Insights into Revised Draft Constitution

The Sunday Mail
Published: 18/03/2012

Following the publication of the first draft of the proposed new constitution produced by the Constitution Select Committee, the drivers of the constitution-making process were forced to go back to the drawing board to review the contentious provisions. Among such provisions were proposals around the tenure of the President and the appointment of senior public officials. Copac has “refined” most of the clauses in the initial draft and will table its progress report to the management committee tomorrow after which the refined document will be presented to the inclusive Government principals for scrutiny. Today, we publish excerpts of the latest document, comparing new provisions and those captured in the first draft. For the full text, visit: www.sundaymail.co.zw
 

Chapter 2 National Objectives
2.3 (4) (New provision in refined draft): The State must ensure that, where appropriate and practicable, the people of an area benefit from the resources in that area
2.5 (3) (New provision in refined draft): All State and governmental institutions and agencies at every level must take measures to ensure due respect, honour and dignity of traditional institutions.
2.7 Promotion of Gender Balance
Refined Draft
(1) The State must promote and ensure the full realisation of gender balance in all Constitutional, State and Governmental institutions and agencies.
(2) The State must take reasonable measures, including legislative measures, to ensure that there is no more than fifty percent representation of one gender in all Constitutional, State and Governmental institutions and agencies.
Old Draft
1) The State must ensure gender balance and a fair representation of marginalised groups on all constitutional and other governmental bodies
2) The State must promote full participation of women in all spheres of Zimbabwean society on the basis of equity with men

2.15 Marriage
Refined Draft
(a) no marriage is entered into without the free and full consent of the intending spouses.
(b) everyone of marriageable age is free to marry another person of the opposite sex.
Old Draft: No clause

3.1 Zimbabwean citizenship
Refined Draft
(1) All Zimbabwean citizens are equally entitled to the rights, privileges and benefits of citizenship and are equally subject to the duties and obligations of citizenship.
(2) It is the duty of every Zimbabwean citizen —
(a) to be loyal to Zimbabwe
(b) to observe this Constitution and to respect its ideals and institutions;
(c) to respect the national flag and the national anthem; and
(d) to the best of their ability, to defend the sovereignty of Zimbabwe.
(3) All Zimbabwean citizens are amongst others entitled to the following:-
(i) the protection of the State wherever they may be.
(ii) to a passport and other travel documents
(iii) identity documents
(iv) registration documents
(4) Zimbabwean citizenship may be acquired by birth or registration.

3.1 Zimbabwean Citizenship
Refined Draft
All Zimbabwean citizens are equally entitled to their rights, privileges and benefits of citizenship and are equally subject to the duties and obligations of citizenship
3.2 It is the duty of every Zimbabwean citizen —
a) to observe this constitution and to respect its ideals and institutions
b) to respect the national flag and the nation al anthem; and
c) to the best of their ability, to defend in time of need
3. All Zimbabwean citizens are entitled to the protection of the state wherever they may be
4. Zimbabwe citizenship may be acquired by birth or registration

3.2 Citizenship by birth
New Draft
3.2 C (b) sections (1) and (3) apply also to people born before the effective date in the circumstances described in those subsections.

3.3 Citizenship by descent
New Draft
(1) Anyone born outside Zimbabwe is a Zimbabwean citizen by descent if he or she was born:
(a) either of his parents or grandparents was a citizen of Zimbabwe by birth or by descent or;
(b) either his or her parents was a Zimbabwean citizen by registration: and the birth is registered in Zimbabwe in accordance with the law relating to the registration of births.
Old Draft: None

3.4 Citizens by registration
Refined draft
(1) Anyone who has been married to a Zimbabwean citizen for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, may on application to be registered as a Zimbabwean citizen.
(2) Anyone who has been continuously and lawfully resident in Zimbabwe for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, may, on application, to be registered as a Zimbabwean citizen.
Old Draft
(1) Anyone who has been married to a Zimbabwean citizen for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament on application to be registered as a Zimbabwean citizen.
(2) Anyone who has been continuously and lawfully resident in Zimbabwe for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament on application, to be registered as a Zimbabwean citizen.

