The amendment that has been introduced has a clause that makes the judges illegal.
First of all, Section 328 of our Constitution says, if there is a term limit but there is need to extend that term limit, that extension shall not benefit the person holding that office. The logic of that section was to dis-incentivise leaders who wanted to extend their terms. So, if you are a President who then uses his popularity to extend the term of office, the clause says you shall not benefit from that extension. If you have commissioners for example, who have a limited term of office and you introduce an extension during their term, that extension does not benefit them. If you have judges now who have term limits and you introduce an extension during their tenure, that extension does not benefit them. What the Minister had done in the original Bill, is that he left that question open and with due respect, he was correct. What the Minister subsequently did now, was to introduce another sub-clause 4, which says notwithstanding Section 238 (7), the provision of sub-sections 1,2,3 of this section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court. What you are doing Hon. Minister, through you Mr. President is; you are extending a term limit and our law says when we are extending a term limit, the incumbent shall not benefit. So this extension is unconstitutional. This extension is illegal.
Now, through this new extension, the new clause – I do not know at what stage it came into being. The Minister is basically amending Clause 328 so that the Clause 328 does not apply to judges. This is amending. Our Constitution is very clear. When you are amending a clause which deals with human rights; when you are amending a clause which deals with land; when you are amending a clause which deals with term limits, you do not amend it in the manner that you amend other ordinary clauses. It goes for a referendum. That has not been done in respect of this clause. That is why you hear people say the amendment is unconstitutional. A constitutional amendment where the Constitution says I am amended this way; when it is a clause like this, I am amended via a referendum, we must follow that. I agree with you Hon. Minister, the Constitution can be amended but it says how it shall be amended. Each clause is amended in a particular way.
Here comes another issue, in the Constitution we made it clear that when you seek to amend the Constitution, you must give notice to the people of Zimbabwe of what you want to amend. The Speaker must give notice to the public, I think for 90 days on exactly what you want to amend and call upon Zimbabwean people to put their input in the amendment. When the notice was given, the Bill was as it was saying we are giving notice that there is a new method of appointment of judges. Our thinking is that the new law operates from the time that it is promulgated. As time went on, the Minister then introduced without notifying the public, that we are protecting the current judges and these judges are going to benefit from extension of the time limit. To that end, this is a dangerous thing.
Lastly on that issue Mr. President Sir, Parliament is there to make laws for the just governance of Zimbabwe. We have a responsibility to keep within our own Constitution. We have a responsibility of stopping potential danger. Now what we have just done with this new introduction, Hon. Minister, I think I saw it on the Order Paper, that introduction is now introducing an extension of term limits that benefits the incumbent. So today it is Judges. How do we know that tomorrow it is not about commissions whose terms are limited? How do we know the day after it is not the President whose term of office is limited by the Constitution now that you have introduced in the Constitution that you can suspend the operation of section 328 which says you shall not benefit from the extension. When we did it, we were aware that those who run us, who govern us interact. I am sure the President interacts with the Chief Justice during the course of their work, interacts with the Speaker, the President of the Senate and so on. So what we wanted to avoid was you to use your interaction to extend each other’s terms and benefiting from that extension.
I have practiced law in Zimbabwe for almost 30 years and I have knowledge of the men and women who are populating our Supreme Court and Constitutional Court. I like most of them. They are nice people, they are fun and intelligent but their term of office, if it has expired, it has expired. There is no need to create special favours for people. That is the basis of our argument Mr. President Sir, that it is not necessary to go that route. Our law says if we extend your term of office while you are in office, you do not benefit. What this new law is saying is that you in fact can benefit. Maybe the Minister may not have seen it that way but it is a dangerous precedence and also now because you are introducing an amendment to Section 328 in so far as it applies to Judges basically what you are saying is Section 328 does not apply to Judges, therefore you are amending Section 328.
Having amended Section 328, it means you must follow the procedure because it says when you are amending Section 328, you amend it as if you are amending Chapter 4. Chapter 4 deals with human rights and in the Constitution, we said that the Executive does not touch the human rights of the people of Zimbabwe. When you want to change the human rights, when you want to amend that section, it goes to referendum, ipso facto. By the same fact, when you want to amend term limits you follow the same procedure. The danger is to have our Judges maybe on the basis of the majority here, continuing in the Supreme Court, in the Constitutional Court but being illegal Judges. That makes Zimbabwe a laughing stock.
