Law drafters should embrace spirit of Constitution

via Law drafters should embrace spirit of Constitution – NewsDay Zimbabwe July 31, 2015

THE Justice, Legal and Parliamentary Affairs Portfolio Committee this week conducted public hearings on the General Laws Amendment Bill and the Criminal Procedure and Evidence Amendment Bill that are currently before the National Assembly.

The hearings were conducted in Harare, Bulawayo, Gweru, Masvingo and Mutare.

The hearings are in response to section 141 of the Constitution which requires Parliament to facilitate public involvement in its legislative and other processes and in the processes of its committees. The same provision requires Parliament to ensure that interested parties are consulted about Bills being considered by the National Assembly and the Senate. Public hearings are the main mechanism used by Parliament to implement section 141.

It was clear from the submissions by various groups and individuals that attended the hearings that public policymaking in this country is still plagued by numerous challenges ranging from limited capacity to craft good public policies and reluctance by policymakers to embrace change in line with the spirit of the Constitution.

The problem begins with the drafting itself. The continued lack of clarity in the language used is an issue of major concern.
Drafters should be drafting laws that users can easily comprehend. This is because the law is not only for the legally qualified, but also for the layman. In fact, it is the common man in the street who is the greatest user of the law. Drafters in the Attorney-General’s Office should therefore bear this in mind when drafting legislation. Members of Parliament should not pass a law that is not drafted in a clear and concise manner. It is not good law, period.

The other serious issue is failure by the drafters to fully appreciate the spirit of the new Constitution and align laws accordingly. The spirit of the new Constitution is about an open society, fostering fundamental human rights and freedoms, the rule of law, equality of all human beings, separation of powers between the three arms of government and accountability of institutions and agencies of government to the people through Parliament.

It is evident from the laws that have recently been brought to Parliament that the drafters are still living in the previous constitutional dispensation. They are not embracing the spirit of the Constitution highlighted above. It may therefore be important to familiarise these drafters with the spirit of the Constitution before any serious alignment takes place.

Examples of failure by the drafters to embrace the spirit of the new Constitution abound. We continue to see enabling legislation for the independent commissions not providing the necessary independence. Drafters still want to accommodate provisions for ministerial interference when section 235 of the Constitution says independent commissions “are independent and are not subject to the direction and control of anyone”. The same provision goes on to say that “no person may interfere with the functioning of the independent commissions”.

We also have a situation in the General Laws Amendment Bill that confers Parliament with too much power to convict and sentence members of the public for contempt of Parliament. There is a provision that authorises Parliament to impose a harsher penalty than that which an ordinary court would impose.

Surely, this is tantamount to Parliament interfering with the work of the courts and a clear violation of the constitutional principle of separation of powers. Parliament must focus on making the law and leave interpretation to the Judiciary and enforcement to the Executive.

The following are some of the provisions in the Criminal Procedure and Evidence Amendment Bill that violate the principle of separation of powers or the people’s rights and freedoms:

● The delegation of the Prosecutor-General’s authority under clause 3 to police prosecutors is not ideal as they then assume both arrest and prosecution powers

● Clause 6 grants the Prosecutor-General discretion on the issuance of a certificate to prosecute to third parties, which discretion is open to abuse.

● Clause 10 grants the authority to issue arrest warrants to peace officers in addition to magistrates and judges. Peace officers consist of a wide array of officers defined by other statutes. It would have been ideal to leave this power under magistrates and judges to limit the abuse of arrest powers

● Permission to detain without intention to arrest granted under clause 12 is open to abuse by the police and should be reviewed
One of the issues that came out strongly from the hearings is that the alignment process so far is not real alignment. It is more about editing and changing titles and words in current statutes to conform to those in the Constitution. I cannot understand why such a function cannot be left in the hands of the law reviser than bring such work to Parliament in the form of Bills.

Real alignment is therefore about drafting new substantive statutes to address inconsistencies between legislation and the spirit of the Constitution. A clear interpretation outline of the provisions in the Constitution is needed to ensure that courts are bound by the letter and spirit of the Constitution in their judgments.

Serious dialogue is therefore needed between the drafters in line ministries and the Attorney-General’s Office, the portfolio committees and civil society so that the alignment process takes full cognisance of the spirit of the Constitution of building a democratic and open society where good governance reigns supreme.

Translating the Constitution into all officially recognised languages, and disseminating it as widely as possible is long overdue. This will allow the majority of the people to appreciate the spirit of the Constitution and demand that public policies are formulated accordingly. We cannot continue to produce half-baked public policies and claim to have aligned laws with the Constitution.

●John Makamure is the Executive Director of the Southern African Parliamentary Support Trust. Feedback: