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SENATE HANSARD - 14 MAY 2013 VOL. 22 NO. 17

PARLIAMENT OF ZIMBABWE

Tuesday, 14th May, 2013.

The Senate met at Half-past Two

O'clock p.m.

 

(MADAM PRESIDENT in the Chair)

ANNOUNCEMENTS BY MADAM PRESIDENT

INVITATION BY WOMEN IN POLITICS SUPPORT UNIT

MADAM PRESIDENT: Women in Politics Support Unit are inviting all members of the Women's Caucus, to a workshop on feedback from the G20 which will be held at Kadoma Hotel and Conference Centre, from the 29th of May to the 1st of June 2013.

I also wish to thank those male Members of Parliament who were brave enough to come and support us.

VISITORS IN THE SENATE GALLERY

I have to acknowledge the presence in the gallery of hon. members and officers from the Standing Committee on Rules, Privileges and Discipline from the Parliament of Uganda - you are most welcome.

SWITCHING OFF OF CELLPHONES

May I remind hon. senators to switch of their cell phones or put them on silent.

MOTION

LEAVE TO MOVE SUSPENSION OF STANDING ORDERS NO. 22 AND 98

THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS (ADV. MATINENGA): I seek leave of the Senate to move that the provisions of Standing Orders No. 22 and 98, regarding the automatic adjournment of the Senate at five minutes to seven o'clock p.m. and at twenty-five minutes past one o'clock p.m. on Fridays and stages of bills respectively, be suspended in respect of the Constitution of Zimbabwe Amendment (No.20) Bill [H.B.2, 2013].

Madam President I do not think I need to give reasons why this leave is being sought but if it is required, you will appreciate and hon. senators will appreciate that we are at a historical cross-roads and we need to address this Bill and if possible to move as fast as we can to its final conclusions, that is the reason for this leave.

MOTION

SUSPENSION OF STANDING ORDERS NO. 22 AND 98

THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS (ADV. MATINENGA): I move that the provisions of Standing Orders No. 22 and 98, regarding the automatic adjournment of the Senate at five minutes to seven o'clock p.m. and at twenty five minutes past one o'clock p.m. on a Friday and Stages of the Bills respectively, be suspended in respect of the Constitution of Zimbabwe Amendment (No. 20) Bill [H.B.2, 2013]

Motion put and agreed to.

 

SECOND READING

CONSTITUTION OF ZIMBABWE (NO.20) BILL [H.B. 2, 2013]

First Order Read: Second Reading: Constitution of Zimbabwe Amendment (No. 20) Bill.

THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS: Madam President last week I was before the National Assembly and I had the pleasure of reading my second speech to that august Assembly. During the process of that speech, I made reference to the rebuilding of Jerusalem by the Jews as recounted by Prophet Nehemiah. Madam President that analogy equally applies to members of this august House. The majority of us know that in the first chapters of this book, the Jews painstakingly rebuild the fallen walls of Jerusalem. Each and every one of them was determined to participate.

For 33 years in this country, the Supreme law has been a ceasefire document negotiated at Lancaster House, England in 1979. The desire by Zimbabweans to write a new Constitution by themselves and for themselves started in 1999, agitated in the main by the National Constitutional Assembly.

The process of writing a Constitution has been long and arduous. We failed to agree on a new Constitution in 2000. We soldiered on nevertheless. The process gathered momentum as the years went by. On 15th September 2008, the three main political parties represented in this Senate and Government signed a Global Political Party to address the many ills facing the country. In my submission Madam President, the cornerstone of the GPA is the provision for the writing of a new Constitution for Zimbabwe by themselves in an inclusive and transparent manner.

In the past four and a half years, the people of Zimbabwe, just like the Jews in the time of Nehemiah, have painstakingly participated in the production of the Bill I present before you today. The crowning achievement in this processing was the 'Yes' vote in the Referendum on 16th March, 2013. I stand before you Madam President and hon. senators to ask, in all humility, to transform the Referendum result into law by passing this Bill. A lot of you will be aware of the New Testament story of the coltwhich was freed and joyously road into Jerusalem with Jesus on its back.

The passing of this Bill by this Senate marks our passage into a new Zimbabwe. Madam President, I am not going to traverse the details of each Chapter in this Bill. Hon. senators will be aware of its various provisions. Before I do so, it is proper that I make reference to the very important and critical stages in the process leading to this occasion.

1) A Parliamentary Select Committee to spearhead the Constitution making process was appointed in April 2009.

2) A First All Stakeholder Conference was held on the 13th and 14th of July 2009. This Conference set out the parameters of what was going to be followed and what I believe was then critical is the writing of this Constitution.

3) Public consultations on the Constitution were conducted from June 2010 for a period of 95 days, what we colloquially refer to as the outreach programme.

Madam President, out of these outreach programmes, a total of 4 943 meetings were successfully conducted and a total of 1 118 760 people attended these meetings. At these meetings 416 272 were males (37%), 441 238 (39,44%) were women, again seeing the ascendants of women in the interest in the political governance of this country, 252 240 were youths and 8 020 or (0.72%) were people with special disabilities. I also wish to mention at this point that special outreaches were conducted for children and Members of Parliament.

There was a special outreach for Parliamentarians, not because that they could not understand what was happening at other meetings, but because Parliamentarians were actively involved in the outreach programmes. It was therefore necessary that a special time is set in order to carry out an outreach specifically for these people.

Madam President, the next stage was then to collect all the views, which had been gathered in the outreach and after collecting all these views and analyse them. The Select Committee produced a draft Constitution on 17th July 2012. The draft was debated at the second All Stakeholders Conference in October, 2012 and delegates at that Conference made extensive comments to that draft. A series of meetings were then held between November 2012 and January 2013 by COPAC, Management Committee, the Cabinet Committee of Seven and eventually the Principals to the GPA to resolve the outstanding issues.

