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Senate Hansard 26 July 2017 Vol 26 no 73

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PARLIAMENT OF ZIMBABWE

Wednesday, 26th July, 2017

The Senate met at Half-past Two o’clock p.m.

PRAYERS

(THE HON. PRESIDENT OF THE SENATE in the Chair)

ANNOUNCEMENT BY THE HON. PRESIDENT OF THE SENATE

NON-ADVERSE REPORT RECEIVED FROM THE PARLIAMENTARY LEGAL COMMITTEE

          THE HON. PRESIDENT OF THE SENATE: I wish to inform the Senate that I have received a Non-adverse Report from the Parliamentary Legal Committee on Statutory Instrument Numbers 281 to 314 published in the Gazzette during the month of June 2017.

MOTION

BUSINESS OF THE HOUSE

THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHINAMASA): I move that Order of the Day, Number 1 on today’s Order Paper be stood over until Orders of the Day, Numbers 2 to 10 have been disposed of.

Motion put and agreed to.

MOTION

STATE OF THE NATION ADDRESS BY HIS EXCELLENCY THE PRESIDENT

          Second Order read:  Adjourned debate on motion in reply to the State of the Nation Address.

          Question again proposed.

*HON. SEN. MUMVURI:  Thank you Madam President for giving me an opportunity to debate on the Presidential Address.  Annually, the President when he presents the State of the Nation Address, he will be giving an outlook of the country as well as his expectations in terms of the work that has to be done by the National Assembly and the Senate.  The outlook that was given when he spoke is that now we even see the fruits of what he talked about because he said that there would be programmes such as the Command Agriculture in order to increase and also develop our country through agriculture. 

As you know, Madam President, yesterday I tabled a report in support of what the President said in terms of the status quo of the country and where we are going and I want to commend the President and this is also supported by the 10 Point Plan.  From what he said, all these have already been successful.

Other things that he mentioned in his address were that the state of our roads should be addressed.  We know the Beitbridge and Chirundu project is on the cards and should commence soon.  Just yesterday, we saw the Minister, Hon. Gumbo in Mashonaland East officiating at the opening of the Mutoko road which was highly commended by the Hon. Member, Hon. Chinomona.  So, there are so many things that are taking place.  From the time that he talked about road rehabilitation in Mashonaland Central, we have seen the opening of so many roads.  So, that is what he envisioned should happen in the country and that is what happened.  So that is what we are supposed to emulate.  Once we emulate such things, our nation will be able to develop. 

A lot of things were said by my fellow Senators, but for the policies that he said would work out, we want to thank the President because it was a success.  We want to thank the President because he had foresight and is committed to ensuring that the country develops.  We also see that tourism has also increased and is progressing.  I am sure you noticed that in Chiadzwa, there are no individual companies anymore.  There is now one company which has ensured that peace prevails in the area. 

On the issue of border areas, yesterday we had a workshop with ZIMRA which reflected that we are on course.  Also, revenue inflows have increased because of the policies and measures that have been taken by ZIMRA to curb corruption.   They mentioned about the cargo tracking system which is also assisting to curb corruption.  So, that is something that we need to work together and ensure that we support.

It starts with you, with me, with all of us in order to ensure implementation of these policies that were mentioned by the President so that our nation develops.  Thank you for this opportunity that you have given me to show that the fruits of his speech have come to fruition.

HON. SEN. CHIPANGA:  Madam President, I move that the debate do now adjourn.

THE HON. PRESIDENT OF THE SENATE:  Order.  Hon. Chipanga, I am sure the ZANU PF Senate Whip had a discussion with you about leaving this motion on the Order Paper.  The thing is, we have written, we have pronounced in this House, begging Ministers to come and respond to our motions.  So far, it looks like it is not going to happen.  We tried to explain to the Hon. Ministers that it is part of their duties to come and respond to their duties raised through motions in this House.  They have not bothered to do so.  Maybe you were not prepared to close it today, but please be prepared...

HON. SEN. CHIPANGA:  Madam President, I am ready.  It is only that ndandarasika.

THE HON. PRESIDENT OF THE SENATE:  It is only Hon. Sen. Mumvuri who side-tracked you.

*HON. SEN. CHIPANGA: In fact, Madam President, it is Sen. Mumvuri who asked me not to wind up the motion yesterday.  Sorry, I had missed the procedure.

In winding up my motion, I want to thank all those who managed to contribute to this very important motion and these are: Sen. Mkhwebu, Sen. Mavhunga, Sen. Machingaifa, Sen. Goto, Sen. Manyeruke, Sen. Bhebe, Sen. Khumalo, Sen. Masuku, Sen. Buka, Sen. Matiirira, Sen. Chief Mtshane, Sen. Mashavakure, Sen. Mugabe and Sen. Mumvuri.

Madam President, in thanking these Hon. Members who managed to contribute to this very important motion, I wish to indicate that the problem as I have seen in the past, is that while it is a fact that this aonce in a year occasion: an occasion when the head of the Executive comes down to interact and share his thoughts with Members of the Legislature. What seems to happen is that after the President’s Speech, there is no reference; there is nowhere Members of the Senate can go and read the speech. 

My appeal therefore, Madam President, is that in future on this particular occasion. We should have copies of the Hansard deposited in our pigeon holes so that Members can then afford to debate meaningfully because I think it is expecting too much, Madam President, for anyone to expect that – the President made his Speech in December, 2016 anyone can still remember what the President said then and be able to contribute meaningfully, I think that is expecting too much.

          I am therefore, appealing Madam President, through you to appeal to the officials that in future, we have copies of the Hansard deposited in our pigeon holes so that we can always refer to the President’s Speech.  With those words, I would like to thank once again those who contributed on this motion.  I therefore move that the motion be adopted.  I thank you.

Motion that this House conveys its profound gratitude to His Excellency, the President Cde. R. G. Mugabe for addressing a joint sitting of Parliament on the State of the Nation.

Expresses its commitment to and support for the views contained in his address; and that a respectful address be presented to His Excellency the President, informing him of the sentiments of the House, put and agreed to.

MOTION

FIRST REPORT OF THE THEMATIC COMMITTEE ON PEACE AND SECURITY ON THE PREPAREDNESS OF THE GRAIN MARKETING BOARD ON HANDLING THE 2016/2017 CROP DELIVERIES AND THE SUCCESS OF THE COMMAND AGRICULTURE PROGRAMME

Third Order read: Adjourned debate on motion on the First Report of  the Thematic Committee on Peace and Security on the Preparedness of the Grain Marketing Board to handle the 2016/2017 Crop Deliveries and the Success of the Command Agriculture Programme.

     Question again proposed.

     +HON. SEN. NCUBE: Thank you Madam President for the opportunity you have given me.  I rise to add my voice on the report that was tabled in this House by the Chairperson on Peace and Security Hon. Sen. Mumvuri and seconded by Hon. Sen. Makone.  I am just adding my voice as a member of the Committee, for everything was articulated in the report.

     In all the areas that we went to, we received very positive reports on Command Agriculture. Zimbabwe is a country that is rich, especially in the farm products.  However, I realised that when we were going round the country, one thing that disturbed me was the people who were saying they were from the President’s Office, stating that they were State security agents.  Among them were soldiers as part of security. 

     I wondered why they were going with us yet we were touring the GMBs, we found them in all the GMB station, what does that have to do with security.  I did not see a reason for the officers from the President’s office to be in those stations.  When we went to Lions’ Den, I realised that the people we were interacting with were saying GMB wants farmers to come with maize at 12.5% moisture.  So, most farmers were complaining that most of the times their maize is rejected at GMB because of the moisture content, for example if it is at 13% and above. 