3.5 Revocation of citizenship
Refined Draft
(1) If a person acquired Zimbabwean citizenship by registration, the citizenship may be revoked if —
(a) the person acquired the citizenship by fraud, false representation or concealment of a material fact;
(b) during a war in which Zimbabwe was engaged, the person unlawfully traded or communicated with an enemy or was engaged in or associated with any business that was knowingly carried on so as to assist an enemy in that war; or
(c) within five years after becoming a Zimbabwean citizen, the person is convicted of a criminal offence specified in an Act of Parliament.
(2) If a person acquired Zimbabwean citizenship by birth, having been presumed to be such a citizen as provided in section 2.2(3), the citizenship may be revoked if––
(a) the citizenship was acquired by fraud, false representation or concealment of a material fact by any person; or
(b) the person’s nationality or parentage becomes known, and reveals that the person was a citizen of another country.
Old Draft
(1) If a person acquired Zimbabwean citizenship by registration, the citizenship may be revoked if —
(a) the person acquired the citizenship by fraud, false representation or concealment of a material fact;
(b) during a war in which Zimbabwe was engaged, the person unlawfully traded or communicated with an enemy or was engaged in or associated with any business that was knowingly carried on so as to assist an enemy in that war; or
(c) within five years after becoming a Zimbabwean citizen, the person is convicted of a criminal offence specified in an Act of Parliament.
(2) If a person acquired Zimbabwean citizenship by birth, having been presumed to be such a citizen as provided in section 2.2(3), the citizenship may be revoked if —
(a) the citizenship was acquired by fraud, false representation or concealment of a material fact by any person; or
(b) the person’s nationality or parentage becomes known, and reveals that the person was a citizen of another country.

3.8 Powers of Parliament in regard to citizenship
Refined Draft
(1) An Act of Parliament must provide for the establishment of a Citizenship and Immigration Board consisting of a chairperson and at least two other members, appointed by the President, to be responsible for —
(a) granting and revoking citizenship by registration;
(b) permitting persons, other than citizens, to reside and work in Zimbabwe, and fixing the terms and conditions under which they may so reside and work;
(c) exercising any other functions that may be conferred or imposed on the Board by or under an Act of Parliament.
(2) An Act of Parliament may make provision, consistent with this Chapter, for —
(a) procedures by which Zimbabwean citizenship may be acquired;
(b) the voluntary renunciation of Zimbabwean citizenship;
(c) procedures for the revocation of Zimbabwean citizenship; and
(d) generally giving effect to this Chapter.
Old Draft
(1) An Act of Parliament must provide for the establishment of a Citizenship and Immigration Board consisting of a chairperson and at least two other members, appointed by the President, to be responsible for—
(a) granting and revoking citizenship by registration;
(b) permitting persons, other than citizens, to reside and work in Zimbabwe, and fixing the terms and conditions under which they may so reside and work;
(c) exercising any other functions that may be conferred or imposed on the Board by or under an Act of Parliament.
(2) An Act of Parliament may make provision, consistent with this Chapter, for—
(a) procedures by which Zimbabwean citizenship may be acquired;
(b) the voluntary renunciation of Zimbabwean citizenship;
(c) procedures for the revocation of Zimbabwean citizenship; and
(d) generally giving effect to this Chapter.