I point out that the meetings culminated in the successful resolution of all outstanding issues and the production of a draft on 31st January 2013. This draft, again consistent with the GPA, was subsequently adopted by Parliament on 7th February 2013. This was followed by the proclamation of 16th March as the Referendum date by the President. Madam President, after the adoption of the Draft Constitution by Parliament, my Ministry and COPAC embarked on public awareness campaigns to explain the contents of the Draft to the generality of Zimbabweans.

I am sure that the senators in this august Senate were doing the same in their respective areas of influence. A Referendum on the acceptability of the draft was successfully held on Saturday 16th March 2013. The people of Zimbabwe overwhelmingly approved the draft Constitution.

I then go to look at selected chapters in this Constitution. I am not going to address chapter by chapter in this Senate or verse by verse, but I will obviously speak to certain important chapters and make reference to certain important provisions which need to be spoken to.

Madam President, hon. senators, you are all aware that the current Constitution which we have, the Lanchaster House Constitution, does not contain a preamble. This draft which is before you contains a preamble and this is not just about form, this is about substance because a preamble is important. It tells us where we are coming from, where we are and where we are heading. I just want to say a few words about the preamble in this particular draft. This preamble tells us that we are a diverse society, we are a rainbow nation of some sort but we are one country.

It tells us that we recognise our history shared by our heroic resistance to all forms of domination and oppression; it tells us that we want good transparent government, respecting fundamental human rights and the rule of law. When one looks at this preamble which is at page 15 of the draft, it speaks to fairness. What the people of this country want Madam President, is fairness. But importantly this preamble, as it should and properly so, puts God first. It recognises the supremacy of God.

Madam President, I go to Chapter 1. For those who have got the Draft before you, Chapter 1 is on Founding Provisions or Founding Principles and it is on pages 16 and 17.

Importantly, let us look at Sections 1, 2 and 3. When you look at all these three sections and you go back to the Preamble, you may well agree with what I said earlier that the Preamble sets the stage for everything which is set out in our Constitution.

We go to the issue of languages in Section 6, at page 17. This is one of the most important introductions in a Constitution in our country in this era. Madam President, there is nothing as beautiful as one who reads a Constitution in his or her own language. What this Constitution does is to recognise this basic element that you need to understand your Constitution but before doing so, you need to read that Constitution in a language that you understand. This Draft makes provision for that.

Madam President, later on I will be talking about the culture of constitutionalism. In Section 7 of Chapter 1, there is an obligation placed on the State to promote public awareness of this Constitution. Madam President, it is only when people become aware of their Constitution that they begin to respect it. It is important that we place this squarely on the State as one of its obligations.

The second chapter deals with National Objectives. What are the values of Zimbabwe? What do we wish to do? What do we aim to do? The Chapter on National Objectives, again taking from the Preamble, addresses the issue of good governance, national unity, peace and stability, foreign policy, national development, empowerment and employment creation. It sets a stage on which Zimbabwe must perform. It sets a stage on which us Zimbabweans must be able to say, we have set this task on ourselves and we are going to perform in accordance with these principles.

Madam President, I go to citizenship. The issue of citizenship in this country is an issue which has caused some considerable problems. Sometimes we say this has not been because we did not have the laws but it has been about the implementation of that law. Be that as it may, we have sought in this Draft to make sure that the law is made as clear as possible so that we do not have any persons alleging that there is no clarity in that regard. The first point to make is that this Draft recognises that citizenship is in three parts; by birth, descent and registration. Let me refer briefly to some of the important details in our citizenship law.

1. Citizenship is now gender neutral. You do not have to wait for Mr. X if you are Mrs. X to go and exercise your citizenship or the citizenship of your children.

2. Importantly, we have also introduced a provision which caters for abandoned children. You see a lot of children running around, some of whom can no longer be able to say where they come from. Therefore, we have said that if someone is below 15 years, that person is a citizen of Zimbabwe by birth.

3. Citizenship is not lost through marriage or dissolution of marriage.

4. Citizenship cannot be revoked if it makes one stateless and this is important. A citizen by birth cannot lose his citizenship no matter the circumstances. If you are a citizen by birth in Zimbabwe, go and have a good time in America, South Africa and wherever but kana wafunga dande tinoti dzokera kumba umwe. Your citizenship is not lost no matter what.

Importantly, Madam President and hon. senators, let me refer to Section 43. This section is important. It refers to the continuation and restoration of previous citizenships. It touches on the issue of those people who were sometimes described in very derogatory terms, sometimes as totemless. Most of them are people who were born in Zimbabwe and who know no other home but Zimbabwe. Section 43 of this Bill regularises their position as citizens by birth in Zimbabwe.

Let me now go to the Bill of Rights. Madam President, for those of us who have tried to make a comparative analysis of the Bill of Rights in this Bill and other constitutions, it is quite clear without any shadow of doubt that this Bill of Rights is one of the best. This Bill of Rights compares with any other in this world. Why do I say so? Madam President, the Bill of Rights in the current Constitution addresses what we call political and civil rights. The current Bill of Rights which we have introduced in this Bill is very expansive. It addresses what we call socio-economic rights, cultural rights and environmental rights. Wherever you go in any civilised country, you can move around with your Zimbabwean Constitution and feel proud that my Bill of Rights compares to any in the world.

Madam President, I want to address the religious sector. I believe there is some misconception as to what this Bill says about two things; about abortion and same sex marriages. This Bill does not allow abortion on the take. Currently, we have got legislation, the Termination of Pregnancy Act. This legislation is addressing the very same issues which are being raised by the persons in the religious sector. Their position is fully covered.

Let me go to the issue of same sex marriages. Madam President, this issue is addressed in Section 78 of this Bill. Importantly, when one looks at Section 78 of this Bill, one must also look at Section 56, which is the equality and non-discrimination clause. It is important because when people argue that this Bill seeks to legalise same sex marriages, they have not gone to Section 56 which is the equality and non discrimination section and then compare it with the South African Provision. The critical difference between our Section 56 when one does read and the South African Provision is that in the South African Provision, the issue of sexual orientation is protected. This is not our Section 56. A reading of Section 56 and then 78 of our Bill, which clearly outlaws same-sex marriages, in Section 78:3, put the concerns raised safely to rest.

Madam President I come to Chapter Five, which is the Executive and Executive Authority. I want to say five things on this Chapter and I want to particularly refer to two very important new aspects introduced in this Chapter. The first one is that, now we have got term limits. You are voted into power for the first five years; you can be voted into power for another five years. After that, that is the end of the story. No matter how much you can dance in the street, you just do your maximum 10 years.

Number two, there is a novel introduction. It has not yet started but it is good that we introduced it in this Constitution; the provision for a running mate Clause. For some of us, maybe we will not be caught up with this phrase because this running mate Clause will only come into effect after 10 years. However, it is important that we have come to accept it and introduced it in our new Constitution.

When you decide to run, you then decide, who amongst your friends can be your number one and number two as first Vice President and second Vice President. Those are your running mates. When something happens to you there must be some certainty that running mate number one becomes the President. We know, Madam President and hon. senators, how we have had to experience violence in our elections. This particular introduction of a running mate Clause will bring certainty and make sure that we are not then exposed to such issues on a routine basis.

Madam President, depending on which paper you read or where you come from, there is talk about; these people did not address the issue of Presidential powers; imperial powers, they call them. Then we have the other side where they say, well there are no imperial powers to speak about. Yes, we politic on this issue. The truth of the matter is that somewhere in between, we have managed to introduce proper checks and balances so that we clearly are able to say that we are a Government which respects the three arms; the Executive, the Legislature and the Judiciary. Where do we find this? The declaration of war. The President can declare war, but when he does so, he must go and report to Parliament. If Parliament is not happy, the President can be forced to withdraw from that unjust war that is number one. Secondly, dissolution of Parliament, you can imagine a situation where the President says, this Parliament is not playing ball, I will dissolve it tomorrow. This particular Bill says, yes you may do so, but a person can take up the decision on review with the Constitutional Court. So the issue of checks and balances has now been taken aboard and provided for.

I come to the Legislature, us, I think, before I even speak to this chapter, there must be a round of applause from the women, supported by their husbands on this particular section and supported by all senators. Madam President, in addition to the 210 National Assembly seats, which again can be contested by women, there is an additional 60 which cannot be contested by men - [HON. SENATORS: Hear, hear]- We go to the Senate, which is made up 80 members, 60 of those are going to be elected through proportional representation. Here is the beauty, it is going to be on party-list system, women first, men following. I also want to say that, it is only this Senate that we have properly provided for two seats, for the disabled. I think it is important that we made a start-[HON. SENATORS: Hear, hear]-

Madam President, our elections. Yes, we know that we hold elections, every five years maybe. Maybe at even shorter periods, but what we have impressed in this document is that our elections must be free and fair - [HON. SENATORS: Hear, hear]- They must be free from violence and importantly; this is an issue which we are discussing, importantly, we have also said there is an obligation on the State to make sure that everybody who wants to be registered as a voter has been facilitated to register as a voter. We all know too well, that it is not about the law but it is about how we implement that law; it is about how we relate to that law. I will speak to the culture of Constitutionalism later in my address.

We come to the Judiciary and the Courts, Chapter eight. The only new introduction in this is the establishment of a new Constitutional Court. The reason was that, we are introducing a new dispensation, and there is therefore need for a Constitutional Court which will interpret this Constitution and seek to uphold those values which we have introduced in this new dispensation. It is important that we look again at Section 180 of this Bill. Section 180 speaks to the appointment of Judges. What is important is that the appointment of Judges is now going to be done in an open and transparent manner. What must be done, I am reading Section 180, 'the positions must be advertised, the President and the public can be invited to make nominations -[HON. SENATORS: Hear, hear]- Public interviews will then be conducted of the prospective candidates. Then a list is prepared of the nominees which are then submitted to the President for his formal appointment'. This same transparency is also shown when you go to look at the manner in which members of our independent commissions are to be appointed. I will not say any more of that, I will say more when I come to that Chapter.

We come to principles of public administration and leadership in Chapter 9, Civil service in Chapter 10. What is important in both of these chapters, is that there is a certain type of behaviour, conduct, professionalism and value system which we have incalcated in persons who man these institutions. There must be a non-partisan approach to one's work, competence and professionalism. We say, whatever you do, must not in any way interfer with the freedoms of another person. Whatever you do must be to enhance the rule of law.

We come to Chapter 11, which deals with our security services, it starts at page 84. There is nothing new in respect of what we consider as our security services. However, I think there is something new in Section 208 where we set out the conduct we expect of members of our security services. This is the following, I am reading from Section 208 (2), 'Neither the security services nor any of their members may, in the exercise of their functions -

a) act in a partisan manner;

b) further the interest of any political party or cause;

c) prejudice the lawful interests of any political party or cause; or

d) violate the fundamental rights or freedoms of any person.'

