Synoptical Analysis of the Legislature and Executive Functions Under the Zimbabwe Constitution 2013

Synoptical Analysis of the Legislature and Executive Functions Under the Zimbabwe Constitution 2013 Abstract An overview analysis of the relevant provisions of the Zimbabwe Constitution Amendment Act 20 of 2013 (Zimbabwe Constitution 2013) that, inter alia, deals with the functions of the legislature and the executive is provided in this article. Put differently, this article investigates the adequacy of the aforesaid provisions in relation to their practical enforcement and the promotion of constitutional democracy in Zimbabwe. Consequently, a synoptical discussion of the selected flaws of the provisions dealing with the functions of the legislature and the executive under the Zimbabwe Constitution 2013 will be undertaken. Furthermore, a comparative analysis of these provisions and those that were provided under the Lancaster House Constitution of Zimbabwe Amendment Act 19 of 2009 (Lancaster House Constitution 1979) will be provided. This is done to examine whether the gaps and shortcomings that were associated with the relevant provisions of the Lancaster House Constitution 1979 are now corrected under the Zimbabwe Constitution 2013. Thereafter, possible recommendations and concluding remarks will be stated. 1. INTRODUCTION An overview analysis of the relevant provisions of the Zimbabwe Constitution Amendment Act 20 of 20131 that, inter alia, deals with the functions of the legislature and the executive is provided in this article. Put differently, this article investigates the adequacy of the aforesaid provisions in relation to their practical enforcement and the promotion of constitutional democracy in Zimbabwe.2 Consequently, a synoptical discussion of the selected flaws of the provisions dealing with the functions of the legislature3 and the executive4 under the Zimbabwe Constitution 2013 will be undertaken.5 In other words, the adequacy of the aforesaid provisions in relation to their consistent implementation as well as the application of the doctrine of separation of powers and the promotion of democracy in Zimbabwe will be discussed.6 Furthermore, a comparative analysis of these provisions and those that were provided under the Lancaster House Constitution of Zimbabwe7 will be provided. This is done to examine whether the gaps and shortcomings that were associated with the relevant provisions of the Lancaster House Constitution 19798 are now resolved under the Zimbabwe Constitution 2013. Lastly, possible recommendations and concluding remarks will be provided. 2. OVERVIEW OF THE FUNCTIONS OF THE LEGISLATURE AND THE EXECUTIVE (A) Functions of the Legislature and the Executive Under the Lancaster House Constitution 1979 (i) Functions of the Executive Various broad presidential powers were entrenched in the Lancaster House Constitution 1979.9 For instance, the president was the head of state and head of government.10 The president was also the commander in chief of the defence forces of Zimbabwe.11 This clearly shows that the president had exclusive executive and administrative control over the state and government. The president had special precedence over all the persons of Zimbabwe.12 Having said this, it is now important to note that the qualifications of the president are enumerated below. Persons were only qualified or eligible for election as president if they: (a) were citizens of Zimbabwe by birth or by descent; (b) have attained the age of 40 years; and (c) were ordinarily resident in Zimbabwe.13 This clearly shows that any Zimbabwean citizen who was 40 years old was eligible to contest for election as president in Zimbabwe. In other words, no educational or other professional qualifications were required before a person can qualify for election as president in Zimbabwe under the Lancaster House Constitution 1979. Moreover, apart from stating 40 years as the entry age for persons to contest for election as president, no specific age was indicated as the exit age for such persons to be ineligible to contest for election as president in Zimbabwe under the Lancaster House Constitution 1979.14 The president was directly elected by the electorate on the day or days fixed by a proclamation in terms of the Lancaster House Constitution 197915 for parliamentary and local elections.16 Additionally, the president could be jointly elected by the members of the senate and the national assembly in accordance with the relevant electoral laws within 90 days after the office of president became vacant by reason of his/her death, resignation, or removal from office in terms of the Lancaster House Constitution 1979.17 This shows that the members of the senate and national assembly could only elect a new president were the former president has died, resigned, or constitutionally removed from his/her office. The president-elect was only granted up to 48 hours to take the oath of office before the Chief Justice or other judge of the Supreme Court or the High Court.18 The tenure of office for the president was a