          Some of the farmers do not have the machines to measure the quantity of moisture in their maize.  Therefore, if it is rejected and they are supposed to take it back home at their own expense.  We realised that some farmers would sell their maize at a cheaper price to other people outside GMB.  They will do this so that they do not lose out.  It was also highlighted that Command Agriculture, inasmuch as it is a good project, there are other areas where people need to see improvement, like the issue of inputs. 

          They were of the view that there is need to take into consideration that type of soils differ, hence it requires certain type of seeds.  Most of these farmers indicated that the type of seeds they are given at times would not be the required seeds for their soil type.  They were also complaining that they are just given seeds without consulting them what type of seeds they require in their areas.  They were also not happy with the timing of seeds and fertiliser distribution because it usually come very late and they have to walk long distances to get those inputs.

     They were of the opinion that if only inputs can be distributed according to districts so that people will be closer to their homes.  They face challenges of accommodation whilst they are waiting for inputs to be delivered.  Some even indicated that they would stay for three to four days without receiving the inputs.  They felt that, this year if they are going to be given farming inputs, including fuel, the points they have raised should be taken into consideration.

     Another point they highlighted is that they prefer to receive the inputs during September when they are preparing for the next farming season, waiting for the rain.  Those who do irrigation can start soon after receiving the inputs.  They also indicated that they do not have enough combine harvester machines.  Therefore, it takes long, for example in a province, for all farmers to do the harvesting of their yield on time is not possible.  By the time they finish harvesting, they will be behind time.  They were asking if the Committee could assist whether by talking to the Minister of Agriculture, Mechanisation and Irrigation Development to avail more combine harvester machines to help them harvest their yield on time so that they can prepare for the next season.  With these few words, I thank you Madam.

*HON. SEN. MURWIRA:  Thank you Madam President for giving me the opportunity to contribute to the debate before the House concerning the report tabled by Senator Mumvuri from the Thematic Committee on Peace and Security. 

I would like to thank the Government for the Command Agriculture Project.  For those who spearheaded the project, I want to commend them for a job well done because they assisted us a lot.  I also want to appreciate the good yield that we had in Zimbabwe. It is actually shocking if you go to your field to see the maize that is in our fields today.  Some people are very short sighted with regards to this project and are not optimistic. They are like a doubting Thomas, but today you find that they are the ones who are registering first after realizing that others were able to get good yields.

In terms of food security, I think we have done well as a country and we are now even able to export to other countries that have not experienced such high yields.  For those who are outside the country, it was difficult for them, they could not sleep well because they did not know what their family would eat back home.  Now, the situation has changed.  When Command Agriculture was introduced, it was not discriminatory.  It did not look at tribe or political party; so, I want to thank the people of Zimbabwe because most of them engaged in farming and grew a lot of maize. 

I would like to encourage those in our communities that once we hear of new policies and projects, we should accept these and gladly implement them.  The Command Agriculture project will be extended for the next two to three years and my request is that the Government should increase the period to about five years.

I am proud of our nation Zimbabwe.  We are hard working people, full of energy.  I request that Government continues to assist us by giving us loans which we will be able to repay once we harvest our crops.  I want to thank the Committee for the recommendations.  One of the recommendations was that inputs should be availed on time.  If we look at the initiation of this whole project, the inputs were quite a challenge but this is a learning curve.  This did not affect the yield.  I would say the success was 99%.  We also request that there be driers at the GMB depots to ensure that the moisture content required is reached. 

We have heard about the corruption that is taking place with the middlemen at GMB who want to buy maize.  They end up selling it to the GMB after meeting the required moisture content.  Our request to GMB is that if one takes their maize to GMB, at least the money should be available in two weeks so that people have faith in the Government and do not end up selling their maize at next to nothing; for example, $2. The Government should ensure that the maize is bought at the correct price.  That way, we will get more wealth and we will be able to buy Mercedes Benz cars because we are hard working.

We want to thank the Committee for the good work that they did and we urge them to continue going out on investigations and bring us more information.  Today I heard that the Mashonaland West Silos are already full and they are looking for other silos in which to store grain.  If you have not yet joined the Command Agriculture project, I urge you to join the rest of us.  Thank you for the time you have availed to me Madam President.

+HON. SEN. MASUKU:  Thank you Madam President for giving me this opportunity for me to add my voice, seconding the report that was brought by Hon. Sen. Mumvuri as the Chairperson of the Thematic Committee on Peace and Security and the seconder.

The report that was tabled touches on Command Agriculture and also on the preparedness of GMB in receiving all the grains harvested under the Command Agriculture.  I will first touch on GMB.  I will be happy if the Minister would highlight if all GMB silos have been prepared for the bumper harvest within the country at the moment for that the grain to be kept properly preserved.  This is something we are happy about because the Minister highlighted that most of the time we might have a good harvest and fail to have enough silos to store our grains.

There is need for all the provinces or districts where there is GMB to come up with places where they can dry all the maize for example, Antelope, which is under ARDA – they built different driers to remove the moisture within the maize before it is sent to GMB.  The driers assist in keeping our grain dry. 

Through this Command Agriculture, we managed to revive all our irrigation schemes.  What makes me happy is that even in all the Provinces that are usually known to be drought stricken and there is no farming activity; because of the revival of the Command Agriculture, they also harvested.  I want to applaud Matabeleland South and all the farmers; I have been told that ARDA Antelope is the one that produced a better harvest in the province.

Whilst I want to touch on the irrigation farms, I also want to urge that we should try and improve on the small farms, especially when we try to revive such small farms, we will be able to revive them and they will be able to come up with better harvests.  I know that on the issue of Command Agriculture when it was started, it did not come out properly because people thought it will not come out properly for they were few things that needed to be finalised.  After a successful harvest that we had, I know when we do it for the second time, we will get better harvest than we have now.  What I would like to say Madam President is that when we debate such issues, the relevant Ministers must be available so that they can hear what the people are saying and what they want them to improve. 

          My wish Madam President is that if only we can try and take into consideration everything that has been highlighted, especially by the members of the Committee in their reports of what the farmers said.  We also want the Government to try and improve by availing more tractors and combine harvesters.  Long back, DDF used to assist by availing the tractors; it is another project that is supposed to revive all the DDF projects especially on availing tractors.  This will assist more farmers when doing their farming. The second thing Madam President is that, yes, we might have the tractors but we are hearing that for example in Mashonaland West because they had a better harvest as compared to other provinces they must be availed with more harvesters. 

          It is therefore, encouraged that when we bring centre pivots or combine harvesters, we realise that it will create balance especially for the farmers to do their harvests.  It is of priority Madam President to make sure all the combine harvesters that are used are in good working order.  Yes, the Minister highlighted that they are trying to repair most of the combine harvesters but there is need to increase the number so that farmers do not leave their products in the farms because of lack of enough combine harvesters. 

          Maize is a major crop in Zimbabwe that is cultivated.  It is therefore encouraged that as a country, all Zimbabweans should be able to get proper nutrition especially food types that assist in fighting diseases.  I know in this Senate, there is Hon. Sen. Khumalo who always emphasises the issue of nutrition.  Under Command Agriculture Madam President, there is need that in our next project, we should avail the seeds for such farm products to all our farmers so that in as much as we plough maize that will bring foreign currency, we export it.  We must also try to grow different crops that are of nutritional value.  It is therefore, encouraged that all farmers be taught that there should be balance in whatever that they are ploughing in their fields.