4.17 Political rights
Refined Draft
(1) Every citizen of Zimbabwe has the right—
(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and
(b) to make political choices freely.
(2) Except as provided in section Chapter 9, every citizen of Zimbabwe has the right—
(a) to form, to join, to participate in the activities of a political party or of their choice;
(b) to campaign for a political party or cause;
(c) to participate in peaceful political activity; and
(d) to participate, individually or collectively in gatherings or groups or in whatever manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.
(3) Subject to this Constitution, every citizen of Zimbabwe who is over eighteen years of age has the right –
(a) to vote in all elections and referendums to which this Constitution applies, and to do so in secret; and
(b) to stand for election for public office and, if elected, to hold such office.
(4) For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties, but such funding may be withheld from political parties which do not uphold the principles and values of this Constitution or whose internal structures and procedures are not reasonably democratic.
Old Draft
4.17 Political rights
(1) Every citizen of Zimbabwe has the right —
(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and
(b) to make political choices freely.
(2) Except as provided in section Chapter 9, every citizen of Zimbabwe has the right —
a) to form, join, to participate in the activities of, and to recruit members for, a political party or organisation of their choice
(b) to campaign for a political party or cause;
(c)to participate in peaceful activity intended to influence the composition and policies of Government ; and
(d) to participate, individually in gatherings or groups or in whatever manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.
(3) Every citizen of Zimbabwe who is over eighteen years of age has the right —
(a) to vote in all elections and referendums to which this Constitution applies, and to do so in secret; and
(b) to stand for election for public office and, if elected, to hold such office.
(4) For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties, but such funding may be withheld from political parties which do not uphold the principles and values of this Constitution or whose internal structures and procedures are not reasonably democratic.

4.19 Property rights
Refined Draft
(1) Vest all agricultural land acquired during the land reform programme in the state and place it beyond contestation in respect of acquisition but not in respect of compensation for the improvements thereof.
(2) Reaffirm the rights of those whose land was acquired and is vested in the state and to compensation for improvements thereto.
(3) Protect fully the rights of indigenous Zimbabweans from compulsory acquisition of their agricultural land except where the requirements of the property clause are satisfied, that is to say, the acquisition must be reasonably necessary in the interests of defence, public safety, public order, public morality, public health or town and country planning.
(4) Provide for full compensation for both the land and the improvements for indigenous Zimbabweans whose land was acquired during the land reform programme and the land has since vested in the state.
(5) Reaffirm the rights of BIPA land owners to full, prompt and adequate compensation in terms of the property clause and the applicable BIPAS.
(6) Provide for security of tenure and protection against arbitrary evictions and deprivation for those owning or occupying agricultural land.
(7) Provide for the right of the State to alienate any agricultural land vested in it so as to allow leaseholds to be converted to freehold as and when the condition for such conversion are fulfilled.
(8) Provide for the factors to be taken into account when assessing compensation for acquired agricultural land which factors should include the value of the land, the purpose of the acquisition, the current use of the land, the history of the land, its use and acquisition and the investment made and improvement effected on that land.
(9) Provide for a land commission with the following functions, amongst others:
(i) Periodic land audits
(ii) Enforcing the principle of one person one farm
(iii) Resolving land disputes.
Old Draft: No similar provision

4.39 Limitations during emergency
Refined Draft
In addition to the limitations permitted by section 4.38, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by the Second Schedule.
(1) Any legislation engaged in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that:
(i) the derogation is strictly required by the emergency; and
(ii) the legislation.
Is consistent with Zimbabwe’s obligations under international law applicable to states of emergency
Conforms with subsection (2); and
is published in the Government Gazette as soon as reasonably possible after being enacted.
(2) No Act of Parliament that authorises a declaration of a States of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise;
(i) indemnifying the state, its organs or agencies, or person, in respect of any unlawful act.
(ii) any derogation from this section; and
(iii) any derogation from a section mentioned in the list of non-derogable rights namely:-
Freedom from torture, cruel, inhuman and degrading treatment
l Right to human dignity
l Right to life
l Right to equality with respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language.
l Freedom and security of the person
l Freedom from slavery and servitude
l Rights of arrested, detained and accused persons.
Old Draft
4.39 Limitations during emergency
In addition to the limitations permitted by section 4.38, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by the Second Schedule.