Mr. President, I just also want to say the Minister may say this amendment was suggested by someone maybe in Parliament. Parliament has no right to do that. It has no right to amend Section 328 without the procedures being followed. Those, Mr. President Sir, are my submissions. I strongly feel that when it comes to the Judiciary, when it comes to the Judges, we have introduced something completely illegal.
The Hon. Minister has said that he does not think that it is a good idea that the Chief Justice be subjected to interviews when going to the Supreme Court. Here was the logic. A Judge who is suitable for the High Court is not necessarily suitable for the Supreme Court, is not necessarily suitable for the Constitutional Court. So you can do well in the High Court or you can make mistakes in the High Court and the purpose of the interview is to make you account for yourselves. Why do you think you deserve promotion when you did this and that wrong. Let us not confuse rude interviewers who are there just to humiliate the interviewee. You can still deal with that by putting rules on how people can be interviewed.
Yes, I saw I think one of the Judges was humiliated by the late Chief Justice Chidyausiku. She was asked ‘but you are alleged to have taken a bribe’. That was wrong interviewing. The fact that someone was interviewed in a wrong manner does not mean interviews are wrong. We want our people to have trust in our systems, we want our people to have confidence in the judicial systems, we want our people to appreciate that they are being led by intelligent people and that is what interviews bring. We want our people to see that these people are knowledgeable and we are being tried by knowledgeable people. That is the purpose of the interview. Now if you think that the Judicial Services Commission is not good enough, we can have a compromise. Hon. Minister, if I may suggest that the interviews be done by the Committee on Standing Rules and Orders. We interviewed some people for the National Peace and Reconciliation Commission. We did not humiliate them. We treated them with respect and the same can happen with senior Judges.
In the United States, maybe slightly different but they are still subjected to debate by the Congress. I think, in some instances and by the Senate in others. We can still also copy that, but for Judges to be taken to the Supreme Court on the whims of the President is over- concentration of power in the President. Do not think about the President that you have now. The Constitutions are not made for the angels of today but for the devils of tomorrow- [HON. SENATORS: Hear, hear.]- Let me give an example of the person you do not want to be president and that person happens to be president, let us say it is Mr. Mwonzora and he has powers to appoint judges of the Supreme Court without being taken to account. It happened in the United States of America. I think the President was Marshal or somebody. They packed the Supreme Court with their friends. How you vaccinate against that is you interview them.
So let us not open up for potential abuse by the Executive in that regard. With that Mr. President Sir, I wish to end my submissions. We have to act legally in this Parliament. Thank you.
HON. SEN. MOHADI: I humbly withdraw from making my contribution.
*HON. SEN. FEMAI: Thank you very much Mr. President. I do not think it is possible for me to continue to contribute since my elders have contributed.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I want to thank the Hon. Members starting with Hon. Sen. Ndlovu. At the risk of misinterpreting you, I heard you say that we must debate in a dignified manner that is not emotional and you gave a metaphor of a builder that if the owner of the house enquires on how you are doing your job do not get angry. I take note of your points.
Hon. Sen. Chifamba, I want to thank you for your contributions and I agree with her and when I agree with her, I also need to say that when we make reference to this Constitution ,the Constitution has an aspiration that we must have 50/50 but the electoral system in this Constitution in terms of Section 155 and 160 – makes it extremely difficult to say you can, in the recurrent state realise that. That is why I support what Hon. Chifamba was saying. In a first past the post system, it is extremely difficult. You need exactly what we are doing to empower women to compete on an equal basis.
Even the first past the post, it has its own challenges also. That is why I said this issue of electoral systems is a debate for another day. We all at some stage forgot that in this Constitution, we had given a lifespan to our empowerment programme of women. All that we did was to say perhaps we all slept. We need a discussion that will be a bit longer on the type of system that we need. Let us continue with our empowerment programme which Hon. Sen. Chifamba said let us leave it like that.
I also agree with Hon. Sen. Mwonzora that in the absence of a 50/50, change of the electoral system, I think this is the best – let us all agree with that. I agree with him that we need to encourage the youth to participate in politics, hence the need to have these seats. He gave us a history lesson on why this clause was brought about and he is right that it was contentious and that is why it was parked. No agreement within the parties and he said we wanted to vaccinate the nation against Presidents who appoint useless Vice Presidents.
In fact, this was a clause that was put in there because people were agitating to know who takes over. I think this is cured by elections every five years. Our parties are given an opportunity to select their own to be the presidential candidate. We go to an election. We do not go to an election to elect a successor. We go to an election to elect a President whom we believe by the grace of God will complete the five years. I respectfully submit that we have put provisions that will allow for the respective parties to choose.
The other one who acted will only act until the party has decided because the President is coming from a party. He says it is not correct that the President does not choose his VPs. You are right, but we are saying I have chosen today and the person that I have chosen decides that he does not want to assist me anymore, what do we do? You said this introduces a doubt in the country and you said I gave an example of Malawi and forgot other countries.
I did not forget them, I merely stated that in the structure that it is put, it does not even add clarity, save to say that what you said from your historical memory that we wanted to vaccinate people against what you term useless so that they know who is going to take over. What I do not agree with you is that the Constitution is very clear that the President must be voted jointly together with his VPs, unless if we put an electoral law that says where the name of the President appears, it means that he has chosen his Vice President.
In the current state, they are supposed to be voted together, the three of them and you put an X. That is the reason why the removal process becomes a bit difficult. It is because this person you are not the one who put him there. That person was voted by the people, hence there must be an impeachment process that involves representatives of the people which is Parliament. I think the way we did it we were so much in a hurry to know who will succeed, but an election is about us going to vote for somebody whom we must pray that the Lord gives him five more years and governs, not that when he is elected we then become too eager why he does not die so that the first Vice President or the second Vice President can take over.
On the issue of judges where you said we are trying to amend Section 328 – not at all. I respectfully differ with you. In fact, if what you are saying is correct, then to a greater extent the Constitution is contradictory. If you say judges’ tenure is a term limit – I submit that judges have an age of retirement, not a fixed term limit except the Constitutional Court judges and we have not touched the Constitutional Court judge’s term. We are leaving it at 15 years. So, judges are like any other civil servant who is told you got a job today and at 65 you retire. It is a retirement age.
My take is if you look at these judges, the section that you are making reference to does not apply except for Constitutional Court judges. Constitutional Court judges, the Constitution is very clear that you reach 70 or 15 years. If you are appointed a judge of the Constitutional Court at 40, or at 55 years whether we like you or not, you cannot be a Constitutional Court judge. If we attempt now to change that, then Hon. Sen. Mwonzora becomes extremely correct that we are now attempting to amend Section 328. I respectfully submit that this is a tenure and for acting judges, if what you were saying was correct for acting judges, it means the two provisions of the Constitution are already at cross purposes.
So, I believe that it is possible and secondly, we are not targeting any specific judges per se, but by virtue of the fact that if you appoint a judge today, they retire at 70. Surely, if they are still good – except to be a constitutional court judge, they can do other duties and it is already there. The only thing that we said administratively, you cannot sit as a Constitutional Court judge if you are over 70. So, I do not think we will be amending Section 328 then you said that we will be concentrating power on the President. I want to respectfully differ and say that this amendment does not in any way concentrate power in the President. The current clause and this Hon. Senator said that, what has been taken away is the interview process but the people who will recommend are exactly the same people who were supposed to interview. If you look at the other provisions for every Judge that the President wants to appoint, they must submit three names with or without an interview. Indirectly, the President still has the power. He can reject and request a second set. So you can see, it can end being for one Judge. He has the liberty to having six names even with the current system. So I am submitting to you that there is no concentration of power whatsoever; it is already there so to speak.
All we are saying is that what we have just taken away is to say the Judicial Service Commission, whatever you do, if you decide to have interviews there we do not know but what the President will need is a shortlist. If you are saying there is so much value in that public interview, which I am submitting does not have a lot of value, if the Judicial Service Commission wants to do its job appropriately, they can even do interviews because this amendment is not saying do not but it is saying do not beam it live. So whatever it is, the President’s powers remain the same because the very same names are still being submitted by exactly the same people. So, there is no concentration of power or extending the powers of the President so to speak. In that regard, you put in very good arguments but I think in this case, those are the only two points I turned not to agree with you, that indeed we are not amending Section 328.