          Madam President, another area of interest on Command Agriculture is on the issues of animals, for example, cows, goats, et cetera.  One thing that is of interest is that I heard again the Minister saying they are encouraging women to participate in this project especially of the cows and goats.  I hope that the ministry has made adequate preparations and research in issues of Command Agriculture on crops and animals.  We know Madam President that they are different places where we can sell our produce; it might be in other provinces within our country or in other countries. It is therefore important that women and youths get involved in the second phase of command agriculture. 

          Madam President, I would like to highlight that Zimbabwe as a nation has attained 37 years of independence.  We have been exporting food from other countries.  I want to extend my gratitude to the President of the country and his Vice Presidents for bringing this Command Agriculture Programme.   What I will then ask Madam President is I take into recognition one of the Vice President who is responsible for the command agriculture to convey this message on how thankful we are as Zimbabweans.  After 37 years of independence, Zimbabwe is now able to be a bread basket of Africa once again and we are now totally independent.  You cannot say you are independent when you are still importing food from other countries; therefore, your independency is in question. 

          This year, I believe that Zimbabwe as a nation, is going to enjoy freedom for there is no one who is going to be affected by drought.  Secondly, our foreign currency inflows will increase because of the command agriculture.  Some of us cannot see any good out of it but what I know is that in everything that is being done, there is no one that is going to criticise it negatively because I know Command Agriculture has brought a positive change in Zimbabwe.  With this Madam President, I want to thank the Committee that toured the GMB silos and it is my wish that they continue with their tours so that they can identify even the needs that are there in other different places and will be presented in this Senate so that the needs of farmers and the country will be met in all the provinces.  With these few words Madam President, I want to thank you for giving me this opportunity.

*HON. SEN. MACHINGAIFA: Thank you Madam President for giving me this opportunity to add my voice in support of the report that was tabled in this august House by the Hon. Chairperson of Thematic Committee on Peace and Security Hon. Sen. Mumvuri, seconded by Hon. Sen. Makone. I feel proud to be associated with such an issue that if I were not to comment about it my life will be empty and God will not bless me.

          Madam President, we travelled with the Committee and wherever we went, we were proud about the achievements of the Command Agriculture Project. It was plaudits all over as people were smiling that we had a bumper harvest. We thank those that led the project. They prayed to God and God heard their prayers, sufficient rains were received and the country had a bumper harvest.

We were quite happy to observe that during our visits the youth in Banket at Nyathi Mhenyu Farm bid farewell to his colleagues saying he was leaving Harare going to the farm. Upon arrival at the farm, he tilled the land and we were quite proud of his achievement. He had a maize field. We went into the shelled maize and our legs went knee-deep. Zimbabwe has been blessed by God. We had experienced several years of drought. Our leaders were in deep thought and after that they came up with such a programme.

When I look at such a programme Madam President, I liken it to the years in Rhodesia when white farmers were given farms and given loans that they would repay after five years. This is what God has done to us through our leadership and it has been successful. There are those that will speak ill of the programme but we do not know which country they live in.

As we went around, the issue of moisture stress for the maize that was being received at the GMB is because they did not properly demarcate the land where wheat was going to be ploughed while the maize would dry on the land. The problem is that they have very small pieces of land to till. As time goes on, people should be asked to plough specific hectares for maize and another for wheat to give the farmers sufficient time for the maize to dry up. The GMB acceded that the maize could be dried using driers but they were discouraging that because the maize would not be pure white and that white quality is better. Proper demarcation of land would remove the need for driers.

We did not have combine harvesters to harvest the maize but we have learnt that we need to purchase them for future use. Those that contribute to funeral assurances or burial societies only appreciate the use of such services when they have bereavement in the family. The same should happen when we buy such machinery and use it for such bumper harvests. I am grateful to the Committee that toured the country. I believe the Vice President Hon. Mnangagwa is happy because of the success of such a programme. I thank you.

HON. SEN. MUMVURI: I move that the debate do now adjourn.

HON. SEN. CHIPANGA: I second.

Motion put and agreed to.

Debate to resume: Thursday, 27th July, 2017.

MOTION

BUSINESS OF THE HOUSE

THE MINISTER OF DEFENCE (HON. DR. SEKERAMAYI): Madam President, I move that we go back to Order of the Day No. 1 on today’s Order Paper.

Motion put and agreed to.

SECOND READING

CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 1) BILL [H. B. 1, 2017]

          THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. E. D. MNANGAGWA): Madam President, I rise to present the Second Reading of the Constitution of Zimbabwe Amendment (No. 1) Bill (H.B. 1, 2017). The present Constitution of Zimbabwe became fully operational on the 22nd of August, 2013 having been assented to on the 22nd May, 2013 by the President as the Constitution of Zimbabwe  Amendment (No. 20) Act and published on that same day. 

Although sections 171 (1) paragraph (b) and 174 of the Constitution clearly imply that the Labour Court and the Administrative Court, are courts subordinate to the High Court despite their members also being called judges. This implication appears to be at odds with paragraph 18 sub-paragraph (6) of the sixth schedule, which provides that every person who will immediately before the effective date presided over the Labour Court or the Administrative Court becomes a judge of the Labour Court or the Administrative Court as the case maybe.  On the same conditions of service as apply on that date to judges of the High Court, without affecting the quality of basic conditions of services, of services between, on the one hand, judges of the High Court and on the other judges of the Labour and Administrative Courts.  There is a need to make explicit subordination of these last mentioned courts to the High Court by an appropriate amendment to Section 174 of the Constitution. 

This Bill, the Constitution of Zimbabwe Amendment No. 1Bill 2017, will amend the Constitution by substituting Section 180 of the Constitution that provides for the appointment of judges.  The appointment procedure for all judges will remain as it is in the Constitution before the amendment except for the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court.  It is proposed by this amendment that these three offices will be appointed by the President after consultation with the Judicial Service Commission.

Under the old Constitution, the appointment of all judges was done in this way except for the Judge President who was appointed by the Chief Justice.  If the appointment of the Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission, made during the course of the consultations, then the President will have to inform the Senate of that fact as soon as possible.  Consequent to the foregoing amendment, paragraph 18 (3) of the Sixth Schedule to the Constitution, titled ‘Commencement of this Constitution, Transitional Provisions and Servings’ is also amended by excluding vacancies in the office of the Chief Justice, Deputy Chief Justice from the scope of that provision. 

Madam President, I wish to also explain what has prompted the Executive to move for the amendment of the Constitution with regard to the procedure of appointing judges.  The current Constitution requires that all judges, Administrative Court judges, Labour Court judges, High Court judges, Supreme Court judges, Constitutional Court judges, the Chief Justice, the Deputy Chief Justice and the Judge President, be appointed through a procedure of interviews by the Judicial Service Commission.  This means that if there are vacancies in any of these courts, for instance, the lower courts, the Labour Courts, Administrative Court and the High Court as the court of first instance, if there are vacancies, then those vacancies are advertised in the newspapers for those who want to become judges to apply.  When they apply, the Judicial Service Commission will conduct interviews to ascertain those applicants as to who is more suitable to take the post.