period of five years concurrent with the life of parliament19 or a lesser period where the president had earlier dissolved the parliament in terms of the Lancaster House Constitution 1979.20 The presidential term of office was also shorter than five years where the president was elected by the members of the senate and the national assembly.21 Likewise, the tenure of office for the president could be longer than five years where the life of the parliament is extended in terms of the Lancaster House Constitution 1979.22 This suggests that the tenure of office for the president could only terminate on the expiration of the aforesaid periods. Put differently, the president was allowed to continue in office until the new president was elected and/or came into office.23 Nonetheless, there was no fixed term of office for the president and vice presidents. This was one of the main flaws of the Lancaster House Constitution 1979 because it enabled any person who had served as president to continue to run or contest in elections irrespective of his or her performance record in office as an executive president. The president was allowed to resign from his or her office by tendering a resignation letter in writing to the speaker of the national assembly.24 Moreover, the president could also be removed from his or her office where a joint report of the committee of the senate and the national assembly and more than one third of such members had requested and recommended the removal of the president due to the fact that: (a) he or she had acted in wilful violation of the Lancaster House Constitution 1979 or (b) he or she was incapable of performing the functions of his or her office because of his or her physical or mental incapacity and/or gross misconduct.25 However, the exact meaning of the terms ‘mental incapacity’, ‘physical incapacity’, and ‘gross misconduct’ was not expressly provided for in the Lancaster House Constitution 1979.26 Furthermore, the aforesaid removal of the president could only be effected through a joint resolution of not less than two thirds of the majority and affirmative votes of the members of the senate and national assembly. Accordingly, it was very difficult to remove any president from the ZANU PF because its members dominated the parliament for several years in Zimbabwe. The president had immunity for personal liability in respect of any civil or criminal offences committed while he or she was still in office.27 Nonetheless, the president could, after his or her tenure, be charged for any civil or criminal activities that he did or omitted to do before he or she became president.28 This also suggests that the law could be applied retrospectively where the president committed some offences before he or she entered the office of the president of Zimbabwe. Furthermore, after his or her tenure as president, the president was personally liable for any civil or criminal activities that he did or omitted to do while he or she was in office as the president of Zimbabwe.29 In light of this, it appears that prescription laws and other related laws were not considered in relation to the debts and other liabilities of the former president.30 Be that as it may, the author submits that these relatively broad immunity provisions could have enabled any notorious incumbent president to refuse to retire in order to avoid and/or evade his or her civil and criminal charges.31 Moreover, the Lancaster House Constitution 1979 provided for the functions of the vice presidents and an acting president.32 An acting president was allowed to perform the functions of the president when the office of the president was vacant or the incumbent president was unable to perform his or her functions due to illness and other related causes.33 However, approval from the majority of the cabinet members was required before the acting president could exercise certain presidential powers such as the power to: (a) declare war or to make peace; or (b) enter into any international convention, treaty, or agreement; or (c) dissolve or prorogue parliament34; or (d) appoint or revoke the appointment of a vice president, minister, or deputy minister; or (e) assign or reassign functions to a vice president, minister, or deputy minister, including the administration of any Act of parliament or of any ministry or department, or to cancel any such assignment of functions.35 This clearly indicates that an acting president did not have exclusive executive powers under the Lancaster House Constitution 1979 since the exercise of such powers was subject to the cabinet.36 It is also not clear whether the acting president was given the same immunity as the president, for personal liability in respect of any civil or criminal proceedings committed while he or she was in office.37 Nevertheless, both the president and acting president were entitled to a salary, allowances, pension, and other benefits that could be prescribed under an Act of parliament.38 In light of this, the incumbent presidents and former presidents were prohibited from holding any