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A YEAR since the adoption of the new Constitution in March last year, non-constitutionality — failure to adhere to the Supreme law — is rearing its ugly head in several aspects, confirming fears that government is not committed to ensure that constitutionalism prevails, the Financial Gazette has noted. Before the ink was even dry on the new Constitution, one of the first violations of the supreme law was in September last year when President Robert Mugabe appointed only four women ministers compared to 25 men. Yet the new charter expressly provides for gender parity in such appointments.

Section 17 (b) of the new Constitution, passed following a referendum in March 2013, states that: “the State must take all measures, including legislative measures, needed to ensure that — both genders are equally represented in all institutions and agencies of government at every level.” Yet, Cabinet appointments went against this grain. Outcries from women’s organisations and activists saw no redress of the situation.

Section 17 b (ii), which seeks to ensure, “women constitute at least half the membership of all commissions and other elective and appointed governmental bodies established by or under this Constitution or any Act of Parliament”, has also been violated as there is no gender parity in their representation. The non-implementation of the right not to be turned away from hospital for emergency care for lack of funds is also another example of being unconstitutional, pointed out Member of Parliament for Harare West, Jessie Majome, a lawyer who was also part of the select committee that spearheaded the drafting of the new Constitution.

Of late, the media has been awash with reports of patients who have been withheld in hospital and prevented from going home because they could not afford to pay the medical bills. Many others are failing to access health services because of inability to pay for them. Yet the Constitution protects people’s right to treatment. Fourteen months since the Constitution provided for them, provincial councils are nowhere in sight. These were drafted into the Constitution as a way of decentralising power to the provinces — some form of devolution.

Instead, there was the appointment of de facto provincial governors. This situation has led to disgruntlement particularly in those provinces which have felt marginalised like Matabeleland and greater Bulawayo, among a few others, who had hoped that devolution would afford them the opportunity to decide their own affairs in particular allocate their own resources.

Bulawayo, in particular, has for years bemoaned the de-industrialisation of the city, which used to be the country’s industrial hub in the early 90s and before, which residents attribute to unfortunate policies by the ZANU-PF government. The de-industrialisation of Bulawayo has seen, since the turn of the millennium, over 100 companies close and more than 20 000 people lose their jobs.

In the outreach exercise that preceded the adoption of the new charter, many in Bulawayo and Matabeleland provinces had expressed their preference for devolution, in the hope that this would begin to address their needs and concerns and go some way in affording them autonomy. But this has not been. And the longer this constitutional provision goes unaddressed the more doubtful it becomes.

“The continuing bias of the State broadcaster is also an example of non-implementation of the Constitution,” said Majome. Currently, Majome has taken Zimbabwe Broadcasting Corporation (ZBC) to the Constitutional Court (Concourt) challenging its demand for television and radio licence fees despite alleged biased programming. Majome argues that the law compelling people to pay television and radio licences infringed on their rights given that ZBC is partisan.

“ZBC is openly biased towards ZANU-PF party in its general reporting, news casting and general programming to the detriment of other bona fide political parties, particularly the MDC-T of which I am a senior member,” Majome said.

“Quite clearly, ZBC does not provide the same public service for any other political party. In fact, ZBC treats other political parties as if they do not exist at all yet ZANU-PF is only just another party which makes up the Global Political Agreement and even polled fewer votes than MDC-T in 2008 general elections.” She said by doing so, ZBC “impertinently disdained” the political views of at least half if not the majority of people in the country through its “heavily biased programming”.

Majome has since urged the Concourt to declare as unconstitutional sections 38B2, 38C and 38D1-4 of the Broadcasting Services Act and to declare that non-compliance with the said sections does not constitute a criminal offence. She also urged the court to exercise its powers and permanently stay her prosecution over the non-payment of a television licence. The non-allocation of the five percent to local government, the absence of independent commissions, the violation of the right of citizens to a passport and other documents, the disruptionrevention of public meetings by police, the non-enforcement of the raising of the minimum age of marriage for girls from 16 to 18, are other examples of the non-implementation of the Constitution, among other examples. Majome said.

“The whole attitude of not implementing the Constitution has become a habit and therefore, symptomatic to lack of constitutionalism,” Majome told the Financial Gazette this week. Another lawyer, Chris Mhike, concurred that there were several instances pointing to non-implementation of the Constitution.

“Instances of government failure in respect of the Constitution include shortcomings in the promotion of public awareness of the Constitution as required by Section 7 of the Constitution and failure to create employment for all Zimbabweans, especially women and youths — an obligation outlined under Section 14 of the Constitution,” Mhike said. He also said, while Section 2 provides for the supremacy of the Constitution, and Section 3 (2) (e) of the charter establishes “observance of the principle of separation of power,” President Mugabe had placed in the Government Gazette of January 3, 2014, three sets of regulations under the Presidential Powers (Temporary Measures) Act. These were the Presidential Powers (Temporary Measures) (Amendment of Money Laundering and Proceeds of Crime Act [Chapter 9:24]) Regulations, 2014 [SI 22014] the Presidential Powers (Temporary Measures) (Amendment of Criminal Law (Codification and Reform Act [Chapter 9:23] [SI 32014] and the Presidential Powers (Temporary Measures) (Trafficking in Persons Act) Regulations, 2014 [SI 42014]. “Under the stated provisions of the new Constitution of Zimbabwe, the constitutionality of the Presidential Powers (Temporary Measures) Act cannot be sustained. Resultantly, the publication of the listed Statutory Instruments of 3 January 2014 was in violation of the provisions of the Constitution,” Mhike said, adding, “These failures and acts, are all unconstitutional.”

The State also failed to readily implement Chapter 3 provisions on Citizenship, Mhike said, with citizens like businessman Mutumwa Mawere having to approach the Concourt for the enforcement of their rights. “Ordinarily, litigation should be unnecessary for the enforcement of rights,” he said. However, Mhike pointed out, there are some instances where the government has tried to govern in accordance with the provisions of the new Constitution.

“For instance, government has succeeded in creating the office of the National Prosecuting Authority in terms of Sections 258 and 259 of the Constitution, but failed in appointing an Attorney General in accordance with the provisions of Section 114. Government has succeeded in domesticating some international instruments in terms of Section 34 of the Constitution, as achieved through Statutory Instrument 76 of 2014 – Suppression of Foreign and International Terrorism (Application of UNSCR1267 of 1999, UNSCR 1373 of 2001 and Successor UNSCRs) Regulations, 2014, published in the Government of 9 May 2014,” he said.

Source : Financial Gazette

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