Madam President, what I read as applying to the security services equally applies to employees in the public sector. You can see it going back to the very Preamble, which I referred to and read out in the introduction to this address.

We come to what we call institutions which combat corruption and crime, your Anti-Corruption Commission, and a very important introduction, 'the National Prosecuting Authority.' Madam President, it was important, if not imperative, that a new prosecuting agency is established in this country. We still have the Attorney General's office, but it was felt, and properly so in my submission, that when one has regards to where we are coming from, where we are and where we want to go, there is need for us to establish this agency. It is going to be solely responsible for the prosecution of criminal matters. Madam President, this Bill sets out this institution so that, never again must people perceive that there is selective prosecution or arrest for that matter. This institution must also seek to govern this process in a proper non-partisan manner.

We come to Chapter 14, Provincial and Local Government, the Chapter dealing with devolution. I think it is important for hon. Members to acquaint themselves with the Preamble in Chapter 14. We have heard so many stories and comments about how Zimbabwe is being balkanised. We are going to have 10 little countries within Zimbabwe, it has been said. When we look at Chapter 14, at that Preamble, you will realize that what is being said is simply not true. The reason why Chapter 14 comes into existence is clearly set out in Section 264. If anything, devolution is meant '…to preserve and foster the peace, national unity and indivisibility of Zimbabwe.' I am reading at Section 264(2)(c).

Madam President and hon. senators, there are two issues which are of importance in this devolution Chapter. Firstly, there is the election of the Chairman of the Provincial Council. I use that word deliberately; it is not an appointment, but an election of the Chairperson. Number two, is the provision for the election of 10 members to each Provincial Council. Yes, hon. Members of the House of Assembly and hon. Senators are Ex-officio members of this Council, but there are 10 elected members, again on a party list system and the rest follows. It means that we have got persons who are directly involved and who directly sit to look at the affairs of that Council and nothing else. To that extend, Madam President and hon. Senators, the issue of devolution will enhance the development in those areas and seeks to enhance unity in the country.

Traditional leaders, I hope Chief Senator Charumbira is here because he has been continuously phoning me on when this debate in the House of Assembly or Senate is going to be done. I hope he is here because Chapter 15 recognises and gives respect to our traditional leaders. One of the difficulties we have had is that, at various stages in our history, traditional leaders have been manipulated. We want to put a stop to that. We are saying, in this Bill, traditional leaders are an integral part of our society, they must be respected. However, we also in turn, ask that they respect their subjects, because for every obligation in law, there is a duty.

Madam President, let me come to Chapter 16, Agricultural Land. In the current Constitution, the right to agricultural land is contained in the Bill of Rights, so there is no distinction between ordinary property and land. In the current Draft, it was clearly felt and properly so in my respective view, that it is necessary to address the issue of agricultural land separately. However, what is important in respect of this Chapter, is that the entrenchment which is enjoyed by the Bill of Rights Chapter 4, equally applies to Agricultural Land. What is also of importance is that, this Chapter protects the occupier so that the occupier is not willy-nilly removed from that piece of land.

As with any other Constitution, we have got a Finance Chapter, which deals with how the issues of finance should be dealt with. There is also a Chapter dealing with supplementary provisions and so on. Before I go to the conclusion, let me address the issue of how this Constitution is amended. There is the generally accepted manner of amendment, which is a two thirds majority. This is still part of the law if we are going to amend any other aspect of this Constitution, it is basic. However, there are certain provisions which are entrenched, Chapter 4 provisions, which is the Bill of Rights, Chapter 16 provisions, which is Agricultural Land and provisions which deal with terms of office. Whilst on terms of office, I know I made reference to Presidential terms of office but this is expansive in this Constitution. Your Commanders of Security Forces have got terms of office, your Independent Commissioners have got terms of office, your Constitutional Court Judges have got terms of office. The reasoning is simple. If you know that you are going to serve five years and that is it, then in all likelihood you are going to do your work properly without having to look behind you because the person behind you also is going to do a shortened term; he is not going to be there forever.

So, you address the issue of patronage in this regard. In respect of these provisions, firstly, you must have your two thirds majority. That is step number one. Step number two, you must go to a referendum, step number three, when you are seeking to amend, maybe the Bill of Rights, you cannot seek to do that in the same amendment when you amend term limit, nor can you have the same referendum when you are doing that, so, it is seeking to make these provisions as difficult as possible because we appreciated that these are the provisions which are abused most. Madam President, yes, in terms of term limits, you may succeed in going through all these difficult stages but the Constitution says, you are a smart person and you have been able to do that but you will not benefit from that amendment. At the end of the day you realize that it is not worth the effort.

Madam President, let me conclude. I am proud to be associated with this Bill and I am sure that you and all the members in this Senate are also proud. However, having a good Constitution alone is not sufficient. It is of paramount importance that we respect the Constitution and the laws made in terms thereof. We need to develop a culture of constitutionalism. As all has been said, a good Constitution does not on its own deliver an election free from violence. As I alluded earlier, the passage of this Bill represents a collective triumphant march into a new Zimbabwe. Whilst I may not agree with every aspect of this Bill, I am one to concede that this is overally a good Constitution, a Constitution worthy of all our support.

The Constitution process took a long time. Despite the time taken, persons and institutions were committed to its final conclusion. I thank you Madam President and hon. Senators for the part you played in the process. In particular I want to thank the Select Committee, co chaired by the indefatigable Hon. Mwonzora, Mangwana and Mkhosi. I wish to thank members of the Management Committee, for their tireless effort, at no extra pay or remuneration, in the production of this Bill. I extend my sincere appreciation to UNDP and to the many development partners who provided material support to this process. I want to thank the drafters, Judge Chinhengo, Brian Crozier and Mrs. Priscilla Madzonga for a job indeed well done. I want to thank the people of Zimbabwe and the leadership of political parties and government for their continued support.