other public office directly or indirectly while they are receiving a presidential pension from the state.39 As earlier stated, the president had various executive functions which he or she could directly or indirectly exercise through the cabinet.40 For instance, the president was obliged to uphold the Constitution and other laws of Zimbabwe.41 The president was empowered through the Constitution, an Act of parliament and/or the parliament to act as the head of state with powers to: (a) appoint, accredit, receive, and recognize diplomatic agents and consular officers; (b) enter into international conventions, treaties, and agreements; (c) proclaim and to terminate martial law; (d) declare war and to make peace; and (e) confer honours and precedence.42 The president was also obliged to exercise his or her functions on the advice of the cabinet or any designated person and/or authority in terms of the Constitution and other relevant laws.43 Nevertheless, the president was not obliged to act on such advice with regard to: (a) the dissolution or prorogation of parliament; or (b) the appointment or removal of a vice president, any minister, or deputy minister and/or provincial governor.44 This implies that the president had exclusive or unilateral powers and discretion to appoint vice presidents, ministers, deputy ministers, and provincial governors.45 Put differently, cabinet ministers, vice presidents, deputy ministers, and provincial governors served at the president’s pleasure.46 Accordingly, some of the challenges associated with this approach were, inter alia, the following: (a) undeserving cabinet ministers, governors, or vice presidents could be appointed by the president not on the basis of merit but on the basis of political and/or other reasons and (b) such cabinet ministers, governors, or vice presidents could end up being puppets or unable to robustly and objectively challenge some of the decisions of the president due to fear of reprisals or being sacked from their jobs by that president.47 In this regard, the author concurs with Muna Ndulo48 who correctly argues that the Constitutions of most African countries, including Zimbabwe should expressly provide some checks and balances on the president’s powers, such as a parliamentary approval system before any ministers, governors, or vice presidents are appointed to combat biased, unconstitutional, and unmeritorious appointments. Furthermore, only the president had the prerogative to grant a pardon, respite, suspended sentence or less severe punishment to any person convicted of a criminal offence against any law indefinitely or for a specified period.49 Interestingly, this presidential prerogative to grant mercy to convicted offenders could also be exercised in respect of offences committed in countries other than Zimbabwe.50 Be that as it may, the author submits that these powers should have been exercised by the president after consultation or approval from the parliament to curb selective and/or biased application of the stated mercy provisions by the president in Zimbabwe. On the other hand, the president was only empowered to declare a public emergency after the approval from the parliament.51 Accordingly, a president could declare a public emergency when there was a situation or potential situation that could lead to a state of public emergency.52 Nonetheless, it appears that the president was constitutionally allowed to take some actions or decisions on his or her own discretion or deliberate judgment, while the parliament and the courts were prohibited from inquiring into any such actions and/or decisions.53 This flawed provision could have enabled any president to undermine the judiciary and/or make reckless or dubious decisions while aware that he or she was not going to be questioned by the parliament and the courts. The president was also allowed to make regulations which could be employed later in respect to any legislative matter in parliament.54 It is submitted that this president’s quasi-legislative authority was sometimes arbitrarily evoked in direct violation of the doctrine of separation of powers.55 Moreover, the president was empowered to form a government and/or appoint a cabinet consisting of vice presidents and ministers.56 In relation to this, the parliament could, by resolution supported by two-thirds majority of its members, pass a vote of no confidence in the Government.57 Thereafter, the president had up to 14 days to resign or dissolve parliament and/or remove vice presidents, ministers, deputy ministers, and governors from their offices.58 In a nutshell, as discussed above, the author agrees with Muna Ndulo59 that the presidential powers in most African countries, including Zimbabwe, are extensively broadened at the expense of other organs of government. In other words, role of cabinet ministers is merely advisory in nature making it very difficult for them sometimes to effectively influence the president on certain key matters of government policy. (ii) Functions of the Legislature The legislative authority in Zimbabwe