𝗪𝗛𝗢 𝗛𝗔𝗦 𝗧𝗛𝗘 𝗔𝗨𝗧𝗛𝗢𝗥𝗜𝗧𝗬 𝗧𝗢 𝗜𝗡𝗜𝗧𝗜𝗔𝗧𝗘 𝗔 𝗕𝗜𝗟𝗟 𝗜𝗡 𝗭𝗜𝗠𝗕𝗔𝗕𝗪𝗘?

President Mnangagwa and the Powers of the President in the Constitution

𝗪𝗛𝗢 𝗛𝗔𝗦 𝗧𝗛𝗘 𝗔𝗨𝗧𝗛𝗢𝗥𝗜𝗧𝗬 𝗧𝗢 𝗜𝗡𝗜𝗧𝗜𝗔𝗧𝗘 𝗔 𝗕𝗜𝗟𝗟 𝗜𝗡 𝗭𝗜𝗠𝗕𝗔𝗕𝗪𝗘?

The other day, I read a very interesting write-up by Brian Mari explaining that we need to focus on CAB3’s inception, who initiated the Bill and interrogate whether the process followed the governance processes laid out in the constitution. In his analysis CAB3 is null and void ab initio (from the beginning) and here is why:

1. The only body in Zimbabwe that can change the Constitution is the Legislature and not Parliament. The two are different in Zimbabwe.

2. The Legislature in Zimbabwe is not Parliament, as is in most other countries. In Zim Legislature is the President and Parliament together (see s117). BUT here is where it gets tricky:

3. When you look at the functions of both Parliament (s118) and the Presidency (s110(1)), neither is given the power to change the Constitution individually, more so initiate a Bill, worse still change Presidential powers. CAB3, in its own inception and intent, changes the prescribed powers and functions of the President in constitution.

4. On this note, many of us have focused on conflict of interest in Cabinet introducing the Bill, instead of questioning whether the Cabinet or Presidency have the authority to initiate a Bill.

5. What this means is that our President or his Cabinet, in initiating Constitutional Amendment Bill 3, have assumed powers that the Constitution never gave them, to initiate a Bill.

6. And when a President or any branch of government exercises power it was not given to them by the Constitution, it is in breach of the constitution.

I challenge you to look at the functions of the President and Parliament and show where they get power to initiate a Bill or change Constitution. Even the Legislature changes constitution but does not initiate a Bill to change constitution.

7. The President may sign a Bill, call for an election, refer a Bill to the Constitutional Court, call a referendum, etc., but nowhere is he or the Cabinet empowered to initiate a Bill according to their outlined functions.

8. So this means that CAB3 is null and void ab initio, because Cabinet initiated it without authority.

9. So how did the President and Cabinet initiate CAB3 and all other amendments previously — CABs 1 & 2? In the same way—making them invalid too.

10. Additionally, it’s important to note that the Legislature itself in s118(a) is given the power to amend the constitution in accordance with s328, BUT no where in that clause is the Legislature given authority to initiate “a Bill” to change the constitution either.

So this got me thinking:

11. How should these Bills have been initiated in the first place if we follow Brian’s constitutional governance and authority processes?

12. The only time that the Legislature (President and Parliament together) can change the existing Constitution is when “a Bill” is initiated first and brought to them. Who initiates the Bill? It is initiated by the AUTHORITY from which they derive power.

13. Who is that authority? The people of Zimbabwe, or “vene vayo” are the only ones who can initiate “a Bill” or petition parliament to change existing legislation or the constitution according to s149.

14. So how should CAB3 Bill have been initiated by vene?

15. Through a party—in this case, the majority party (ZANU PF)—

(i) deriving a mandate through resolutions properly made through its internal processes. So in this case, Congress, not Conference, must pass a resolution for ZANU PF MPs to:

(ii) raise a motion in Parliament and get majority vote,(iii) then President as part of the Legislature with Parliament calls for a referendum see s110(f), since the Legislature may change the Constitution but can’t initiate A Bill,

(iv) the referendum then confirms the AUTHORITY from all Zimbabweans and not just ZANU PF who initiated the petition. This is why the Constitution gives the President and Cabinet the responsibility to call for a referendum on any matter in line with the law.

16. So referendums are not only held when the Constitution stipulates, but they must also be held whenever the President needs to confirm that the people want a change to the Constitution after Parliament has been petitioned by citizens, either directly or through a party. This is why Mugabe called for two referendums: one in 2000 to amend the Constitution and another in 2013 for the creation of a new Constitution, even though neither constitution mandated it. He did this because he needed the authority of the majority of the people to initiate a change to the Constitution and the creation of a new Constitution after being petitioned by the people.

Without the people initiating a Bill or requesting a change to the Constitution, and then granting authority for that change through a referendum, such a change coming from Cabinet originates from those who are only authorised to uphold the Constitution, not to change it. This makes such a change illegal.