Section 328 is considered in the same manner as if we are amending Chapter 4 or Chapter 16 on agricultural land, but in this case I submit that we cannot say even a magistrate has a term limit, even a retirement age but a Constitutional Court judge has.
Mr. President Sir having said that, I want to thank the Hon. Members. It was robust and that is what debates are sometimes like. It is not very personal. With your permission, I move that the Bill be now read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 2) BILL [H. B. 23A, 2019]
House in Committee.
Clauses 1 to 2 put and agreed to.
On Clause 3;
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I think there was a typo error even in the Constitution. It says in sub section 1 - by the deletion of/or Vice-President. It had an ‘and’ nor ‘or’ - so where ‘or’ appears, I think it must be ‘and’ in both a and b.
Amendment to Clause 3 put and agreed to.
Clause 3, as amended, put and agreed to.
Clauses 4 and put 5 and agreed to.
On Clause 6;
HON. SEN. MWONZORA: It talks of the term of Office of the President. It is basically after the election petition is decided but the last clause there which is (b) 2 (a), Mr. President, it says ‘as soon as the President assumes office, he or she shall appoint not more than two Vice - Presidents who shall be qualified for election as President in terms of that and who shall take oath before the Chief Justice’. I suggest that we extend that Clause a little bit to say that ‘at that point, the President must designate who the first Vice President is and who the second Vice-President is’. He has now had his choice but he must designate that.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I hear him but I am trying to think what the mischief he wants to cure is because immediately after that, we have two clauses that will be dealing with that. As soon as the President assumes office, he or she shall appoint not more than two Vice-Presidents but you want him to designate before he assumes office. That is an ad-hoc arrangement because he has not assumed office and he is designating to who?
HON. SEN. MWONZORA: The point I am saying is, when I say designate, it means the President must then announce that I have appointed two Vice Presidents, Vice President No. 1 is X and Vice President No. 2 is Y. It deals with the chain of command, the line of authority between them. The mischief that you wanted to cure was that they serve at the pleasure of the President. So, it does not matter whether he is first Vice President or second Vice President, they are serving at his pleasure. The President has designated them first and second because it then deals with the issue of authority between them, unnecessary rival between them which can be very unproductive for the nation.
If I may give you an example of the Roman Empire during the time of Julius Caesar and Pompey; the Romans had kings who ranked the same and it did not develop because they were always overruling each other. So, to get rid of that confusion, you designate the first Vice President and the other one the second Vice President, you get away with the lottery clause that is number one. Number two, also you get rid of unnecessary rivalry that can happen in the vice presidency. It is not long ago I think there was a rivalry between the two last Vice Presidents of the Late President Mugabe era; it was not good for the nation. It can be a security risk.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I hear you, his proposal is again to change the Constitution so that we say the President must appoint two Vice Presidents, it says ‘not more than’, he may choose to appoint one. So, I think in the manner it is, it is still correct. Even if we are to do that, it says ‘not more than 2’, so he may say I was within my jurisdiction to appoint one at that particular time because the Constitution allows so. So, I respectfully submit that let us leave it as it is, unless we say we are now making a huge decision to say it must be two. In which case I think it needs a lot of consultation, it is not a decision. The principles that we followed are outside my own discretion to think that way unless if it was within the parameters to say it allows given what is already there. I thank you.
HON. SEN. DR. MAVETERA: Thank you Mr. Chairman. Allow me to repeat or to emphasise what Hon. Sen. Mwonzora was saying. I think it is a very good clause for us to actually remove too much contention because what we want is certainty. Zimbabweans are peace loving, we want certainty. He gave a very good example, probably some of us, we may not have felt the same but an example of our previous Vice Presidents of this nation, that is the current Vice- President and the other yesteryear Vice President Mpoko. They were fighting in public and this is not good for the nation. We are giving the President powers to choose but he should do the nation better in the event that he appoints two Vice Presidents.