was vested in the legislature which comprised the president, the parliament,60 and/or any other designated person under the Lancaster House Constitution 1979.61 This indicates that there was very little or partial separation of powers since the president was also part of the legislature. In relation to this, notwithstanding the fact that there are very few countries that have absolute separation of powers, it is submitted that the president should not have been part of legislature to prevent the executive from interfering with the legislative functions of the legislature and to promote the doctrine of separation of powers.62 A president or deputy president of the senate63 was in charge of the senate which comprised 93 senators.64 Only a few of these senators were directly elected by the electorate, while the rest were indirectly appointed by the president from governors and representatives of chiefs.65 The president of the senate could resign or vacate his or her office upon the dissolution of parliament or when he or she became president, vice president, minister, deputy minister, or a provincial governor.66 Likewise, the speaker and deputy speaker of the national assembly were in charge of the national assembly.67 The national assembly comprised 210 members who were directly elected by the electorate.68 The speaker and deputy speaker of the national assembly were elected from the persons who were or have been members of the national assembly and who were not members of the cabinet and/or ministers and deputy ministers.69 The speaker or deputy speaker of could resign or vacate his or her office upon the dissolution of parliament or when he or she became a vice president, minister, deputy minister, senator, senate president, provincial governor, or a member of the national assembly.70 A member of parliament’s seat was declared vacant upon his or her death and resignation. Such seat could also become vacant if: (a) the parliament was dissolved; (b) a member of parliament failed to attend parliamentary sessions for 21 consecutive times without the leave of the senate or the national assembly; (c) he or she ceased to be a member of the political party of which he or she was a member at the date of his or her election to parliament; (d) he or she became president; (e) he or she became speaker; (f) he or she became a provincial governor; and (g) he or she became a member of a public office or statutory body.71 Nevertheless, it is not expressly stated why the aforesaid provisions were not applicable to the attorney general.72 Despite this, any member of parliament who was imprisoned or convicted of any offence was suspended, expelled, or prohibited from exercising his or her duties in parliament.73 On the other hand, the Lancaster House Constitution 1979 empowered any affected persons to enforce their fundamental human rights, especially, their civil and political rights through the Parliamentary Legal Committee (PLC).74 The PLC was appointed by the Committee on Standing Rules and Orders (CSRO).75 Accordingly, former judges, magistrates, members of parliament, ministers, provincial governors, and other qualified legal practitioners such as advocates and attorneys who had continuously practiced in Zimbabwe for not less than five years could be appointed to the PLC.76 The PLC worked hand in hand with the legislature to examine the constitutionality of parliamentary Bills other than Constitutional Bills in Zimbabwe. The PLC had various functions such as reporting its opinions to the senate or the national assembly and examining: (a) Bills and amended Bills other than Constitutional Bills; (b) any draft Bill transmitted by a minister to the clerk of parliament for reference to the PLC; (c) any statutory instrument published in the government gazette; and (d) any draft statutory instrument transmitted by other relevant authorities to the clerk of parliament for reference to the PLC.77 The PLC was empowered to report to the legislature on any Bill that violated the fundamental rights that were enshrined in the Declaration of Rights. Despite this, the author argues that the independence of the PLC was somewhat compromised since some of its members were sometimes appointed for political-related reasons.78 The legislature had the powers to make and pass all the relevant legislation in Zimbabwe.79 However, such powers were only exercised by the legislature in respect of any Bills that were passed by the national assembly as well as the senate and later assented to by the president.80 It appears that the president had discretion to either assent or withhold his or her assent to any Bill in terms of the Lancaster House Constitution 1979.81 This provision could have enabled any unscrupulous president the power to unjustifiably reject any Bill that he or she did not like for his or her own selfish political reasons. Perhaps, in this regard, it could have been better to have a provision that expressly obliged the president to assent to a Bill whenever it was passed by parliament. The legislature had further powers to amend