Last but not least, I want to thank the staff in my Ministry for having been present every time and for the process as well. Finally, Madam President, we could not be here but for God's guidance. In the Roman Catholic Church there is a Chorus which goes, 'Handigone kukutendai zvakakwana'. We simply cannot thank God enough. We need to acknowledge, in humility, that we are where we are today because of His Grace. Madam President I thank you.

Madam President, I move that the Constitution of Zimbabwe Amendment (No. 20) Bill, be read a second time.

SENATOR S. K. MWOYO: Thank you Madam President, hon. Senators. Madam President, this is a historic day for our liberated and sovereign State of Zimbabwe. We are about to seal the authorship of a new supreme law of the land, universally called the Constitution. Its passing by this august Senate will pave its way to State House for the President's assent. Madam President, this Constitution Bill is a product from the people of this great land. It is home grown and smells of no external ingredients.

The people of Zimbabwe exercised their God given rights to express themselves as per the outreach programme navigated by COPAC as to what type of Constitution they wanted. The people spoke loud and clear, hence this product. In Latin, Madam President, they say vox populi vox Dei. The voice of the people is the voice of God. Who can then challenge God by departing from the terrain people traversed? The people have spoken, full stop.

The Lancaster House Constitution, as we have all known, has been the supreme law of the land for the past 33 years, albeit with some amendments over the years. It was a compromised document but it is now, as I feel, destined for burial. There will be no mourning period over it for its demise is not untimely but long overdue. Madam President, Hon. Minister Matinenga has eloquently spoken on all the chapters enshrined in this Constitution Bill.

I am very elated that the Constitution Bill enshrines the nobility of our liberation struggle. It also clearly takes cognisance of our land reform programme as irreversible and our march to economic emancipation quite certain which places our women folk in good stead. Madam President, it is not my intention to repeat what we have listened to from Hon. Minister Matinenga. But let me say this, as we debate this Bill, the nation is anxiously waiting for its speedy passage. We must not allow that anxiety to transform into frustration through uncalled for delays and borrowed procrastination. The destiny of this great land is in our hands and indeed in our heads as well. Let the Bill therefore, pass without any equivocation. Let our names be recorded as part of this historic moment. Hon. Minister Matinenga has indeed done justice to the Bill by manner of presentation. Let us give him full support by ensuring that the Bill sails through today. I thank you.

MADAM PRESIDENT: Thank you for your contribution hon. S.K. Moyo. We need to pass this so that it can go to the Lower House today.

THE MINISTER OF STATE IN THE PRIMEMINISTER'S OFFICE ( MS. HOLLAND): Thank you Madam President, just to say congratulations to Hon. Minister Matinenga, for this brilliant document and to thank you for the work that your ministry has done for the past four years and to actually thank you even more for the inclusion of Part 6, which is the establishment of the National Peace and Reconciliation Commission, which is the core of the GPA, which brings Zimbabweans together. I want to say to all Zimbabweans, that this Commission, really is one that is there to ensure that Zimbabweans work together and really bring life to the entire document.

I just want to say to our men the way that the women have been put in this document, the entire process of the GPA is the one that attempts to bring us and our culture to life as it is in 2013. And that there is no threat in the process of bringing the numbers of women in the entire political process to be equal. There is no home in shona and Ndebele culture that functions without women. Musha ndi mai. That is what our men have actually made as a proverb in our society. I am appealing to our men to embrace the inclusion of women in many numbers because the most beautiful thing about African culture is the inclusion of everybody in our society; which really got disturbed by the settler colonial process when we got divided up and excluded and marginalised. In this process of post independence, the inclusion of everybody in every process will come to be. I think Minister Matinenga, I really would like to thank you for everything. Madam President, thank you for this opportunity for putting this little bit in the whole process.

MADAM PRESIDENT: I am appealing that we end there because each one of the people who have spoken were representing their parties. I am assuming Chief Musarurwa will be representing the Chiefs. This needs to go through today so that it can go to the Lower House so that it becomes law tomorrow.

THE MINISTER OF EDUCATION, SPORT, ARTS AND CULTURE: Thank you Madam President, I can assure you I will be very brief. Madam President, I cannot usefully add much more to what Minister Matinenga has said. I fully subscribe to what he has said regarding the merits of this Constitution and the process which was used to arrive at it. That is why I and all the members of the party I belong to, fully supported it in the Referendum and campaigned rigorously in the Referendum and we will support it today. Having said that Madam President, I will raise three cautionary remarks with regard to it. Minister Matinenga has touched on one of them. Madam President, those of us who know the Bible well, I am sure the dictates of Romans 3, which in essence says that "man and ridden to that woman has sadly an inherent bias to do wrong". It is called the sinfulness of man in Christian terms. Constitutions are there because of that, because man and woman cannot be trusted with power. If you give any person, of any race of any gender unfettered power, sadly history shows that they tend to abuse that power.

That is why the separation of powers, that we have seen in this Constitution, and the balancing of powers, and the greater balancing of powers, are very important. Because the Constitution is not designed to for those of us who are in power today, it is designed for the future. This Constitution does make an advance of what we have got. There is greater separation of powers, there is a better balance of power. If I had any criticism and that is the caution Madam President, it is unfortunately, something I feel that does not go far enough.