The first exercise is to find out whether the applicants do qualify in terms of legal qualifications to be appointed a judge.  The second is to look into both the probity, integrity and qualification of the individual.  The panel of judges who do the interviews are the Chief Justice, who is the Chairperson of the Judicial Service Commission, accompanied by the Deputy Chief Justice, accompanied by the Judge President, accompanied by the Supreme Court Judge, who is the Secretary to the Judicial Service Commission and accompanied by another judge from the High Court and two or so others from the private sector.  So, you can see Hon. Senators that the panel that interviews those who apply to become judges are the most senior judges of our judiciary, headed by the Chief Justice. 

This amendment does not amend that procedure in relation to the appointment of judges.  The appointment of judges will continue to fall under the provisions as they stand.  That is to say, the Judicial Service Commission will continue to advertise and those who wish to become judges will have to apply for interview, submitting their curriculum vitae showing that they qualify to be judges and subject themselves to an interview.  The second point is that for every single post of a judge, at least two names must be submitted on that single post to the President.  If there are six vacancies, you multiply six by three and you will require 18 names to be presented to the President in order for the President to select six names out of the 18.  When you are already a judge and there are vacancies in the Supreme Court, those judges in the High Court or Labour Courts who wish to be promoted to the Supreme Court have to apply and subject themselves to the interview and assessment by the Judicial Service Commission for appointment to the Supreme Court.

The next superior court is that of the Constitutional Court.  Again, if there are vacancies in the Constitutional Court, judges of the Supreme Court, judges of the High Court and judges of the Labour Court who feel they would want to apply, have the freedom to apply and be assessed for suitability to be judges of the Constitutional Court.  That is not being changed; that remains.  What we are changing is the filling of the post of the Chief Justice, Deputy Chief Justice and Judge President only.  Why?  The reason is that the State is constituted of three pillars.  These three pillars are the Executive, the Legislature and the Judiciary.  These three pillars are equal.  The Judiciary is headed by the Chief Justice, the Parliament which is the Legislature is headed by the Speaker.  The Executive is headed by the President.  However, there are differences whereas in the Legislature, it is composed of people elected by the electorate into the Legislature - yourselves. 

So the majority party in the Legislature elects the Speaker of the House which is a democratic process.  With regard to the Executive, the majority of the party which has won elections constitutes or forms the Executive led by their leader who becomes the President.  Because these three pillars are equal, you must have an authority that is above the three pillars and this authority is that of the Head of State.  When we address the President, he is Head of State, which means he is the head of three pillars; the Executive, the Judiciary and Legislature, but when he goes to chair the Executive, he is President not Head of State.  So, he is the only person qualified to appoint head of other pillars because he is above the pillars, because he is Head of State.  We therefore are amending the provision in the Constitution, where members of the Judicial Services Commission have been allocated this function of Head of State by the Constitution inappropriately in terms of procedure to have the head of Judiciary.

However, the provision that there is need to check on the probity, integrity and qualifications of the particular person to be appointed Chief Justice, the Act requires that the President shall submit three nominees to the Judicial Services Commission for it to interrogate three things on the particular person and the three names for each post; that is, if it is Chief Justice, the President is required to submit three names to the Judicial Service Commission to look into the qualification of the nominee, the integrity of the nominee and the probity of the nominee.  That panel would then prioritise in terms of their assessment the three individuals and make recommendations to the President.  This is what is constituted by the provision of the President consulting the Judicial Service Commission.

The other improper procedure was the current provision that would require that where a Chief Justice is required and a Chief Justice is retiring generally, the most senior judges in the Judiciary are the ones who apply to become Chief Justice.  You would not have somebody who is a Labour Court judge, a magistrate or any other lawyer in the street applying to be Chief Justice; they are allowed, but they know they cannot succeed.  But the most appropriate ones are the ones who are at the top, at the apex of the judicial structure.  These are the Supreme Court Judges and Constitutional Judges. 

Now, the Judicial Service Commission is composed of the most senior judges and they are the ones who apply to be Chief Justice.  Our late Chief Justice Chidyausiku was the Chief Justice who was retiring and was Chairman of the Judicial Service Commission.  As he was retiring, he remained to chair the interviews to select his successor.

Now, his Deputy who was his deputy as Chairperson of the Judicial Service Commission Justice Malaba, Supreme Court Judge Justice Makarau, Judge President of the High Court and Justice Chiweshe applied to be Chief Justice.  All these sit as assessors as they interview people.  So, they had to stand aside and allow junior persons from the private sector to interview them to become Chief Justice.  This is most inappropriate.

So, this is what we are removing so that the head of the Judiciary should come from the nominee of the President, who is the Head of State.  This is the practice world over.  In the United Kingdom, the Queen, in consultation with the Prime Minister, appoints the Chief Justice of the United Kingdom.  Even Trump appoints the Judge in America.  The same everywhere, you can ask Zambia, Malawi - wherever you can ask.  That is what happens. 

So, this anomaly had crept into our Constitution and this is what we are correcting, although we are preserving the earlier element I have mentioned where the other judges have to go through the process of being interviewed and recommendations made to the President for appointment.  So, I appeal to Hon. Members of the Senate to support the amendment of this Constitution in order that we should have the President appoint the Chief Justice for the Republic of Zimbabwe as Head of State.

With regard to Parliament, I have already mentioned Parliament is as a result of elections.  Members of Parliament are from the electorate, they are elected by the people and so they should be able to exercise the electoral legitimacy and mandate to have their head.  The Executive is as a result of an election and the winning party have their head of party sworn in as President.  He becomes President of the Executive.

Madam President, I believe that I have done some justice to explain the implication, philosophy and background to this amendment.  I thank you.

+HON. SEN. MLOTSHWA:  I thank you Madam President.  We take into recognition the issue that is being brought into this House by the Vice President of the State on the issue of amending the Constitution.  Before we even get into the fifth year of the Constitution’s existence, already we want to amend our Constitution on the issue of appointment of Judges being appointed by the Head of the State.

Madam President, this Constitution was voted for through a referendum by the people of Zimbabwe - I know that the Vice President can hear me – therefore, for us to amend it with so many amendments before we can even implement it is not proper.  While Section 180 was supposed to pass through so many different people, already their powers are taken from them so that they can also participate in appointing the judges and it is only the President who can appoint those people.

In my own view, Madam President, those who are in power especially the President or the Executive want to take everyone who has anything to do with law to be under them so that when they are now working, they are the ones who will be directing them on what to do and they will not have any independence on how they can implement their duties based on the qualifications that they have.  Therefore, for the President to be the one who appoints the Judges, in my own view, I do not think it is proper.  The Vice President has highlighted that in other countries they do that, but my argument is why we not do our own thing.  Most of the times we have heard you Vice President saying we do not want to copy what other countries do, why is it that in this matter we want to copy other countries?  Why can we not do something we want?  This is something that was voted for by the people and we want to follow what other countries do. 

          Madam President, if these Judges are going to be appointed by the President, there is a danger that if they do not do according to what the President wants; he is going to tell them that I amended the Constitution in order to accommodate you.  Therefore, you have to do what I want as the President.  This is what we are against because there is no democracy there.  They will not be able to implement what they would have learnt in school because they will work under dictation.

          The last time we checked the Constitution, it has not been implemented and in less than five years you want to change it.  If only we could push with the same Constitution for a number of years; as of now, we have not seen anything wrong with the Constitution, so why is it being amended.  Why should we want to put all the powers under one person?  We know that this Bill is going to be passed whether we are there or not but we are just giving you our views so that you know that you are passing it because of your majority muscle. 