the Constitution and to enrol with the office of the Registrar of the High Court, any Acts of parliament that were assented to by the president.82 The quorum for voting in relation to any dispute or objection of any matter in the senate was not less than eleven senators present apart from the senate president.83 On the other hand, the quorum for voting in relation to any dispute or objection of any matter in the national assembly was not less than 25 members present apart from the speaker.84 In relation to this, all decisions in relation to any matter at any session of the senate or the national assembly were determined by a majority of the votes of the members present.85 Moreover, the senate and the national assembly were jointly empowered to make standing orders in relation to: (a) the passing of Bills; (b) the presiding in the senate or the national assembly; (c) any matter in connection with which standing orders are required to be made in terms of the Constitution; and (d) the regulation and orderly conduct of other relevant proceedings in both the senate and the national assembly.86 Notwithstanding this, members of the executive such as the president, vice presidents, ministers, deputy ministers, and provincial governors had the right to sit and speak in parliament.87 In light of this, the president was not allowed to vote in parliament, while the vice presidents, ministers, deputy ministers, and provincial governors were entitled to vote in any house where they were members.88 This approach of granting members of the executive the right to sit and speak in parliament was probably aimed at promoting accountability. Nevertheless, the author submits that the same approach could also have enabled an incumbent president to easily influence the parliament to adopt any of his or her regulations and/or legislative instruments made in terms of the Presidential Powers Act.89 Moreover, this could have been worsened by the fact that the president was directly elected by the electorate and he or she required no parliamentary approval before entering office. Thus, unlike the position in South Africa where the president requires the continued approval of the legislature, the president in Zimbabwe appears to have been more powerful than the parliament itself.90 (B) Functions of the Legislature and the Executive Under the Zimbabwe Constitution 2013 (i) Functions of the Executive Like position under Lancaster House Constitution 1979,91 relatively broad presidential powers are expressly provided in the Zimbabwe Constitution 2013.92 However, under the Zimbabwe Constitution 2013, the executive authority is now expressly derived from general people of Zimbabwe and vested in the president.93 Furthermore, the president is the head of state and government as well as the commander in chief of the defence forces of Zimbabwe.94 Put differently, the president has powers to appoint all senior state officials such as cabinet ministers, the Commissioner General of Police, the Commissioner General of the Prisons and Correctional Services, the Director General of Intelligence Services, military commanders, and judges.95 The Zimbabwe Constitution of 2013 abolished the prime ministerial office from the executive. Consequently, the president is empowered to: (a) unilaterally dissolve parliament; (b) make peace or declare war; and (c) assent to or reject legislative Bills.96 As indicated above, the president still has some influence over the state, government, and other related spheres such as the legislature and the judiciary. In relation to this, it is provided that the president should exercise his or her executive authority through the cabinet in accordance with the Zimbabwe Constitution 2013.97 Nonetheless, it remains to be seen whether the president will comply with this provision in order to effectively execute all his or her duties in accordance with the Zimbabwe Constitution 2013. Given this background, it is now plausible to briefly discuss the current qualifications of the president in Zimbabwe. Like the former position under the Lancaster House Constitution 1979,98 any person is qualified or eligible for election as president if he or she: (a) is a citizen of Zimbabwe by birth or by descent; (b) has attained the age of 40 years; (c) is ordinarily resident in Zimbabwe; and (d) is registered as a voter.99 Seemingly, apart from the general qualification criterion stated above, there are no educational or other professional qualifications that are required before a person can qualify for election as president in Zimbabwe under the Zimbabwe Constitution 2013. It appears that this approach was directly borrowed from the Lancaster House Constitution 1979.100 Furthermore, like previous position under the Lancaster House Constitution 1979,101 it is only expressly indicated that 40 years is the entry age for any person who want to contest for election as president under the Zimbabwe Constitution 2013.102 Put differently, no specific exit age is expressly indicated for such person to be disqualified from contesting for election as