Introduction to the Constitutional Letters

As Zimbabwe is engaged in the process of constitutional reform, this column will from time to time feature ‘constitutional letters’ addressed to fellow citizens of Zimbabwe. They are designed to highlight key areas of constitutional reform and to encourage rigorous citizens’ debate.

Having been involved in legislative making processes in a professional role in the past, I have observed how the consultative process is important but also that citizens need to be knowledgeable to participate effectively in such consultations. I have also observed that if not carefully monitored the consultative process can be a smokescreen and citizens can be hoodwinked into thinking that they are playing an important role when in fact the contents of the constitution will come down to the text as written by a small group of men (and perhaps, some women) who will do the drafting. It is important to remain vigilant at all times.

In these letters, I will pay particular attention to the text of the Constitution and highlight how seemingly innocuous words in a clause can change its whole meaning. Unless we pay attention to the written word, this whose consultative process could end being an expensive waste of time.

My first letter is long but I ask for your patience. Constitutional issues are not lighthearted matters. They demand patience. In my endeavor to explain and simplify issues, I will necessarily employ a number of examples. If you find the examples a little tedious, please do skip them – I know most of you are of an intelligent kind.

This first letter seeks to highlight a key weakness in the current constitution that has exacerbated levels of human risk, which consequently has contributed to mediocre standards of governance. The issue is about the appointment of persons who are charged with executing key functions of the state.

These persons, whom we shall refer to as ‘human agents’ of the state, play a significant role in the discharge of its functions and consequently, their conduct, beliefs and attitudes determine the nature and level of risk that can affect the state’s performance. The risk arising from these human agents is what we are referring to as ‘human risk’. Examples of these human agents range from the holder of the highest office in the land, the President, include people’s representations in parliament (MPs) through to holders of key offices mandated by the constitution and secondary legislation, for example the Attorney General, Judges, Commissioners, Reserve Bank Governor, heads of state companies, etc.

The manner by which these human agents take office is of great importance because it impacts on the levels of risk they bring to the operations of those offices.  Companies in business with awareness of human risk know that the starting point of reducing this type of risk is a rigorous interview process, where the company tries to weed out rogues whose character and conduct might pose extreme risk to the business.  In matters of political governance, the two key methods of selecting human agents to execute state functions are the election and appointment processes.

As you probably know already, the election is the primary selection mechanism for managing human risk in politics. In an ideal world, it gives citizens control over the choice of who governs them. It enables citizens to nominate and choose who amongst them should be entrusted with powers of government.  The election process represents the ‘interview process’ with the citizens as the selection panel. The elected leaders become direct appointees of the citizens. By this method, citizens can minimize human risk by selecting the best candidates for the tasks. A further constraint on human risk is inherent in the principle that those who appoint can also disappoint and this is given force by periodic elections since leaders chosen in one election know they can be removed in the next if they do not perform to citizens’ expectations.

However, all this is on the assumption that the election process is perfect. The reality is that it is not and in Zimbabwe’s case, recent experience has shown that the election process itself is affected by extreme levels of human risk. The reason for this circumstance, as we shall see a little later, is that the human agents responsible for managing the election process are appointed by those who should be submitting themselves to elections.

This leads us to the second method of selecting human agents of the state: the appointment process. How are these human agents appointed to the offices of Reserve Bank Governor, the Attorney General, Police Commissioner-General, Judges, Public Service Commissioners, heads of state companies, etc? Is the appointment process designed to reduce human risk attendant upon the human agents who execute state functions? It is submitted that by and large the appointment process is inherently weak and actually accentuates the human risk.

Under the current constitution, power of constitutional and legislative appointments to key institutions of the state are conferred on the President with limited and often ineffective checks and balances. The net effect is that the person holding presidential office wields excessive powers and is largely at liberty to appoint persons of his choice. Consequently, in such a set-up, the fault line of human risk extends from his office to all those who are appointed by him. For the sake of clarity, let us consider a few examples:

Fellow citizen, let’s look the appointment of judges of the High Court and the Supreme Court of Zimbabwe. Section 84 of the current constitution confers power on the President to appoint judges. The only pre-condition is that the President should make the appointment “after consultation with the Judicial Service Commission”. This might appear to mean something but in reality it is a worthless pre-condition for at least two reasons:

First, the President is not obliged to follow the advice of the Judicial Service Commission (JSC) - all he is asked to do is to ‘consult with’ the JSC. He is at liberty to ignore its recommendations. What is to be done if the view of the President differs from that of the JSC? Section 84 (2) says simply that he must inform the Senate. But what can the Senate can do upon such notification? Nothing is provided for in the constitution, making it a nominal process that provides no real constraint on the President’s power.