If there is no one who is cautioning you, highlighting the negative side of what you want to implement, it will be like we have the same thinking.  We want to show you that we are not happy with the amendments that are being done on the Constitution. This is not respecting the views of the people, especially what they said when we were coming up with this Constitution.      We are not happy that the powers of appointing such people are delegated to one person.  With these few words, I thank you.

          *HON. SEN. KOMICHI: Thank you Madam President for affording me this opportunity to debate on the Bill that was brought by the Vice President.  I will begin with a question: is it that the nation is not happy with the appointment of Justice Malaba?  Is Justice Malaba a wrong candidate?  He went through a process that is in the Constitution, which was voted by over 3 million people in the past few years.  That process gave the provision of how the Chief Justice should be appointed. 

          Out of that process, the President then appointed Chief Justice Malaba.  The process was not done outside the powers of the President.  He appointed finally.  This was the process that was agreed upon by the people of Zimbabwe after ensuring that that is the process that will give us a candidate based on merit.  What they were guarding against was a Chief Justice who is appointed on political lines.  It is like taking me, Komichi to be the Chief Justice.        The people of Zimbabwe want a Chief Justice who is appointed through the process that is in the Constitution.  If the team was composed of junior people to interview the Chief Justice, then it is not anyone’s fault because we have judges with more experience that could have done the process.  Furthermore, it worries us as the people of Zimbabwe - after more than 35 years, we have come up with our own Constitution which we widely consulted the people of Zimbabwe and adopted it to govern us, but in less than two years, that Constitution is being amended.  It means the Constitution of Zimbabwe is now under serious threat because where the Executive sees as a hitch, they amend the Constitution.  It means we end up going back to the Constitution that we had 10 years ago; a Constitution that we discarded a few years back. 

          This Constitution came out as a result of serious compromise as it involved all the political parties and we agreed that it was a document that could govern us as a nation.  Now, we are here amending the Constitution.  We have heard what you said Vice President that in Parliament people were elected and we elected the President of the Senate and the Speaker of the National Assembly.  It is not convincing at all because the other way that we could have used was the one proposed by the people of Zimbabwe that of conducting public interviews, especially for people with such high positions in the judiciary.

          Are you aware of the fact that there are people who are arrested because of politics and they are convicted for no reason because the judges and the magistrates are politically appointed?  There are other countries that have improved Vice President, who have abandoned this way of doing things and have adopted the interview way.  We should emulate such countries instead of copying those who are backward and undemocratic.  That is against the ethics of law…

          HON. SEN. MANYERUKE: On a point of order.  Hon. Sen. Komichi is referring to all of us here as dull people.

*THE HON. PRESIDENT OF THE SENATE:  Thank you very much Hon. Sen. Manyeruke.  I do not think he was referring to a specific person or party.  He said it in general.

*HON. SEN. KOMICHI:  I know that if you denigrate the President in this country you will be arrested. 

*THE HON. PRESIDENT OF THE SENATE:  If he had used unparliamentary words, we would have made a ruling.

*HON. SEN. KOMICHI:  If you denigrate the President in this country you will be arrested using POSA but if I am to denigrate the Vice President, Hon. Mnangagwa, he is my uncle.  It is not an issue.

*THE HON. PRESIDENT OF THE SENATE:  We do not have uncles or fathers in this House.  If you denigrate any of the Hon. Senators, you will be against the rules.

*HON. SEN. KOMICHI:  Thank you Madam President.  Hon. Vice President, we heard what you said, but we are not in agreement because this is being done for political reasons.  We wanted merit to be used.  As I stand here, I am opposed to this amendment and I do not want to be part and parcel of it, because it violates the wishes and hopes of the people of Zimbabwe.  I thank you Madam President.

+HON. SEN. KHUMALO: Thank you Madam President for giving me the opportunity to add a few words on the motion that was tabled in this House.

My own thinking and understanding is that we are changing.  We have to amend something that already exists in this Constitution; a Constitution that was passed just a few years back.  When we were trying to come up with it, people were asked a lot of questions and they passed it.  Before we have had two terms of the Constitution being implemented, already we want to amend what people said they want.  I know that there were lawyers who were involved in the crafting of this Constitution.  Why did we not highlight it when we were crafting this Constitution?  We should also have highlighted that what the people said when we were coming up with the Constitution was not correct.  It is not alright that after people have indicated satisfaction that they have come up with their own Constitution, we already want to amend it saying that we are not in agreement with what they want. 

I am not in agreement with this amendment because all of us were part and parcel and we agreed to pass this Constitution. Why did we agree and today we want to turn tables and say we are not in agreement with this?  Yes, you are saying that all other countries are practicing this.  From what the Vice President has said, in one of the countries, they have been changing one of their senior officials more than four times. Therefore, as a country, Zimbabweans are not in agreement with that and I know that they would not want that when someone has been elected by someone, most of the time you will not do what is correct for the fear of being removed from power.  We are not like other people - like in Europe who can stand for their country.  Most of the time, Zimbabweans would rather be promised to be bribed rather than standing up for your right and truth.  Most of the time people want to stand up for those who would have elected them. 

I know that this Bill is going to be passed but as Zimbabweans, we have realised that we cannot stand up for the truth because we do not want to be removed from power.  All that is needed is to impress the person who would have voted them into power.  With these words, I am not in agreement with this Bill.  Most of the time, the people who are elected into power, especially if they are appointed by someone; will not resign.  In countries like Europe, these people resign rather than standing for something that is not right.  I thank you.

HON. SEN. B. SIBANDA: May I take this opportunity to make a few points.  The first point I want to make is that the Vice President can correct me if I am wrong; nowhere in our Constitution do we find an explicit reference on the three arms of Government where a member of the other arm is made to look senior to the other two pillars.  I am therefore perturbed when the Vice President says that the President who is normally addressed in three titles; Head of State, President and Commander is suddenly senior to the other two arms inspite of being a member of the one arm.  If I can be enlightened if constitutionally, that is explicit.  From my legal understanding, I do not see it explicitly.

Secondly, I would like us all to appreciate that when you invert any management system, something is wrong.  When I am saying invert, when the President gives a number of judges a number of people to interview, then that is a definite pointer that these are the people you must come up with. It is different from asking your compatriots or other people you work with to independently look at a group of persons from whatever polity and say to them; come up with the best candidate. The point has been made.  It is not common in Africa for anybody to disobey the President.  Therefore, the pointers are already there and the President being a political animal, the pointers are political. 

We have senior retired judges and some of them extremely respected, whose knowledge is sought extensively in SADC. I would expect that where Zimbabwe thinks that certain people are under qualified to interview somebody who is going to be their senior, there is a lot of resource.  It is abundant.  Other countries are crying for it.  They are sourcing from here.  Why do we not use our own? The Vice President has indicated that a number of countries are using the current amendment system which is being proposed.  One of them, of course, he referred to the United Kingdom where I think is a monarchy system – we understand how monarchs work.

          Secondly, there is reference to Trump. I would, on a lighter note, say that that example does not appeal to me.  I personally feel that Zimbabwe should be progressing towards a more democratic political dispensation and it is my submission that the action we are taking in this instance is regressive in terms of the quality of democracy we want to offer our people.   The point has been made that the Constitution has not been tested.  We have not been given empirical examples of where the Constitution has failed.  I believe that a Constitution is a very important document.  It is a document which you only tamper with when you see that certain tenets are being handled negatively.  If that does not obtain, I am left with questions, why, why, why?  I actually, as a citizen of this nation, have looked at the current process with a lot of respect.  I saw it as hybrid, I do not think that I would qualify what we are proposing here as a hybrid, I am not sure what the opposite of hybrid is.  I would not qualify it as hybrid.  

Finally Madam President, others have made the point that this may not be reversible, this is a determined effort in some direction.  We have seen certain determined efforts in certain directions and I suspect that those at a later stage, people have regretted taking certain steps.  If they had been a possibility that this could be changed, I would have persuaded people to re-look and I still persuade people in spite of a certainty that persuasion may not be accepted.   I still persuade people to relook at our decision.  I believe that if we had subjected the entirety of our Constitution to a Referendum, I would not see this proposal surviving a day.  I thank you Madam President.

*HON. SEN. MAVHUNGA: Thank you Madam President for affording me the chance to encourage this august Senate to accept the amendments brought by the Vice President.  I want to truly say that even if there were consultations during COPAC, there is a section in the Constitution that allows an amendment.  So, it is a foregone conclusion that it is given that the Constitution shall be amended and the public of Zimbabwe are aware of that. 

Even today, if I buy a new dress and has a hole, I should put a patch.  It is common cause that amendments should be done as well as patching.  The time frame is irrelevant. This view that the leader of the judiciary services, the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court should not be appointed by the President but instead interviewed by their juniors which was an embarrassment.  I believe the Vice President has got a good proposition.  The people that are going to be appointed to those three positions are going to be among the most senior judges who are already in the system.  There would not be other outsiders that are going to be brought into these positions.  In the Judiciary Commission, they have names that are given to them and they look into issues of integrity and qualifications. I am quite happy with this amendment, in fact certain countries are doing this and that is international best practice which we have always aspired to achieve.  We should go ahead with this amendment.  So, Hon. Senators, let us not waste a lot of time. Having made this point, I thank you.

*HON. SEN. CHIPANGA:   Thank you Madam President.  Firstly, I would want to thank the Vice President who has brought this Bill which is an amendment to the Constitution. Firstly, Madam President, we are all aware that when this Constitution was drafted, which is now being amendment inside 5 years, this was a compromised document.    There are certain sections if you were to closely examine it, there are sections that are going to run for five to ten years and this is the only country in the whole world where you have certain sections in the Constitution for five or so years.   So, the drafters were aware that this was a temporary position whilst we review to see if it was workable or not.

It does not come as a surprise that the Leader of the House who is also the Hon. Vice President has come here with this amendment because it has given us problems.  One person once described our Constitution as cutting and pasting.  There were a lot of disagreements instead of agreements, hence some of these sections were left to go as they were but the time is now that we are now settled and we now have to review what is workable or not.  The problem that I foresee Madam President – correct me if I am wrong, we are all aware that the world over, even some democratic countries like President Trump who is said to be unpopular, there is no country where if they want to appoint a judge, they should pick men and women from the streets and say these are the judges.  It is known that of the three that are there as we are looking at the drafting of the Constitution, they are three pillars. So, the three will be appointed from within the Judiciary.  Because they were certain people that did not like certain individuals, hence they decided to say the judges should elect their own.  The world over, the President appoints the judges.  We are the only exception because that was addressed by certain individuals.   There is no wisdom Madam President.  If we were to look for a headmaster, you look for a headmaster among the junior teachers and the temporary teachers and that the teachers will have to see who the headmaster will be, that is no democracy. 

There is also another school of thought Madam President that the people said this is the Constitution that they wanted. The truth of the matter is we are the people. We have realised that we were lost and that it did not work properly.

Yes, Justice Malaba was appointed Chief Justice and everyone, the Ministers and President saw that he was the most suitable candidate. No one is questioning the appointment of Justice Malaba in the entire country. We observed that we managed the situation on his appointment. We want transparency. We do not want people to groom their own successors in the judiciary. This is the issue that we need to address.

Others say we must be unique and different from other countries. Yesterday you said you were as educated and talked of international best practice in this august House. Now, you have turned the tables and now say you want to be different from others. What is wrong with international best practice? You should be consistent in the laws that we are passing. We should be aware that the same laws will affect us tomorrow. Tomorrow you may be the President of this country. Do not believe that it does not affect you but affects others. I think this is the problem that we have that we shall forever be subjects and not the people who run this country. If we knew that one day we will become the leaders, we would come up with laws that are good for us.

Madam President, let me leave space for others to add their voice by saying if we were to enact a law today and observe that it is not suitable for us, let it be, it is detrimental to our cause. If there are faults with any law, they should be amended. We should do that in terms of our Constitution, more so with this compromising document. A lot of years went by with people on this one. With those words Madam President, I would want to thank you.

+HON. SEN. A. SIBANDA: Madam President, I thank you for the opportunity that has been given unto me. I thank the Minister who is present here and who has brought this motion which is part of the Constitution of the country.  My fellow Hon. Members have spoken, those who contributed before me.

Madam President, I want to respect the Constitution of the country. It is not a laughing document, especially after the hard work that we did and someone stands up to say it is a document to laugh about. I know in our country, we have intellectuals, especially the Vice President and the President. Those are the people who know the rules of the country inasmuch as they are politicians as well. One thing that I know is I cannot stand up in this House and compare the President of Zimbabwe with the President of America. The President of America is just a businessman who is a dealer but the President of Zimbabwe is a politician.

It is my own view and whatever you say is your own view but in my view, you cannot compare President Trump and the President of Zimbabwe for the President of Zimbabwe is a politician compared to the President of America. We cannot follow what the Americans are saying including the party that President Trump belongs to and they have seen the mistakes that they have made. My wish is that we not compare the President of America with the President of Zimbabwe.

Maybe our President is not told the truth; especially if you raise a complaint in the presence of Ministers in this House. Yesterday I saw quite a number of Ministers attending Parliament and you can tell it is a whipping system that is being made that they attend. Most of the time, they are doing this so that the business of the day can go ahead. What I know is that we cannot have the same thinking. Yes, we can divide the House and if we are to do a secret ballot, I know some of them can vote otherwise for we can all not have the same thinking. The only way you can have the same thinking is through the whipping system.

We want to build Zimbabwe using proper facts. Most of the times when you are being sworn in, you raise the Bible and ask God to guide you to run this country according to the laws that are written in the Bible. Someone will go behind and threaten you that if you go according to what the Bible says and not according to the party, you will be at fault. When we were coming up with this Constitution, all the Zimbabweans, regardless of status contributed and we had to go through the Referendum.

What I want to urge you is that do not think they were playing. They are pushed based on the vows that you made when you were sworn in that you work for the people of Zimbabwe and not according to what you want. In most of the things, God will provide or correct. If there is one thing that I know it is that God loves Zimbabwe and when you take a closer look, you will realise that for real God loves this country.

Most of the Zimbabweans are educated and most of the times they go against the law just to sort someone who is in power. No one owns anyone in this country. Everyone is owned by God. Therefore, we should take …

THE HON. PRESIDENT OF THE SENATE: Order Hon Senator, I have really tried to give you as much time as possible.

HON. SEN. A. SIBANDA: Sorry, I withdraw.

+THE HON. PRESIDENT OF THE SENATE: Awulo uzopela awu debate itopic iyee.