president in Zimbabwe under the Zimbabwe Constitution 2013.103 However, it is encouraging to note that any person who has already held office as president under the Zimbabwe Constitution 2013 for two terms is now disqualified to contest for election as president or vice president.104 This introduction of a fixed term of office for the president and vice president could, if consistently enforced, eradicate tyranny and dictatorship in Zimbabwe. Like the previous position under the Lancaster House Constitution 1979,105 the president is directly elected by the electorate on the day or days scheduled for parliamentary and local elections in terms of the Zimbabwe Constitution 2013.106 Interestingly, both the presidents and vice presidents are now expressly required to be directly elected by the electorate under the Zimbabwe Constitution 2013.107 Moreover, it is now required that every candidate running for president must nominate two persons to stand for election jointly with him or her as vice presidents.108 It is further stated that every candidate running for president must designate one of the vice presidents as his or her candidate for first vice president and the other as his or her candidate for second vice president.109 While this style of presidential elections could enable the electorate to knowingly participate and choose their own preferred vice president, the author submits that the president could still indirectly remove the vice president from office by cancelling his or her assignments and duties indefinitely or by simply appointing a new vice president for political reasons.110 In this regard, the removal of Joyce Mujuru from the office of the vice president is a case in point. The president has a number of duties which, inter alia, include: (a) upholding, defending, and respecting the Constitution as the supreme law of the nation; (b) ensuring that the Constitution and all the laws of Zimbabwe are consistently observed; (c) promoting unity and peace in the nation of Zimbabwe; (d) recognizing and respecting the ideals and values of the liberation struggle; (e) ensuring the protection of the fundamental human rights and freedoms; (f) ensuring the protection of the rule of law; and (g) respecting the diversity of the people and communities of Zimbabwe.111 However, given the history of human rights violations in Zimbabwe,112 it remains to be seen whether the incumbent president will uphold the supremacy of the constitution and the rule of law to protect the fundamental human rights of all the people of Zimbabwe. Moreover, given the history of political, socio-economic, and tribal conflicts in Zimbabwe,113 it remains questionable whether the incumbent president will un-discriminatorily promote the diversity of all the people and communities of Zimbabwe. Furthermore, the president is empowered by the Constitution to: (a) assent to and/or sign Bills; (b) refer a Bill to the Constitutional Court for an opinion or advice on its constitutionality; (c) summon the national assembly, the senate, or parliament to an extraordinary sitting to conduct special business; (d) make the relevant appointments in terms of the Constitution or legislation; (e) call elections and referendums in terms of the Constitution and the relevant laws; (f) deploy the defence forces and to confer honours and awards; (g) appoint ambassadors, plenipotentiaries, diplomatic, and consular representatives; and (h) receive and recognize foreign diplomatic and consular representatives from other countries.114 The president is obliged to exercise the aforesaid powers in accordance with the Zimbabwe Constitution 2013 and the cabinet.115 Likewise, the cabinet may, subject to the Zimbabwe Constitution 2013, have the powers to: (a) direct the operations of government and conduct government business in parliament; (b) prepare, initiate, and implement national legislation; and (c) develop and implement national policy; and (d) advise the president on all relevant matters.116 Moreover, the president is empowered to form a government and/or appoint a cabinet consisting of vice presidents and ministers.117 In relation to this, it must be noted that the cabinet consists of the president, the vice presidents, and ministers.118 It appears that only the president has the power to appoint or remove the attorney general, ministers, and deputy ministers under the Zimbabwe Constitution 2013.119 In other words, vice presidents, ministers, and deputy ministers are accountable to the incumbent president.120 It is submitted, notwithstanding the fact that the parliament has the power to pass a vote of no confidence in the government, that the vice presidents, ministers, and deputy ministers should be consistently accountable to both the president and the parliament in accordance with the Constitution.121 It is further submitted that the president should appoint or remove ministers and deputy ministers after due consultation with the parliament in accordance with the Constitution. In addition, the president has the powers to declare war or make peace while the