In Constitution Watches 33 to 38 of 2013, which were published between August and October last year, we set out some of the legislative changes that needed to be made in order to give effect to the new Constitution. Now that the Constitution has been in force for about a year [the Declaration of Rights came into operation on 22nd May, 2013, and the rest of the Constitution on 22nd August, 2013] it seems an opportune moment to assess what has been done so far to bring our laws into line with it.
We shall begin with the legislative changes that should have been made before or as soon as possible after the Declaration of Rights came into force on the 22nd May last year. To the extent that they have not already been done — and most of them haven’t — these changes are very urgent indeed.
Legislative Changes Needed Immediately
1. Electoral Law: An Electoral Amendment Bill, which is intended to bring the Electoral Act into line with the Constitution, was finally passed by Parliament on 28th May and awaits presidential assent and publication in the Gazette. It is woefully inadequate and fails to address several constitutional issues: for example, it leaves the preparation of voters’ rolls in the hands of the Registrar-General, whereas the Constitution makes ZEC responsible for them; and it does nothing to rectify the anomalous situation of the Electoral Court. For more details, see Bill Watches 11 and 12/2014 of 4th March. A new amendment Bill to remedy these deficiencies should be prepared as soon as possible.
2. Citizenship: The Constitution confers citizenship on most people born in Zimbabwe, whether or not they are also citizens of another country; but it seems they have to go to court if they want to enjoy their rights as citizens. The Citizenship Act must be amended as soon as possible to make their rights clear. In addition, the Citizenship and Immigration Board referred to in section 41 of the Constitution needs to be established. Nothing has yet been done in this regard.
3. Criminal Law and Procedure: Several laws need to be amended to bring our criminal justice system into line with the Constitution:
a. The Criminal Procedure and Evidence Act does not give effect to the rights of arrested, detained and accused persons set out in sections 50 and 70 of the Constitution. Criminal trials that violate those rights are invalid even though they may have been conducted in accordance with the Act.
b. The National Prosecuting Authority Bill, though through Parliament, has not yet been promulgated as an Act. Even when it is, a Board under its terms will have to be set up to appoint prosecutors, and any trials that are conducted by prosecutors who have not been properly appointed are invalid.
c. The Criminal Law Code contains several provisions which are unconstitutional. For example, it makes defamation a criminal offence. As the Minister of Media, Information and Broadcasting Services has rightly pointed out, this is unconstitutional.
d. The death penalty, as pointed out in Constitution Watch 38/2013, is unconstitutional in the form in which it is reflected in the Criminal Law Code and the Criminal Procedure and Evidence Act. These Acts must be amended to make the position clear.
4. Rules of court: Nothing appears to have been done so far to enact rules of court to allow the Constitutional Court to exercise its powers properly. The rules under which the court is currently operating were enacted in 1964 — 50 years ago.
5. Provincialisation: The Constitution has established provincial and metropolitan councils, and members have already been elected to them. No legislation has yet been prepared to regulate the procedures of the councils and give them powers.
Other Legislative Changes Needed
A great number of other changes must be made to our law in order to make the Constitution fully effective. These changes are not as urgent as the ones listed above, but they should be made as soon as possible so that people can enjoy the benefits the Constitution was supposed to bring them. [Note: What follows is not a complete list but gives an idea of the amount of work needing to be done.]
1. Gender equality: Many laws discriminate between men and women, and must be amended to remove that discrimination:
a. The Guardianship of Minors Act: This Act assumes that fathers are the natural guardians of their children, but gives mothers sole custody in the event of the parents separating. Section 80 of the Constitution, on the other hand, gives women and men equal rights in this regard.
b. Marriage law: The age at which people may marry [currently 18 for boys and 16 for girls] must be made the same for both sexes. Also, the law which governs marriage is in some instances the law of the country in which the husband is domiciled: again, this must be changed so that it is not gender specific.
c. Polygamy: Our law recognises polygamous customary marriages, i.e. customary marriages in which a man has two or more wives. Gender equality demands that if men are allowed two or more wives, women should be allowed two or more husbands. That, however, is a legislative change that may need more than a little care.
2. Children: Legislation must be introduced to ensure that children born in Zimbabwe are accorded the rights conferred on them by section 81 of the Constitution, in particular:
a. the right to birth certificates;
b. the right to be heard in court cases affecting their interests.
3. Good governance:
a. Disclosure of assets by public officers: All State employees must be required to disclose their assets under legislation mandated by section 198 of the Constitution.
b. Codes of conduct: To comply with sections 106 and 198 of the Constitution, one or more Acts of Parliament must be prepared to prescribe codes of conduct for Vice-Presidents, Ministers and all public officers.
c. Standards of good corporate governance: Again under section 198 of the Constitution, an Act of Parliament must lay down standards of good corporate governance for parastatals and other State-controlled entities.
d. Conditions of service for parastatal heads: Under section 316 of the Constitution, Acts setting up parastatals have to be amended to provide for term-limits and performance-related contracts for chief executive officers of parastatals.
[Despite the fuss over salaries paid to parastatal heads, there has been no progress on this front.]
4. Security services and the Civil Service:
a. The Public Service Act must be amended to ensure the political neutrality of the Civil Service, as required by section 200(5) of the Constitution and to make provision for the enhanced powers of the Civil Service Commission.
b. The Acts regulating the security services — the Defence Forces, the Police Service and the Prisons and Correctional Service — must be amended to ensure the political neutrality of members of the services, to establish independent complaints mechanisms required by section 210 of the Constitution, and to provide for the enhanced powers of the various service commissions.
c. Measures must be taken to ensure that the Central Intelligence Office is non-partisan, professional and subordinate to civilian authority as required by section 224 of the Constitution.
5. Local government: The Urban Councils Act and the Rural District Councils Act must be amended to bring them into line with Chapter 14 of the Constitution. For example, councils must be given autonomy within their local spheres and an independent tribunal must be established to deal with the removal of councillors as provided by section 278 of the Constitution.
6. Traditional leaders: The Traditional Leaders Act has yet to be amended to give chiefs the independence to which they are entitled under Chapter 15 of the Constitution, and to set up the Integrity and Ethics Committee mandated by section 287 of the Constitution.
7. Property: The Land Acquisition Act must be replaced with a new Act giving property owners the protection against expropriation conferred by section 71 of the Constitution.
The Government has done nothing to bring about any of these changes, apart from getting two Bills through Parliament, neither of them yet gazetted as Acts. As pointed out earlier, the Electoral Amendment Bill is a half-hearted measure which does not bring the electoral law fully into line with the Constitution; and the National Prosecuting Authority Bill is only the first step in legitimising appointment of prosecutors.
It is deeply disturbing that the Government has not done more to implement the Constitution. The rule of law, which is a principle enshrined in the Constitution, entails respect for the law — and particularly for the Constitution itself, which is the highest law of the land. If the Government does not respect the Constitution, what law will it respect?