Your response Hon. Minister was he may choose to appoint one but let us actually clear that and say in the event that he chooses to exercise his maximum power which is choosing two Vice Presidents, he then has to designate or arrange them in terms of seniority so that as a country, we know where power belongs. Just imagine right now if we had two presidents, what would we do, it confuses us. So, let us not confuse the nation. We give the President the power to choose but in the event he wants more than one, he should actually arrange them in a manner that we as citizens feel at peace. I thank you Mr. Chairman.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you. What Hon. Sen. Mwonzora wants us to do is that before the President is even sworn in, he designates but we are saying there is a nine day waiting period – [HON. SEN. MWONZORA: Inaudible interjections.] –
THE CHAIRPERSON: Order Hon. Sen. Mwonzora.
HON. ZIYAMBI: If it is at any time, as soon as he is sworn in, the Bill is saying ‘as soon as the President assumes office, he shall appoint’. So, he must, without delay, do that. I think it is covered. I think it is covered. The issue of designating two, I hear what you are saying but it is extremely difficult. If say Hon. Sen. Mwonzora has been elected President and is unclear, he would simply appoint one and it will still be perfectly legal but I am saying this amendment, with your indulgence, can we pass it because I think it would need a lot of consultation. The principles of dealing with this Bill that I had a mandate on do not allow me to then prescribe all those issues. Like I said, it will be, so to speak, I know my learned colleague and Hon. Sen. Mwonzora, it is very sneaky, what he is trying to say is let us sneaky in again the running mate. As soon as he is practical, then he designates. The current structure is once he is sworn in, without delay, he appoints. It is not something that we can surely waste time on. It is perfectly reasonable the way it is. If we say it, it is like bringing it in another way, ka back door so, Hon. Chairperson. Hon. Chairperson, I move that we proceed.
HON. SEN. DR. MAVETERA: Thank you Mr. Chair. I think we have been doing very well. I submit respectful that the Hon. Minister should not give the impression that auya nechinhu chakabikwa chekuti tiite endorse. That is why we are here to debate to put wisdom in whatever he has brought to us. I think this idea of a President, I hear what he says quite clear, if he prefers to choose one, we have got no problem but after two months, if he decides because he still has the powers, if he chooses the second one, then the moment he goes on to choose the second one, he should tell us who is senior, protect us. We know we cannot re-write. We have walked the talk. We had Vice Presidents who were fighting like small kids. It is not good for us. Some of us have dignity as a nation; we are not taking any power from the President. We are saying you have chosen these two, rank them so that they operate efficiently for the benefit of the country. It is not their office, it is the office for the people. Thank you Mr. Chair.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI: Hon. Chair, let me respond. That is why in the beginning I said, the most confused provision that we ever made was this one of the running mate because it wants to entrench power in a person without giving that person real power. The simple function of a Vice President is to assist the President. Any President who chooses his assistants must be able to reign in his assistants. If that President fails to reign in his assistants, it is one of the reasons why we even instituted impeachment proceedings against the former President. So I think we are arguing about things that are taken care of. What you want us to do would mean that we need now to change because we are now specifying the first Vice President on what he does. We now need to go to the functions and say the first Vice- President does 1,2,3.
The only thing that is mentioned that the first Vice President does in this Constitution is, he will take over. That is why I said with due respect to my learned Hon. Sen. Mwonzora, it is more akin to sneaking it back. Let us allow the President, like you rightly said, give him the leeway to appoint his assistants and assign them duties as and when he wants, rather than fix the duties of a Vice President in a Constitution amendment. I thank you.
HON. SEN. MWONZORA: Mr. President Sir, I just want to assure my learned friend, the Minister, that there were no ill intentions on my part. It was within the spirit of construction and it was as a result of what happened between Vice President Mnangagwa and Vice President Mphoko. It can get even uglier than that and that is what we wanted to vaccinate.
Clauses 6 to 11 put and agreed to.
On Clause 12;
HON. SEN. MWONZORA: It has now changed. It is the one on the Order Paper. If you look at Clause 12 in the Bill, it says delimitation but Clause 12 on the Order Paper now is amendment of Section 180 of the Constitution.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): The procedure normally is; the Bill that is transmitted to the Senate will have amendments that have been effected in the National Assembly. Therefore, what the Hon. Chair is going through is the composite Bill as passed in the National Assembly.
THE DEPUTY CHAIRPERSON: Hon. Sen. Mwonzora, your Bill is the Bill before the amendment in the National Assembly.