Secondly, it is worth noting that the JSC that he is supposed to ‘consult with’ consists of members who are also appointed by the President. So, in effect, the redundant requirement is for the President to ‘consult with’ persons whom he would have appointed in the first place!  The net effect is that the President holds exclusive power to appoint judges and there are no effective checks and balances to limit the risk attaching to having so much power. It is because of the weakness of this process that there have been complaints and allegations by critics and opposition parties in the past that the judiciary is packed with persons that are associated with or sympathetic to President Mugabe and Zanu PF.

Similarly, under section 76 of the Constitution, the President has the power to appoint the AG also subject to “consultation with the JSC”. The above criticisms regarding the appointment of judges apply with equal force to this case. (I am aware that this has been an ‘outstanding issue’ under this coalition government with the two MDCs arguing that President Mugabe should consult with their leaders before appointing a person to this office. No doubt they have strong reasons for disagreeing with the appointment but the fact remains that the constitution as presently worded, even with Amendment No. 19, is less than satisfactory.  The new constitution must make the checks and balances very clear).

This is an important office responsible for two key functions: advising the government and prosecuting criminal matters on behalf of the state.  If the human agent holding this office poses excessive risk, it could seriously affect government’s image and performance. In one of the future letters, we shall discuss why it is important to consider splitting these roles as another way of limiting risk of abuse of power.

However, fellow citizen, a worse case is to be observed in respect of the PSC, responsible as you know, for managing the civil service which ought to remain apolitical. Section 74 of the Constitution gives the President unconditional power of appointing Commissioners. There is not even a modest attempt to suggest that he should consult with anyone. The curb on human risk in the appointment process here is almost zero.

There have been attempts to change the appointment  procedures for some key bodies such as the ZEC where the President has the power to appoint the Chairman but only after consultation with the JSC and the Parliamentary Committee on Standing Rules and Orders (hereafter, “the Parliamentary Committee”). The other eight members are also appointed by the President from a list of nominees submitted by the Parliamentary Committee.

Again, fellow citizen, this might seem to contain some checks and balances on Presidential power but as we have observed above, the JSC is a creature of the President since he appoints its members. The Parliamentary Committee is a useful check but only if it consists of members from diverse political parties. If it is dominated by the party to which the President belongs, as was the case prior to the 2008 elections, its counterbalancing effect becomes severely impaired.

The problem, fellow citizen, as we have observed in the above examples, is that the constitutional and legislative procedures for the appointment of human agents to key state institutions is fraught with weaknesses that expose it to higher incidence of human risk. Under the present system, the person holding the office of the President has an unfair advantage over the rest of the citizens. This is more evident in elections where the President may also be a contestant. He has the lion’s share of the power to appoint the human agents who are responsible, directly or indirectly through their institutions, for running those elections. In a boxing match, he would be the president of the boxing federation who sets the rules and appoints the referee and on match day, he would put on his gloves to fight an opponent in the ring – the match being judged by the person that he would have appointed. It can’t be a fair contest.

In conclusion, fellow citizen, I must qualify my thoughts on this, and in all letters that will follow, by saying that this criticism applies equally regardless of the identity of the person holding the office of the president. It doesn’t matter whether it is Mugabe, Tsvangirai or Mutambara – any one of them given so much power over the appointment process will have an unfair advantage over others. Mugabe is not going to be the President forever and if there is criticism that he has held too much power under the present constitution, there is nothing to say Tsvangirai or Mutambara would not do the same if left to their own devices.

We are not creating the new constitution for or against specific leaders. We are doing so for both the present and the future. The point is that it increases the threat of human risk if power to appoint persons to key state institutions reposes in one person.  We have not considered the alternatives because, as you can see, this letter is already too long. We shall reserve that for the next letter. The purpose of today’s letter was to demonstrate the weaknesses in the current system of appointments.

Feel free of course to ask questions or to make contributions to the issue that has been raised in this letter. It’s been pleasure writing.
waMagaisa