Zimbabwe: MDCs Take Aim at Presidential Powers

With Zanu-PF pressing hard for elections this year with or without a new constitution, the Movement for Democratic Change (MDC) formations are rolling out strategies that run parallel to the constitution-making process as part of desperate attempts to checkmate the revolutionary party, The Financial Gazette can exclusively reveal.

Among the cocktail of strategies being pursued separately by the two parties ahead of the elections are amendments to the Presidential Powers (Temporary Measures) Act to immobilise President Robert Mugabe and his ZANU-PF party from interfering with Parliamentary processes through decrees.

The MDC-T, which has an upper hand in the Lower Chamber, has, in the past, cited the Act as intermeddling with the doctrine of the separation of powers, one of the essential elements of the rule of law. The MDC, led by Welshman Ncube, agrees.

The MDC-T first made noise about it four years ago when the incumbent, through a presidential decree, amended the Electoral Act two months before the March 2008 elections in which ZANU-PF lost its parliamentary majority to the combined MDC formations for the first time since independence.

The decree effectively reversed an agreement that had been brokered between ZANU-PF and the MDC factions by former South African president, Thabo Mbeki, doing away with provisions requiring illiterate or physically incapacitated voters to cast their vote in the presence of a police officer.

MDC-T secretary-general, Te-ndai Biti, pointed out at the time that the decree was unconstitutional, insisting there was only one lawmaking body in Zimbabwe – the legislative assembly.

The latest development could be an indication of the MDC factions’ waning confidence in the stop-go constitution-making process as well as their desire to diversify the struggle for political reform to include Parliament where they enjoy a numerical advantage.

With ZANU-PF pushing for elections this year, the MDC factions could be budgeting for the worst. Currently, ZANU-PF enjoys the power of incumbency and has been frustrating the MDCs’ efforts to push for sweeping reforms that might level the uneven political playing field.

Although the country’s Consti-tution stipulates that Parliament is the only law-making body in the country, the Presidential Powers (Temporary Measures) Act is one of the few statutes that give extensive legislative powers to the President.

The Act empowers the ZANU-PF leader to make regulations on virtually any subject, if he thinks urgent action is needed in the interest of defense, public security, public health and the economic interests of Zimbabwe or the general public interest.

The only limits on his power are, firstly, that he must revoke his regulations if Parliament requires him to do so and, secondly, that the regulations expire after six months, with an option of renewal.

Douglas Mwonzora, the MDC-T legislator for Nyanga North and chairperson of the Parliamentary Committee on Justice, Legal, Constitutional and Parliamentary Affairs, confirmed that the committee would meet on Monday to deal with the issue of presidential powers.

“We will meet on Monday as a committee and one of the issues is to review the Act, to see whether the Act is in line with democratic practices”, said Mwonzora.

Mwonzora said the review of the Act has been on the cards since 2009 when the committee developed its work plan endorsed by members from across party lines, adding that although they are currently reviewing the presidential powers, there are also other laws on their review agenda such as the Public Order and Security Act and the Electoral Act.

“For as long as the Act is still law, it remains under our jurisdiction. We did not decide now, it was decided when we formulated our work plan,” he said.

The committee has 17 members – ZANU-PF and the MDC-T have eight each, with the MDC having only one member Thandekho Mkhandla (Gwanda North), giving MDC formations a slight edge.

Among the ZANU-PF members on this committee is Munyaradzi Paul Mangwana, who co-chairs the Constitution Parliamentary Select Committee along with Mwonzora and Edward Mkhosi from the smaller MDC faction.

While Mangwana and Justice and Legal Affairs Minister, Patrick Chinamasa, could not be reached for comment yesterday, indications are that ZANU-PF will oppose the amendments.

Already, some of the party’s lawmakers, who are part of the committee, are girding their loins to shoot down the planned changes.

While ZANU-PF’s efforts may falter at the committee level and in the Lower Chamber where the MDC formations are in the majority, the amendments are unlikely to sail through Senate where ZANU-PF is in control.

Currently, the MDC formations have 103 seats in the House of Assembly split as follow: MDC-T (96) and MDC (7). ZANU-PF has 91 seats in this assembly.

In the Upper Chamber, ZANU-PF has 22 seats. But the party also enjoys support from the chiefs numbering 12. These numbers, combined, dwarf the unified MDC-T and MDC’s 28.

The numbers in both chambers have significantly declined since the harmonised elections in 2008 largely through deaths of sitting MPs or Senators and dismissals.

A ZANU-PF member of the committee, Simbaneuta Muda-rikwa, admitted that although he and some of his party’s members were not in support of the move, their stance was likely to be defeated due to the combined MDC majority in the House of Assembly and committees.

He described the move as an extension of machinations by the MDC-T to gain power through the back door after the party failed to lobby for security sector reforms.

“As a committee, we have no mandate to deal with the matter, but the MDC wants to create a record that they are opposed to the President. They lost on security sector reform and they are trying to create a new issue,” said Mudarikwa”, he said.

Edwin Mushoriwa, the vice president of the Ncube-led MDC, said the law to do with presidential powers has no place in a democratic society as it abrogates the legislative role of Parliament.

“Any Act of Parliament or any subsidiary legislation can be reviewed by Parliament. Parlia-ment has the right to review its Acts of Parliament. It can consider amendments to the Constitution. Parliament, in its wisdom to review this Act, is within its mandate,” said Mushoriwa.

“As a party, our position is that the Act does not fit in a democratic society. We believe that the doctrine of separation of powers carries the day and law-making belongs to Parliament.”

The invocation of the Presidential Powers has been a major bone of contention in Zimbabwe.

Critics argue that the statute was being randomly used to usurp the powers of not only Parlia-ment, but also of other constitutional bodies and individuals.

For example, the Act has previously been invoked to deal with the affairs of SMM Holdings linked to Mutumwa Mawere. Mawere is currently fighting tooth and nail to retain his assets.

It was also invoked to amend the Criminal Procedure and Evidence Act heralding the arrest of James Makamba on charges of externalising foreign currency.

The Act is, however, not the only statute giving extensive legislative powers to the President: some old statutes, particularly those inherited from the Federation of Rhodesia and Nyasaland, are almost as broad.

The Control of Goods Act, for example, empowers the President to make regulations controlling the import, export, distribution, rationing, disposal, purchase and sale of goods, as well as the prices of goods and the charges for services relating to goods.

So wide is the Act, that the President could, if he were so minded, use it to make regulations controlling the entire economy.

Other statutes giving the President similarly broad powers are the Exchange Control Act, the Animal Health Act and the Plant Pests and Diseases Act.

Legal watchdog, Veritas, said the ongoing constitutional-making exercise is another avenue to rectify the anomaly.

“All these statutes should be repealed or amended to reduce the executive’s legislative powers, and the new constitution should try so far as possible to prevent Parliament from delegating its legislative powers to members of the executive”, said Veritas.

“Any such delegation should extend no further than allowing ministers to fill in details in Acts of Parliament, for example specifying forms to be used in applications, etc. In addition, the new constitution should require the President and ministers to have wide consultation with interested parties before enacting regulations; at the very least this may improve the efficacy of their regulations.”