Clause 12 put and agreed to.
On Clause 13;
HON. SEN. MWONZORA: This is the clause that deals with the extension of the term of office of the judges. My learned friend, the Minister made two concessions which are important. The first one is that interviews can still take place but they shall not be public interviews. That is a fundamental issue and I submit that we put it in the Bill that interviews will happen but they are not public interviews, because he does not want the judges humiliated by public interviews. So we must indicate that interviews will take place.
The second issue is relating to the concession that he made that the extension does not cover judges of the Constitutional Court. That means therefore when we go to sub clause 4, we must delete Chief Justice, Deputy Chief Justice, Judges of the Constitutional Court. We must delete that and say, Judges of the Supreme Court because he has conceded that the Judges of the Constitutional Court are not covered by the extension. The impression created there is that they are in fact covered, so let us just delete that.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. Hon. Chair, on interviews, I respectfully submit to Hon. Sen. Mwonzora’s view that what I was implying is those that are vested with short listing the people that are submitted to the President is the Judicial Services Commission and it is an administrative process. I do not believe that they would sit under a tree and say, let us just write 1,2,3,4. If it so pleases perhaps we may amend another Act or so to ensure that in the function of the Judicial Services Commission.
However, in the Constitution, surely to then put an administrative - I think we will be encumbering ourselves with so much detail. What I was trying to say is all that we are saying public interviews per se are not necessary but they can come up with any process that they so wish, administratively to choose. I will give you a good example, the Constitution currently does not say they must write exams but I understand when they shortlist, they first give them an exam before they proceed to public interviews. That is nowhere prescribed in the Constitution. So, I think your fears really, we can address them even after passing this Constitution. It may not be necessary for us to do that but those are done as a matter of administrative convenience.
HON. SEN. MWONZORA: Mr. President Sir, maybe before the Hon. Minister proceeds - your argument Hon. Minister, is that providing for interviews is providing for an unnecessary administrative issue in the Constitution but in Section 12, you have done exactly that. In relation to the judges of the Administrative Court and Judge President, you even said, ‘conduct public interviews for prospective candidates’. Now, I am saying that you have put an administrative issue there. When it comes to 13, there are two things that you want to do. The first thing is that you want to protect senior judges from the humiliation of public interviews; I understand and agree with you there. How will they be humiliated by a private interview? What do they lose? What do we lose by prescribing it in the Constitution that there shall be interviews although they are not public interviews because we have provided for interviews before and we can provide for interviews now? The distinction is that if you are a senior judge, you now have this dignity of being protected from the public. Please Hon. Minister.
HON. ZIYAMBI: Thank you Hon. Chair, I hear him and do not think that we gain much by prescribing that there must be a private interview. Surely when we vest authority in an institution to do the selection process, if we want to be neater and meticulous, we can then put something in regulations but not in the supreme law to say that when you are now selecting, you can do one/two/three/four. That is why I indicated that even as we speak, when they select or shortlist those who will go for public interviews, they have given them a written examination which is not provided for in the Constitution. So I am appealing that we proceed.
In terms of Constitutional Court judges, I think it is covered. We said here that if you are a Chief Justice and you have served 15 years then it is a term limit and not tenure but if you have not reached 70 years, you are covered. I think that it is very clear in the amendment; we have not tampered with term limit. So I am appealing that we proceed Hon. Chair on this one. I thank you.
HON. SEN. MWONZORA: Hon. Chair if I may - this is a fundamental clause and I just want to say to the Hon. Minister, that this is a clause which if you take it lightly and you are taken to court – it will be struck down. Maybe there is no court to take to because the same judges that seek to benefit will sit in judgment but it is my considered view that this is a fundamental clause. You are extending a term limit of people and they are benefiting. For that reason and for the record, I request division of the House on these two. We are proposing interviews and we are agreeing that they will not be public. We are also proposing that you remove all the judges of the Constitutional Court because by your own concession, judges of the Constitutional Court are not covered by the extension. So remove them and you do not want to remove, which gives us the suspicion that you in fact are covering them. You agreed during the debate that my submission regarding Section 328 would be correct if it was for Constitutional Court judges. Having made that concession, I do not understand why we should keep them there.