+HON. SEN. A. SIBANDA:  Thank you Madam President for the correction.  I am one person who fears God and when I see someone going against God, I fear for I know that God can punish.  It is not that I am insulting the Hon. Vice President but all that I am saying is, let us not do whatever we are trying to correct by causing pain to other people.  We feel so much of pain because we also participated in coming up with this Constitution.  They have not implemented this Constitution for years now and put it into practice before we can amend it.  There is a Ndebele saying that says, try to sleep on the side where you have been hurt for that is the way you get healed.  My wish is, can our leaders try to implement the Constitution before we start amending it?  After having tested it, we can see whether it is working or not and then we can amend it.  You will see that everything else will be easy to amend, especially if it was put into practice.  How do we think God is going to take this seeing what we are doing to the people, what we are doing to ourselves especially as a House, we want to try and decide for everyone in this country and say we are the leaders without taking into consideration whether God is agreeing or not.  We are not supposed to be eating from one pot and the other pot.  I thank you.

HON. SEN. CHIEF CHARUMBIRA: Thank you Madam President.  Because it is about the Constitution, I will debate in English because the Constitution is written in English.  Madam President, I stand here after we celebrated the unity of this Chamber last week, showing that the Senate can unite because it is expected to be more mature and that the debates here are driven by wisdom and the good of the country.  We want as much as possible to distinguish ourselves from  the other forum.  Last week, there was unity over the rejection of the Adverse Report and we expect that we continue in that spirit of muonera pamwe tichiona zvakafanana.    Today, we have this amendment of the Constitution and when we debate ourselves, in my view as Senators, we should be guided by the objective of the Bill.  What is the objective, with what result?  Let us try to avoid other extraneous issues.  It is clear that the objective is to ensure that the conduct of recruitment and appointment of the head of the judiciary and the two other positions is done in a manner that ensures respect and dignity of that office.  That is what they are trying to do.  It is to do with the respect and dignity of that office.  Everywhere in the world, in every sector, private or public, whether it is Barclays Bank or Delta or major conglomerates of the world, we have never heard of the Group Chief Executive or the CEO being interviewed by middle management.  It is always the higher level, the board.  There is a good reason why it is done that way.  It is a misnomer that in the Constitution, it is a big document and we were tired towards the end and some of these things slipped through and now we realise it. 

Even the Senators in this room, if there were interviews and we say the councillors do the interviews, you will say no, the councillors are too junior; we cannot be interviewed by councillors.  You cannot even allow it yourselves.  So the objective is that the dignity of that office should be maintained by having the right people to appoint.  Having said that, I want to give an example in this Constitution, one correction we made, having been a member of COPAC Select Committee, we had an issue similar to this one.  We were very alert as chiefs and we corrected it.  It led to how chiefs are appointed.  Previously, any junior officer in Local Government or the DA would go and gather people and select the chief.  Sometimes you look at the person- hey!.  Then when you are appointed, he would say, uyu ndini ndakaita kuti aapointwe.  Uyu Ishe here uyu ndewangu uyu - very junior people saying that just because they were part of the process.  The President appoints but the process involves very junior people.  The dignity of our institution was compromised and it is a fact. 

During that process of the Constitution-making, we said we need to correct that.  That is why today we have a new process in this Constitution.  Now we are saying, let the chiefs assemble other chiefs, go and hear submissions from the families or clans involved and we are very happy.  At least by the time the name goes to the President to appoint a chief, it is chiefs themselves at the right level who are superior to a DA because a DA is junior to a chief.  We had this mismatch whereby a subordinate was recruiting the boss and we corrected it.  I think this is the same spirit that we are trying to have this afternoon.

Madam President, if we go to a university and other institutions for example, the Vice Chancellor is appointed by the President but who interviews them?  The principle is, you cannot have lecturers interviewing the Vice Chancellor.  It has not happened.  We should copy these institutions of academia where we get the best brains.  They have models of how you get the person at the top.  This Bill surely, I know you are politicians and you may want to debate as usual and differ which is part of everything but when we talk of democracy, I think we need to talk more about what is democracy.  Democracy is the rules and a Constitution to follow.  We should be bound by that Constitution.  Anything that is inconsistent is null and void. 

What I am saying is, we have put in the same Constitution amendment procedures.  The same democracy has said, you can amend this Constitution. That is very instructive.  It is constitutional to amend the Constitution.  If you go to Section 328 of the same Constitution, it talks about amendment of the Constitution.  We also agreed at the COPAC that the Constitution can be amended and that is what we are doing.  Now, we are fighting - why amend the Constitution but it is you who said we should amend it.  It can be amended but what is the procedure?  I think that is what should be debated upon here. 

You should ask the Vice President - are you following the right procedure in terms of amending?  We believe he is following the correct procedure.  The same Constitution says, you publicise, you gazette and that is what we should focus on because we agreed that the Constitution can be amended.  There is no timeframe that says after 10 years or after two days – as long as you follow that procedure.  In this instance, we are simply using the same. 

Someone said, if we go out to the people and we ask them, they may not support this but you said the only chapter that will be subjected to everybody is Chapter 4 – Fundamental Rights.  You are the ones who said that the other provisions, you can amend by two thirds majority.  Now you are saying, let us go to the people but you are the ones who said we do not need to go to the people.  So the procedure they are following is correct.  That is the emphasis I want to put here.  We are carrying out the right procedure and it is up to us then to vote or not to vote, but not that we should protest and say, why are you amending?  Then you are being undemocratic because we are actually rejecting the very law, the very Constitution that we agreed upon.  Let us not pick Chapter 2 on citizenship and say yakanaka, this one yakaipa.  The Constitution - we take it as it is; the whole package.  Whether it is bitter or it is good for you, accept it. 

I am saying, as Senate, I know it is fashionable for politicians to just beg to differ.  This amendment is harmless.  It is actually dignifying the office of the Chief Justice, his Deputy and the President of the High Court.  So, I stand to say fine, why do we not all support this amendment.  Thank you very much.

THE HON. PRESIDENT OF THE SENATE:  I just wish to advise Senators that really, we are at a point where we are just repeating what others have already said and there is no point in continuing to debate if we are all saying the same thing.

*HON. SEN. MASHAVAKURE:  Thank you Madam President.  I want to thank you for the opportunity that you have given me.  I am happy that I have listened to both parties.  Two or three say that the Constitution is a compromised document.  This is a confession to me the priest that it is you politicians who made a compromise that the Constitution did not come from the people.  If you look at Chapter 4, there is no amendment of Chapter 4 without a referendum and there is a rider to the clause that says when resources are available.

Our people were there at COPAC.  They never made such submissions as regards the disabled.  I am in agreement with those that want to amend it.  There are certain things that need to be amended.  They have quickly looked at the issue of the appointment of judges, but there are a lot of things that need to be addressed.

In my communal home, there are big needles that are used for sewing sacks.  They need to be looking for such needles to mend the Constitution.  They should not say to service providers, if funds are available.  There are no constitutions that give people the right to run away from their obligations by saying if funds are available.

I am happy that you have started with a new culture of amending the Constitution so that it becomes the people’s Constitution.  I am happy that all the politicians agree that this is a compromise document.  They did not take the people’s submissions.  Representation of the disabled is only me and Hon. Shiri who is here, but I looked at submissions made from Mashonaland West, Manicaland and Headlands.  They wanted more people that are disabled to represent them, but because this was a compromise document, it said the disabled are irrelevant, let us just give them two positions in the number of the people that are disabled.

When you go further Vice President, remember to increase representation to six or eight members of people living with disabilities because if you do so, you will be listening to what the people said.  They know, Senators have confessed that this is a compromise document.  They did not bring on board the people’s views. 