With particular regard to this honourable House I would prefer to see more powers given to this Hon. Senate, but we cannot have everything. But it is a cautionary remark Madam President, and I subscribe to what Hon. Matinenga has said that this remains merely a body of words. It now needs our collective role to give spirit to it. To ensure that it does not in fact keep us in check, but future generations as well. That will come through a full interpretation and implementation not just of the letter but of the spirit of this document.

The second cautionary remark I will make regarding the issue of devolution. Devolution is respected in this Constitution and is a very important development in our Constitutional history. Madam President, as you know, I come from the South West of this country, part of the country which is dry in terms of its climate. But it is also Madam President, an area that is underdeveloped in my current role as the Minister of Education when I see the number of schools and roads in that part of the country compared to other parts of the country. Devolution is an exceptionally important aspect of this Constitution which I think can play a positive role in binding our nation and bringing about better equity. But the cautionary remark I make is that, unfortunately, Madam President, it was a product of the compromise. The caution is the size of the bodies that we have created and the cost to the fiscus that it is going to entail and we need to be innovative as we implement this to make sure that in achieving this goal of devolution, we do not make it so expensive as to undermine the idea behind it.

Madam President, the final cautionary remark I make is, with the specific understanding that I am the only, I believe, white in this hon. Senate today. Madam President, I am fully aware of the history of this nation and the pain that has been caused to this nation by past discriminatory practices and injustices that flowed from there. Sadly, Madam President, much of the poison created by that injustice persists in our nation today and we need to get rid of that poison and move on to a better dawn, to a new era where we do not look at the colour of people's skin or their religious background.

Madam President, I believe this document does make a considerable step forward in drawing a line through that sad history of our nation in that it recognises that - [HON. SENATORS: Inaudible interjections] -

MADAM PRESIDENT: Order, Order hon. senators, a member has a right to express their opinion on any subject that is to be debated in this Senate.

THE MINISTER OF EDUCATION, SPORT, ART AND CULTURE : It recognises, Madam President that any person born in this country whose parent was not a citizen, is entitled to a fundamental right of citizenship. In section 289 (2) even regarding the contentious provision regarding land, it recognizes that all people, irrespective of their race or background are entitled to land. That is a very important step Madam President.

The cautionary remark I make and it is a very specific precaution concerns section 723 (c). I have agreed to it and I will be voting for it. Madam President, you know that it is the provision that says "discrimination cannot be raised as a ground to object to an acquisition of land". The problem that we face regarding that in the future, can go way beyond discrimination based on race. If you look at section 56, it mentions all sorts of different grounds which you cannot discriminate, including gender, sex and I believe that if there as any serious flow in this Constitution, it is that provision. It is there, it is going to be part of our law but I believe that we need to have a collective war to ensure that our policies in future are not discriminatory, even if that provision is there, that we try to draw a line in the sense of what is happening, that we move on from the crisis of the last fifty or sixty years in our country. And that we use this Constitution as a positive document so that all of us have a future for ourselves and our children.

My children are committed to this country, they support this Constitution and if we look at countries throughout the world, the strongest countries are those where all its people believe in the country, believe passionately in its Constitution, in its national anthem, in its flag and that is what we need to strive to do.

Madam President, with those few remarks in the context of me being a lawyer and politician, I am honoured to be here today to support this law.

*SENATOR CHIEF MUSARURWA: Thank you Madam President for affording me this opportunity to make my contribution on the new Constitution of the country of Zimbabwe. This is a Constitution which we are going to use from our current position to our next generation.

Firstly, I would like to thank the people of Zimbabwe for putting their heads together and making this Constitution and it is our obligation to see that this Constitution is turned into law and forget about the Lancaster House Constitution. I would like to thank all those who have put their efforts into this. I would also like to thank the Parliament of Zimbabwe for working hard and all those people who worked so hard to draft this Constitution. Above all we have to thank the Lord above who gave us the wisdom to pass this document.

I would like to look at Chapter 15 which talks about the Chiefs, because all along, we have been working under the Traditional Leaders Act, we were not included in the Constitution of Zimbabwe, but this new draft Constitution has now given us authority. If you start looking right at the foundation of this Bill, we are recognised that we are people of substance in this Constitution as Chiefs.

As far as Chiefs are concerned, we are saying we have been empowered, the country is now in the hands of the Chiefs. If you look at Chapter 15 and 16, we found that the Chiefs have been empowered and also have the power to look after the land.

I would to thank Hon. Ministers Matinenga and Hon. Chinamasa because they saw that it was very important that land should not be returned to the few people but should be everybody's right in Zimbabwe. I would like to thank you for a job well done. As far as we are concerned, there is nothing wrong with this Constitution because it was a people oriented and driven Constitution.

The Constitution also embraces people who were fighting us yesterday. We did not think that it was possible for us blacks to debate in Parliament with the white people but the Constitution realises that they are citizens of Zimbabwe and thus should be beneficiaries. Thank you for putting our heads and minds together as citizens of Zimbabwe to draft this Constitution.

To conclude my speech, I urge this august Senate to adopt this draft Constitution so that it goes a step further since our Principals are in agreement with this stance. As the people of Zimbabwe we are looking forward to holding elections anytime. May the powers that be, nominate the date for the elections, we are ready to participate. We should stay as Zimbabweans, as a family. We should not intimidate each other or be afraid of each other, as chiefs, we are supporting this Constitution and we are also saying let us hold with reverence, the month of November. We know that it is a holy month according to our culture and therefore we need to observe some of these holy times. What is happening is that as chiefs, we will be using our powers so that we hold our elections peacefully. What we need to do is to push the nation forward and support the progress of the country. Let us do away with troubles and live in peace, live like Zimbabweans and live in harmony and avoid what we have been doing in the past whereby we have been transgressing because of our ignorance, but now we should not do what is bad.