Chapter 5: Systems of Government
Refined Draft
5.1 Devolution of functions, powers and responsibilities
Zimbabwe is a unitary State, that is guided by the principles of devolution of governmental functions, powers and responsibilities to people at all appropriate levels.
Old Draft
Chapter 5: Devolutions and spheres of government
5.1 Devolution of functions and responsibilities
Zimbabwe is a unitary state but government functions and responsibilities must be devolved to the people at all appropriate levels

5.3 Objects of devolution
Refined Draft
The objects of the devolution of governmental functions and responsibilities are —
(a) to promote democratic, effective, transparent, accountable and coherent government of Zimbabwe as a whole;
(b) to preserve and foster the peace, national unity and indivisibility of Zimbabwe;
(c) to give powers of local governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them;
(d) to recognise the right of communities to manage their own affairs and to further their development;
(e) to ensure the equitable sharing of local and national resources throughout Zimbabwe;
(f) to facilitate the decentralisation of State institutions, their functions and services.
Old Draft
5.3 Objects of Devolution
The objects of the devolution of governmental functions and responsibilities are
a) To give powers of self governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them;
b) To recognise the right of communities to manage their own affairs and to further their development
c) To promote democratic, effective, transparent, accountable and coherent government of Zimbabwe as a whole;
d) To preserve and foster the peace, national unity and indivisibility of Zimbabwe
e) To ensure the equitable sharing of local and national resources throughout Zimbabwe
f) to facilitate the decentralisation of State institutions, their functions and services from the capital of Zimbabwe

6.3 Duty of President to uphold Constitution
Refined Draft
The President must —
(a) uphold, defend, obey and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all the other laws are faithfully observed;
(b) promote unity and peace in the nation for the benefit and well-being of all the people of Zimbabwe.
(c) to ensure protection of human rights and fundamental freedoms and rule of law.
(d) respect the diversity of the people and communities.
Old Draft
The President must —
(a) uphold, defend and respect this Constitution as the supreme law of the nation and must ensure that this Constitution and all the other laws are faithfully observed;
(b) promote unity and peace in the nation for the benefit and well-being of all the people of Zimbabwe.

6.4 Qualifications for election as President
Refined Draft
(1) A person qualifies for election as President if he or she —
(a) is a citizen of Zimbabwe by birth or descent;
(b) has attained the age of 40;
(b) is qualified for election to Parliament;
(2) A person is disqualified for election as President if he or she has already held office as President for one or more periods, whether continuous or not, amounting to ten years under this constitution.
Old Draft
(1) A person qualifies for election as President if he or she —
(a) is a citizen of Zimbabwe
b)is qualified for election to the National Assembly
(2) A person is disqualified for election as President if he or she has already held office as President for one or more periods, whether continuous or not, amounting to ten years

6.5 Election of President
Refined Draft
(1) The election of a President must take place not more than ninety days—
(a) before the expiry of a President’s term of office; or
(b) after a President dies, resigns or is any way incapacitated and removed from office.
(2) The President is elected directly by all citizens in a general election throughout Zimbabwe and the procedure for the election is as prescribed in the Electoral Law.
Old Draft
(1) The election of a President must take place not more than ninety days—
(a) before the expiry of a President’s term of office; or
(b) after a President dies, resigns or removed from office
The President is elected by registered voters throughout Zimbabwe and the procedure for the election is as prescribed in the Electoral Law.