HON. ZIYAMBI: Hon. Chair, I do not know where we do not understand each other. If I am appointed a judge of the Constitutional Court today and I am 40 years, at 55 years I cease to be and I submit that I cannot even be a Chief Justice or a Deputy but if I am appointed, I am 68 year old judge of the Constitutional Court.
With this provision that raises the age limit, I can continue up to 75 years old – that is all I am saying but if I have already served my 15 years, I cannot. It is very clear in the amendments, it is not ambiguous. Unless if there is a certain ambiguity that Hon. Members are seeing but I am simply saying that if I am appointed and I am a young man of 40 years, I qualify to be a Constitutional Court judge and for the next 15 years, I am a Constitutional Court judge. I cannot be but if I am not and have not served for 15 years, then the age limit that we have already agreed to allows him to continue up to 75 years. I thank you Hon. Chair.
THE DEPUTY CHAIRPERSON OF COMMITTEES: Hon. Sen. Mwonzora, can I put Clause 13 as agreed?
HON. SEN. MWONZORA: No, Mr. Chairman Sir.
THE DEPUTY CHAIRPERSON OF COMMITTEES: Propose.
HON. SEN. MWONZORA: With two things - look, the Hon. Minister has agreed in this House that my submissions would be correct if they refer to Constitutional Court judges. The submission that I made about the extension of term limits, he said and it is in the Hansard - that I am correct.
Now, I am suggesting to him that he removes them then if my submissions are correct and he does not agree to remove them. I think that it is an act in bad faith; it is contradictory on his part, with the greatest of respect. He has agreed here that private interviews can still take place. We want as much objectivity as possible; we have understood that the judges must not be humiliated and we have agreed with him. What do we lose by putting ‘private interviews shall happen’? To the people of Zimbabwe, it adds more weight that they are being interviewed and they will understand that they should not be humiliated. What do we lose?
Now if this Bill goes, it will be challenged in a court of law and I can tell you that the challenge will be successful. What I am saying here at the expense of spending everybody’s time, is for us as Senate to avoid that. I do not want to be part of proceedings that I know are wrong and will be successfully challenged in a court of law.
THE DEPUTY CHAIRPERSON OF COMMITTEES: We seem to be going round and round on this one.
HON. ZIYAMBI: Maybe if I may respond Hon. Chair. Firstly, I distinguished between the tenure of judges and the age limit. In the Constitution, if you go to the Tenure of Judges, it separates Constitutional Court judges and gives them a term limit of 15 years but it also says, if you are appointed early you serve 15 years and retire but if you are appointed late in life and you reach the age of 70 years, whether you have served 15 years or not, you must retire – it is a retirement age.
So there are two issues that we are dealing with. We are dealing with a tenure that leads you to a retirement age and a term limit to say that if you are appointed a Constitutional Court judge you are very young, 15 years, you are out and what we did previously was Judges of the Supreme Court, the Constitutional Court, all the Judges, they can extend to 75 provided when you became a Constitutional Court Judge, you were old enough to the extent that you reached 70 before the 15 years had expired, but if you serve as a Constitutional Court Judge, for 15 years and by age 60, you have served you can no longer be a Constitutional Court Judge and the provision of extending to 75 does not apply because you cannot continue. So let us differentiate. What I agreed is you cannot amend Section 328. I agree, but I am saying which we have already corrected, which we have already agreed to previously. That is why I am saying I do not understand why we have to divide the House. We have already agreed on a provision to extend to 75, but we are keeping the 15 year cap as it is. So everything else will remain the same. So I am pleading that we proceed, Hon. Chair.
Hon. Chair, just one clarification. We have agreed to raise the age to 75. So I just want clarity, what is Hon. Sen. Mwonzora’s argument about Constitutional Court Judges when we have said the age limit can be raised. It is more or less like what it is couched now. It says you serve for 15 years but if you reach 70 before the expiration of the 15 years, you go and what we have passed says you can go to the age of 75 but if you serve for 15 years, you go. So I just want to understand what exactly he is saying we have done that I have conceded. I have differentiated. I never said tenure is equivalent to age limit. Even the Constitution it differentiates when it speaks about the tenure of office of Judges. It starts with Constitutional Court Judges. It clearly says that you serve for 15 years but if you reach 70 which is the retirement age, you go.