Let us do what is right especially when we follow the Constitution of the country and let us not hold elections on sacred days like the month of November, which according to our tradition, is a holy month.

MADAM PRESIDENT: May I remind hon senators that when we get to the Committee Stage, you will still be debating this Constitution. The whole country has decided women should have preference, I need one more lady. Makazvibvuma mavakuda kurambidza inini.

*SENATOR MUCHIHWA: Thank you Madam President, for giving me this opportunity to debate as a lady as enshrined in the Constitution. I would like to give my gratitude to this Senate because when we moved around this country, we were seeking opinions and this is what is enshrined in this Draft Constitution. The general populace of Zimbabwe was given the chance to make contributions to the Constitution and what the people called for was freedom in the country and the Constitution, peace and equality of sexes, both men and women. We say thank you as women because we realised that in the past, we had been discriminated in some of the Acts because we had to source for support from our fellow males.

We realised that from Zambezi to Limpopo, we talked about the women's equality with men. We also noticed that in this Draft Constitution there is empowerment and employment creation. It was also said that we need to be empowered as blacks of this country. We also need to create jobs in this country to cut down on unemployment in the country. We thank the people of Zimbabwe for this Draft Constitution. When we look at the other parts of this Constitution we realised that the chiefs have been recognised.

The chiefs have been empowered by this Constitution and they should also respect the people they are leading and do their duties without fear or favour, without partisan because all the people in the chief's area are one. We found that the Constitution upholds the fundamental rights of the people in the country and therefore we find that if you are in a certain chief's area and you have different opinions you should not be punished but be given the power to do what you think is right according to the Constitution.

Let me now turn to women, you find that the women in both Houses have been favoured because we have been given extra seats so that we can be accommodated. We also have a Gender Commission which is going to look at equality of sex because in the past, we did not have a Gender Commission and therefore there were no checks and balances on the discrimination of women.

Now turning to land distribution, the Constitution says that women should be allocated land in their names not in their spouses' names and they should be the owners of that land. What it means is that in my personal capacity, I am able to go to the chiefs and ask for allocation of land which should be put in my name.

I also want to thank Governor Mathuthu who is amongst us, Senator Gaule, Senator Mutsvangwa, Senator Makuyana and I thank myself not forgetting Senator Mohadi because we were working so hard so that we could work on this Draft Constitution. There was an unpleasant situation at that time but that was during the debating time and we had to come through with this. It is a pity because as we talk about this we lost two of our people, Jabulani Ndhlovu and Gladys Dube. May their souls rest in peace, they were part of this process and they left a legacy. May the Lord be with them, I thank you.

THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS: 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.

COMMITTEE STAGE

CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 20) BILL (H.B.2, 2013)

House in Committee

THE CHAIRPERSON: Order. In order to expedite the passage of the Bill, I will put the Bill for consideration chapter by chapter. Hon. senators wishing to debate should indicate which clause they are deliberating upon.

Short Title, put and agreed to.

Interpretation, put and agreed to.

Repeal of existing Constitution by new Constitution, put and agreed to.

Preamble, put and agreed to.

CHAPTER 1

FOUNDING PROVISIONS

Clauses 1 to 7, put and agreed to.

CHAPTER 2

NATIONAL OBJECTIVES

Clauses 8 to 34, put and agreed to.

CHAPTER 3

CITIZENSHIP

Clauses 35 to 43, put and agreed to.

CHAPTER 4

DECLARATION OF RIGHTS

Part 1, Application and Interpretation of Chapter 4, Clauses 44 to 47, put and agreed to.

Part 2, Fundamental Human Rights and Freedoms, Clause 48 to 78, put and agreed to.

Part 3, Elaboration of Certain Rights, Clauses 79 to 85, put and agreed to.

Part 4, Enforcement of Fundamental Human Rights and Freedoms, Clauses 79 to 84, put and agreed to.

Part 5, Limitation of Fundamental Human Rights and Freedoms, Clauses 85 to 87, put and agreed to.

CHAPTER 5

THE EXECUTIVE

Clauses 88 to 115, put and agreed to.

CHAPTER 6

THE LEGISLATURE

Clauses 116 to 154, put and agreed to.

CHAPTER 7

ELECTIONS

Clauses 155 to 161, put and agreed to.

CHAPTER 8

THE JUDICIARY AND THE COURTS

Clauses 162 to 193, put and agreed to

CHAPTER 9

PRINCIPLES OF PUBLIC ADMINISTRATION AND LEADERSHIP

Clauses 194 to 198 put and agreed to.

CHAPTER 10

CIVIL SERVICE

Clauses 199 to 205 put and agreed to.

CHAPTER 11

SECURITY SERVICES

On Clauses 206 to 231:

THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS (ADV. MATINENGA): I move the amendment in my name specifically: On page 86, Clause 211 ( 5), line 17, Page 89, Clause 219 (4) line 2, page 90 Clause 227 (3) 39

You will note Mr. President and hon. senators these clauses are talking to the Three Arms of Security Services and that the amendment that are being made applies to each Arm of the Security Services and that is addition after the word discipline in each instance by the words the promotion and demotion of officers and other ranks.

There are two amendments I seek to make. That is number one, number two, again these are Sections relating to the Security Services.

On page 88, Clause 218 (1a), line 7, page 89 Clause 223 (1a), line 28, page 91, Clause 231 (1a)

In all instances, delete the word appoint and substitute with employ.

Amendments to Clauses 211, 219, 227, 218, 223 and 231 put and agreed to.

Clauses 211, 219, 227, 218, 223 and 231, as amended put and agreed to.

CHAPTER 12

INDEPENDENT COMMISSIONS SUPPORTING DEMOCRACY

Clauses 232 to 253, put and agreed to.

CHAPTER 13

INSTITUTIONS TO COMBAT CORRUPTION AND CRIME

Clauses 254 to 263, put and agreed to.

CHAPTER 14

PROVISION AND LOCAL GOVERNMENT

Part 1, Clause 264 to 279, put and agreed to.

CHAPTER 15

TRADITIONAL LEADERS

Clauses 280, to 287, put and agreed.

CHAPTER 16

AGRICULTURAL LAND

Clauses 288 to 297, put and agreed to.

CHAPTER 17

FINANCE

Clauses 298 to 317, put and agreed to.

CHAPTER 18

GENERAL AND SUPPLEMENTARY PROVISIONS

Clauses 318 to 345, put and agreed to.

Schedule 1, put and agreed to.

Schedule 2, put and agreed to.

THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS (ADV. MATINENGA): I move the amendment in my name that:

On page 139 of the Bill, you will notice that in the Order Paper, we are seeking to substitute the functionary before whom the oath of office is taken by a Member of Parliament or Senate. You will notice in the Order Paper that this oath or affirmation is to be taken before the Clerk of Parliament.

Amendment to Schedule 3, put and agreed to.

Schedule 3, as amended, put and agreed to.

Fourth, fifth and sixth schedules put and agreed to.

Bill reported with amendments.

REPORT STAGE

CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 20 BILL (H.B.2, 2013)

Amendments to Clauses 211(5), 223(1a), 231(1a), and the 3rd Schedule put and agreed to.

Bill, as amended, adopted.

Third Reading: With leave; forthwith.

THIRD READING

CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 20 BILL (H.B.2, 2013)

THE MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS: I move that the Bill be now read the third time.

MADAM PRESIDENT: Order, Order hon. senators. Subsection 3 of Section 52 of the Constitution provides that; Subject to sub-section 5, a Constitutional Bill shall not be deemed to have been duly passed by the Senate unless at the final vote thereon in the Senate, it received the affirmative vote of not less than two-thirds (2/3) of the total Members of the Senate. In order to comply with the provisions of Section 52, it is necessary that the number of affirmative votes cast by members be recorded. I therefore direct that the bells be now rung, after which the votes of the hon. senators will be counted.

Bells rung.

ANNOUNCEMENT BY MADAM PRESIDENT

PROCEDURE FOR VOTE COUNTING

MADAM PRESIDENT: Order, order. Hon. senators will remain in their places and the Clerk of Parliament will call out the names of the senators, who in turn will respond by saying 'Aye' when their names are called out. Thank you.

AYES: Chibagu G.; Chiduku Chief R. M.; Chigwedere A.; Chimbudzi A.; Chisunga Chief; Chitaka P; Chitanga Chief; Chinamasa P. A.; Coltart D.; Dandawa Chief T. M.; Dete A. A.; Dinha M.; Dube J.; Dube K.; Femai M; Gampu Chief I. V.; Gaule B.; Georgias A. C.; Gumbo R. A. N.; Gutu O. C.; Hlalo M. M.; Holland S. M.; Hungwe J. D.; Jacob E.; Katyamaenza V.; Khumalo D.; Komichi M.; Mabhiza G.; Mabika Chief J. T.; Machaya J.; Madzorera H.; Made J. M.; Makamure E. K.; Makhula R. R.; Makore J.; Makunde T.; Makuyana C.; Maluleke T. H.; Mandaba M. I. N.; Manyeruke J.; Marava M.; Marumahoko R.; Mathuthu T.; Masaba J.; Masendu Chief; Masuku A.; Matema C.; Mbambo L.; Mlotshwa S.; Mtshane Chief L. K.; Mohadi T. B.; Moyo S. K.; Mtingwende T.; Muchenje V.; Muchihwa R.; Mumbengegwi S. S.; Mumvuri D. D. E.; Murerwa H. M.; Musarurwa Chief E. M.; Mutsvangwa M.; Muzerengwa T. S.; Ncube S.; Ncube W.; Ndlovu N. K.; Nebiri Chief; Nembire Chief; Ngungumbane Chief; Ntabeni Chief; Rugara K.; Sekeramayi S. T.; Shana Chief N. Z. J.; Sibanda A.; Sinampande H. M.; Tapela L. A.

NOES: 0

MADAM PRESIDENT: Order, order! Before I make the next announcement, I just want to thank all the Senators who are here today, for fulfilling your national duty by being here and by being part of the history- making of this country. I feel very proud that quite a good number of the Senators have shown up. It shows the seriousness of the Senators. You are very much appreciated. [Hon. SENATORS: Hear, hear]

The result of the count is that 75 honourable senators have voted in favour of the Third Reading of the Bill and non have voted against the Bill. [ Ululations from Hon. Senators] The number of affirmative votes recorded is not less than two thirds of the total membership of the Senate.

I therefore, declare the final vote in the Senate on the Constitution of Zimbabwe Amendment No. 20 Bill (H.B. 2, B 2013) to have been in accordance with the provisions of Sub Section 3 of Section 52 of the Constitution.

Bill read the third time

All Hon. Senators broke into song and dance "Zimbabwe Nyika yedu yababa"

MADAM PRESIDENT: May we please take our seats. I do not think the House has been adjourned.

On the motion of THE MINISTER OF JUSTICE AND LEGAL AFFAIRS, the Senate adjourned at Nine Minutes to Five o'clock p.m. until Tuesday, 21st May, 2013.

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Senate Hansard Vol. 22 SENATE HANSARD - 14 MAY 2013 VOL. 22 NO. 17