6.6 Challenge to election of President
Refined Draft
(1) Any petition or application challenging the validity of a presidential election must be lodged with the Constitutional Court within seven days after the date of the declaration of the results of the election.
(2) The Constitutional Court must hear and determine a petition or application challenging the validity of a presidential election within fourteen days after the petition or application was lodged, and the court’s decision is final.
(3) In determining a petition or application the Constitutional Court may do any one of the following:
(a) declare a winner;
(b) invalidate an election in which case a fresh one must be held within sixty days after the determination;
(c) issue any other order it deems just and appropriate.
(4) Specifically to indicate that only the aggrieved candidate or his or her authorised agent have locus standi.
6.6 Challenge to election of President
Old Draft
(1) any petition or application challenging the validity of a presidential election must be lodged with the Constitutional Court within seven days after the date of the declaration of the results of the election.
(2) the Constitutional Court must hear and determine a petition or application challenging the validity of a presidential election within fourteen days after the petition or application was lodged, and the court’s decision is final.
3) if the Constitutional Court determines that a presidential election must be held within sixty days after the determination

6.7 Assumption of office by President
Refined Draft
Before assuming office, a person elected as President must take the Presidential oath/affirmation in the form set out in the Second Schedule on—
(a) ninth day after the date of the of the declaration of the result of the Presidential election, if no petition has been filed under section 6.6; or
(b) forty-eight hours after the date on which the Constitutional Court renders a decision declaring the election to be valid, if any petition has been filed under section 6.6.
(c) The incumbent President remains in situ until resolution of the electoral dispute.
Old Draft
Before assuming office, a person elected as President must take the Presidential oath in the form set out in the first Tuesday following
(a) the fourteenth day after the date of the of the declaration of the result of the Presidential election, if no petition has been filed under section 6.6; or the seventh day after the date on which the Constitutional Court renders a decision declaring the election to be valid, if any petition has been filed under Section 6.6.

6.8 Term of office of President
Refined Draft
(a) The term of office of the President is a period of five years
(b) the maximum is two five-year terms
(c) must have served under this constitution
6.8 (c) A person who has served as President for at least three years is assumed to have served a full five-year term.
6.8(d) The President shall continue in office until the person elected as President at the next general election of President enters office.
The term of office of the President is a period of five years, and no one may hold office as President after holding that office for one or more periods, whether continuous or not, amounting to ten years, under this constitution.
Old Draft
6.8 The term of office of the President is a period of five years, and no one may hold office as President after holding that office for one or more periods, whether continuous or not, amounting to ten years

6.10 Removal of President from office
Refined Draft
(1) The Senate sitting as a court at the request of at least two thirds of the Members of the House of Assembly, may-
(a) impeach and remove the President from office for:
(i) serious misconduct;
(ii) failure to obey, uphold and defend this Constitution; or
(iii) willful violation of this Constitution; or
(b) remove the President from office on the ground that he or she is unable to exercise the functions of the office because of physical or mental incapacity.
(2) A resolution to remove the President from office must be passed by at least two thirds of all the members of the Senate.
(3) The Chief Justice presides over any proceedings in the Senate for the impeachment or removal of the President from office.
(4) After the House of Assembly has requested the impeachment or removal of the President in terms of subsection (1), the President has no power to dissolve Parliament under this Constitution until the proceedings are completed.
Old Draft
The National Assembly with the approval of two thirds of its membership, may remove the President from office only on the grounds of-
a) a serious violation of the constitution or the law
b) serious misconduct or:
c) inability to perform the functions of the office

6.11 Presidential immunity
Refined Draft
(1) While in office, the President is not liable to civil or criminal proceedings in any court for things done or omitted to be done in his or her personal capacity.
(2) After a person has left office as President, civil or criminal proceedings may be instituted against that person for things done or omitted to be done;
(a) before he or she became President
(b) in his or her personal capacity while he or she was President.
(3) The running of prescription in relation to any debt or liability of the President arising before or during his or her term of office is suspended while he or she remains in office.
Old Draft
1) Except with the leave of the Constitutional Court, no civil or criminal proceedings may be instituted against the President in his or her personal capacity for things done or omitted to be done before he or she becomes President or while he or she is President.
2) The salary and allowances of the President and any acting President must be charged upon and paid out of the Consolidated Revenue Fund.
 




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