I am happy about the views that were raised in this august House.  There was a point that was raised by the Vice President regarding the judges.  The examples that were given - the American President, after appointing the person that he wants, goes through the Senate.  He has to be approved by the Senate.  If I were to have a bald head and my head becomes bigger maybe, the President would listen to us better next year.  I thank you Madam President.

THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. E. D. MNANGAGWA):  Madam President, may I, from the outset thank...

Some Hon. Senators left the Senate in protest.

THE HON. PRESIDENT OF THE SENATE: Order please!

HON. E. D. MNANGAGWA:...all the Hon. Members who have made contributions to this debate.  I will begin to reply to the Hon. Senator who has just left the Chamber, but the Senator will read my reply in the Hansard, Hon. Mlotshwa.  Her concern is that we are amending the Constitution less than five years since the Constitution came into operation with effect. 

That is not an issue of consequence at all as rather Senators contributed to the fact that it could have been amended the next day after it came into force.  What the Constitution provides is that there is a process of amending the Constitution itself, has those provisions stating that it can be amended and the process of amendment is provided for in the same Constitution.  Let Hon. Senators know that the Constitution is not cast in stone.  It is created by men, made into a Constitution by men and men can amend it.  It will never amend people, but people amend it.

With regard to the independence of the judiciary, the process of appointing judges has no relation to the independence of the Judiciary which is guaranteed by the Constitution.  The independence of the Judiciary relates to the freedom of a judge to determine a case before him or her without influence from outside.  So, that is the main core aspect of the independence of the Judiciary that they make their decisions without external influence.

The process we are changing is intended to give dignity to the office of the Chief Justice.  It is not proper, it does not give dignity to the office of the Chief Justice if juniors sit around the table to decide who shall be their boss and once appointed, then the junior will say if I were not myself you could not be in that chair.  So that must be removed.  I know that some Hon. Senators have very strong views about the process that this Constitution was as a result of an outreach programme nation-wide and the views that are in the Constitution are the views of the majority.  The amendments of this Constitution are views of the majority in Parliament.  So, whatever we are doing, we go by the views of majority and God loves the views of the majority.

          With regards to contributions made by Hon. Sen. Komichi, on the appointment of Justice Malaba as Chief Justice, the Government of Zimbabwe is actually a Government which obeys the rule of law. Currently, the law provides that the Chief Justice shall go through interviews and we allowed that process because that is the current law, until this becomes law - then the next Chief Justice will be affected by the new law.

Hon. Sen. Komichi also said we cannot just pick anybody to be a Judge like himself, Komichi.  Of course no, we cannot, he does not qualify.  The three issues that are raised, the first one - the constitutional qualifications may not permit him even to apply.  That is a fact of life.  He also indicated that we can have retired Judges to come and constitute the Judicial Service Commission (JSC).  No, the JSC is constituted through the provisions of the Constitution that the Chief Justice, Vice Chief Justice, Judge President, Supreme Court Judges and others constitute the JSC. 

So, we cannot move away from that and get some Judges outside that prescription by the Constitution.  He also said that if the process of interviews is followed, then there will be no errors.  No, errors are human.  Even if we follow that process of interviews, we will still elect people into office who are human beings and human beings can make mistakes.

Hon. Sen. Khumalo, the Trump issue, she said President Trump is a businessman and President Mugabe is a politician.  I am not so sure whether President Trump will agree that he does not know politics.  I believe that he won the Presidency because he was able to put a programme which was political.  However, the President of the Republic of Zimbabwe appoints the Chief Justice, after consultation with the Judicial Service Commission.

Hon. Sen. B. Sibanda wants me to clarify the difference between the other heads of the two pillars of the State and the Head of State.  I should again repeat, the President as Head of State - the State means the three pillars.  He is Head of the three pillars.  It is clear in black and white and there is no other.  He is citizen number one, there are no two citizens on number one; only one, the Head of State, and he also becomes President of the Republic.  He wanted me to explain that one, I hope he will read the Hansard and will get to understand the difference between the other heads of the two pillars, as distinguished from the Head of State, who is the President, Mugabe.

He asks why we should abandon interviews.  We are abandoning interviews in relation to the Chief Justice, Deputy Chief Justice and the Judge President because those are senior offices of the Judiciary branch.  We feel that they should not be subjected to humiliation by their juniors.  They must keep the dignity of the office and we have that duty to give them that dignity.

Hon. Sen. Mavhunga supports the Bill.  I am grateful that you support the Bill.  You actually assisted me in answering some of the questions, that the Constitution has no timeframe with regards when it can be amended.

Hon. Sen. Chipanga, you are correct that there are areas where we were unable to agree and we compromised.  This is why in Schedule Six, you find there are provisions which have a time limit, five or ten years limit, because we were not able to agree on a definite period on those areas.  We are still going to make sure we correct everything.  Let me assure the Senate that this is not the only thing we intend to amend in the Constitution.  There are many other areas which we are looking at, which we feel should be amended.

It is not a question of being a ZANU PF Government in power, but it is a question of a democratic process.  A democratic process requires that the party that has the majority after a general election should form a Government and it has a programme.  If the Constitution forbids the implementation of a programme, they have a choice to amend the Constitution so that the programme can go forward.  If next time they are not in power and some other political party comes in and thinks that they must amend, the Constitution allows them to amend - but for now we are amending, because we feel it must be amended.  

Ho. Sen. A. Sibanda, is worried that we whipped people to come and vote.  This is democracy.  The ZANU PF Chief Whips never whipped MDC Members; they only whipped ZANU PF Members.  I am sure that there are whips also on the MDC side who whip MDC Members.  So, there is nothing bad with whipping your Members to come to Parliament, as happened yesterday.

The question of secret ballot, no, if you are a member of a political party, it means that you adhere to the policies and exercise the policies of that party.  You should then stand upright and say I am a member of this political party which brought me to Parliament and not go to secrecy.  If you do not like your party, you can always resign and an election can be conducted so that somebody who can represent the party can be elected.  Senators as well as Members of the National Assembly are representatives of the people.  You represent people, but if you reach a stage where you feel you do not anymore represent the people who brought you here, the door is open.

Hon. Sen. Chief Charumbira, I am very grateful, you were able to articulate the provisions of the Constitution, especially the objectives of what is happening.  The core issue is to amend the process of how a Chief Justice, Deputy Chief Justice and Judge President are appointed.  That is what is being amended, so that we give dignity to these people because they are very important in the structure of the State.

You gave useful examples like a University Chancellor; you cannot assemble lecturers and say who among you can we make a Chancellor?  Even teachers, we do not assemble them to choose a Headmaster.  Some other authority determines who shall be the Headmaster or Vice Chancellor.  I am also happy that Hon. Sen. Mashavakure stated that the requirement in the Constitution to other provisions is by two thirds majority, only Chapter Four and other aspects would require a referendum.  Not all the provisions require a referendum.  In particular this one does not require a referendum, it only requires two thirds majority.  With those replies, comments, statements or contributions by Hon. Senators, Madam President I rest my case.

          I move that the Bill be 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. 1) BILL [H. B. 1, 2017]

House in Committee.

Clauses 1 to 8 put and agreed to.

House resumed.

Bill reported without amendments.

Third Reading: Tuesday, 1st August, 2017.

On the motion of THE MINISTER OF DEFENCE (HON. DR. SEKERAMAYI), Senate adjourned at Seven Minutes past Five o’clock p.m.

 

 

 

 

           

 

 

Senate Hansard Senate Hansard 26 July 2017 Vol 26 no 73