Constitutional amendment blurs judiciary autonomy

By | February 7, 2017

“WE are slaves of the law that we may be free,” goes a legal truism which underlines the whole essence of the law.

Source: Constitutional amendment blurs judiciary autonomy – NewsDay Zimbabwe February 7, 2017

guest column: LEARNMORE ZUZE

This is by way of saying that in the absence of law, repression, anarchy and injustice would reign supreme.

Whether we choose to call it the Constitution or legislation, the law exists fundamentally that people may be free.

It is the law that fosters order that we may ultimately enjoy freedom.

It, however, benumbs logic when some legal minds in the country strangely and quite contrary to the spirit and letter of the law back arbitrary amendments to a document as inviolable as the Constitution.

Every amendment to the Constitution must be treated with the greatest suspicion, especially an amendment coming only three years after the Constitution took effect.

Amendments, no matter how small, deserve to be put under a powerful microscope because the general assumption is that the Constitution is the mind of the Zimbabwean people, which cannot be changed by a few.

The trias politica doctrine is the globally esteemed democracy-grounded philosophy that there has to be a strict separation between the three independent powers in every State for the legislature, the judiciary and the Executive.

This distinction is, regrettably, becoming blurred in Zimbabwe. There is little doubt now that Zimbabwe passes for a country where only a few things are impossible, where even the supreme law can be amended hastily and at will
The Constitution of a country, anywhere in the world, is deemed sacred, with power that transcends that of every other law.

The Constitution represents the collective voice of Zimbabweans. It is no wonder that the constitution-making process itself is expressly made out to be painstaking as a mechanism to ensure comprehensiveness. It cannot be changed willynilly and with the rapidity we saw.

At the centre of principles surrounding the making of a Constitution is entrenchment.

Entrenchment being that very important provision which makes amendments to a Constitution either more difficult or outrightly impossible to effect.

It is a deliberate legal mechanism to protect the citizenry from governments’ arbitrariness.

A Constitution is that good piece of writing which “enslaves” (read protects) us that we may be free.

A Constitution should be entrenched. It should never be something liable to capricious and mean-minded alterations.
It is a document bearing the signature of the whole nation and no one individual, no matter how exalted their station, should be able to alter it as they deem fit.

Zimbabwe has recorded a new low, constitutionally speaking, by bringing an amendment to a Constitution only three years old.

The recent Constitution of Zimbabwe Amendment (No 1) Bill gives the President unfettered powers to appoint the Chief Justice, Deputy Chief Justice and Judge President.

While there is talk of consultation with the Judicial Service Commission and involvement of the Senate, it is apparent that this Bill is essentially unilateral: “For the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.”

This, to all intents and purposes, conflicts with trias politica as much as we may defend the President’s prerogative to appoint judges.

The President only has to inform the Senate, which has no say in the final decision.

To think that only three years ago, Zimbabweans voted for a new Constitution to put an end to the very extensive powers that are yet again being conferred on the Executive betrays the candour of the whole cumbersome process.

And why this amendment would be so hurriedly effected defies the mind.

While some may argue in favour of this move for political expediency, this makes mockery of the sacred document that should be the Constitution and certainly scares away potential investors.

No sane investor plants their money where the rule of law is not respected.

In voting for a new Constitution, the people of Zimbabwe spoke boldly against an imperial presidency, but it seems political expediency got its way against the will of the people.

One can only ask whether it was necessary to put millions of dollars into the exercise only to start shredding the same Constitution before alignment of laws has been completed.

It is a throwback to the post-Rhodesian era. This grating of the Constitution casts a dark shadow on a supposed democracy and betrays clandestine political motives far removed from achieving the common good.

No one would bother if factional fights continued unbridled confined to politics, but for factional fights to come in the way of the will of the power is unacceptable.

Zimbabwe, as a country, has also betrayed the donor community, which poured millions towards the process meant to democratise the country.

The amendment we all thought would not happen has become a reality, contrary to the voice of millions, who voted for the current Constitution.

We now have a furrowed state of affairs; the Executive cannot be kept in check by an arm that is subordinate to it. It’s a step towards absolutism. Only the legislative arm can now claim real autonomy.

The little that exists of democracy in Zimbabwe is under grave threat.

Learnmore Zuze writes in his own capacity. E-mail: lastawa77@gmail.com

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