We have already agreed in an earlier amendment which was put to by the Chairperson and agreed to that we raise it to 75. Are we going to go back again and relook at what we have already done because this is closely related to what we have already passed. The only difference is that all we are saying is if you serve for 15 years, you are out, but if you have not served for 15 years, you are allowed to get to 75. I submit Hon. Chair.
HON. SEN. MWONZORA: Yes, Hon. Minister I hear you. Now if you are correct, if you are to proceed that way, then we delete Clause 4. If you have raised the age limit to 75, then you delete Clause 4.
THE CHAIRPERSON: Probably you have to explain why.
HON. SEN. MWONZORA: The Clause 4 is saying not withstanding Section 238 (7). Section 238 (7) is the one that says you do not benefit from an extension of a term limit and what he is arguing is that it is an age limit not a term limit. So if he deletes that, he will avoid the following, ‘notwithstanding subsection 7 of Section 238, the provision of Section 1, 2, 3 of this section shall apply to continuation in office.’
Continuation in office is extension. This is the clause, Hon. Chair that if it is taken to court, will go against him because that is a continuation of a term of office. You are extending a term of office which you cannot do. If he is extending an age limit now, then he does not need that and he avoids litigation. I think the lawyers there must help.
HON. ZIYAMBI: Hon. Chair, I was consulting the drafters. Hon. Chair, the reason why this was put in was for clarity. Already we were divided, others confusing tenure and age limit, term of office and tenure term of office being one 5 year term, two 5 year terms and 15 year term for Constitutional Court judges. So, the crafters really wanted it for clarity’s sake - but to be very honest, it is not amending Section 328 of the Constitution. That is my reading of it.
HON. DR. SEN. MAVETERA: Mr. Chairman, my very few years I have witnessed this august House that what had been passed being taken to court and challenged and giving firm to some people like we were sleeping on duty. I actually have a problem personally and what the Hon. Minister has said in terms of differentiating term limit as years and age as not term limit – it is subject to interpretation. My understanding of this clause is if we say term limit - if we are saying for how long can you continue exercising your obligations under the contract you have been? We are told it is either you get out when you get to a certain age or you get out when you have fulfilled four many time periods.
So, the term limit is actually defined by two words. Both of these need term limit, that is one point which can be taken and presented to the court for interpretation. We made 50/50, so why should we seem like we are sleeping on duty, passing something which is controversial? Why do we not crystalise it and come out with a law? I do not think there is much difference here, but we are saying why do we want to give people outside strength to say they have done something illegally and they have done this? I think we need to protect the integrity.
Some of us and all of us even in this august House have got our integrity and from my point of view, we are not differing but we want to come up with something. What is happening outside is that most of us have heard the uproar. They are thinking that some things like if you go a little bit back, the interview clause, people are now just thinking we are drinking in a pub and you say now you can be Chief Justice. That is what the lay person outside there is thinking. If we say interview, not public, they will know that they are still protected and what we want is to protect the respect and the integrity of those courts which we will have established.
So, I think there is no reason for us to rush because this thing is going to be challenged. There are people outside there because we are not plucking on those potential. We see it and we leave someone. How about if it is interpreted and they turn out to be right? We are seen like we are sleeping on duty. I respectfully submit Mr. President that we need to interrogate this because we cannot just pass this. It should be crystallised and made easier for us so that we pass as we vote, or else as we pass this law, we are all convinced that we have passed a water-tight law which is not subject to any attack from any angle. I thank you.
THE MINSITER OF JUSTICE, LEGAL AND PARLAIMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chairman. I hear Hon. Sen. Dr. Mavetera and his concerns. That is democracy the Constitution allows that as a safety valve in the event that we may err. I hear your arguments which are very sound. We need to agree, but sometimes agreement and interpretations may be different. My understanding is that we are saying more or less the same, he is saying for clarity’s sake let us expunge it and I am saying the reason it is there is so that the interpretation philosophy will take away the thinking that we were trying to amend Section 328. He is saying no, let us not have that. Having said that, I think Hon. Chair let us report progress because it is already a Quarter to Seven.
Committee to resume: Wednesday, 28th April, 2021.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the Senate adjourned at Twelve Minutes to Seven o’clock p.m.