parliament has the powers to revoke such declaration, especially, when it is arbitrarily made.122 The president also has the prerogative to grant a pardon, respite, suspended sentence, or less severe punishment to any person convicted of a criminal offence against any law indefinitely or for a specified period.123 As was position under the Lancaster House Constitution 1979,124 this presidential prerogative to grant mercy to convicted offenders can also be exercised in respect of offences committed in countries other than Zimbabwe.125 Moreover, the president is empowered to declare a public emergency after the approval from the parliament.126 Nonetheless, unlike the previous position under the Lancaster House Constitution 1979,127 the examples of and/or instances where the president can declare a public emergency are not expressly enumerated under the Zimbabwe Constitution 2013.128 It is, however, important to note that any aggrieved person is now empowered to approach the Constitutional Court in order to determine the validity of and/or consequences of any declared state of public emergency.129 This occurs where (i) the declaration of a state of public emergency is not approved by parliament or such declaration is not considered by parliament within the stipulated period and (ii) a resolution passed by a majority of the members present at a joint sitting of the parliament resolves that such declaration must be extended or revoked. Notwithstanding this positive development, the author submits that all the aforesaid powers should be exercised by the president after consultation or approval from both the cabinet and the parliament in order to combat any possible biased enforcement of such powers and/or prerogatives in Zimbabwe.130 On the other hand, an acting president is allowed to perform the functions of the president when the office of the president becomes vacant or the incumbent president is unable to perform his or her functions due to illness and other related causes.131 Unlike the former position under the Lancaster House Constitution 1979,132 it is now expressly stated that the first vice president must be appointed as an acting president whenever the president is incapacitated or absent.133 Likewise, where the first vice president is incapacitated or absent, the second vice president must be appointed to be an acting president.134 Similarly, where both vice presidents are absent or incapacitated, a designated minister must be appointed by the president or the cabinet as an acting president.135 Nevertheless, like the former position under the Lancaster House Constitution 1979,136 an acting president needs approval from the majority of the cabinet members before he or she can exercise certain presidential powers such as the power to: (a) deploy the defence forces; or (b) enter into any international convention, treaty, or agreement; or (c) appoint or revoke the appointment of a vice president, minister, or deputy minister; or (d) assign or reassign functions to a vice president, minister, or deputy minister, including the administration of any Act of parliament or of any ministry or department, or to cancel any such assignment of functions.137 In light of this, it appears that the acting president is still not granted exclusive executive authority in relation to certain presidential powers in terms of the Zimbabwe Constitution 2013.138 In other words, the acting president needs approval of the cabinet before he or she could perform most of the presidential powers indicated above.139 Furthermore, it is not expressly provided whether the acting president is empowered to dissolve or prorogue parliament with or without approval from the majority of the cabinet members.140 Notably, in practice, any of the vice presidents is usually appointed as an acting president in Zimbabwe. Put differently, the vice presidents are constitutionally obliged to assist the president in the discharge of his or her functions.141 The incumbent president continues in office until the assumption of office by the president-elect.142 In this regard, it should be noted that both the president and vice presidents assume office when they take an oath of office before the Chief Justice or any other senior judge.143 Furthermore, any vice president who becomes president on the death, resignation, or removal from office of the president assumes office as soon as possible or within 48 hours after the office of the president became vacant.144 As earlier stated, term of office for the president and vice presidents is five years, and it commences on the day when they are sworn in.145 The president is allowed to resign from his or her office by tendering a resignation letter in writing to the speaker of the national assembly.146 Furthermore, the president or vice president can be removed from his or her office when a joint report of the committee of the senate and the national assembly and more than one half of such members has requested and recommended his or her removal from office for: (a) serious misconduct; or (b) wilful violation of the Zimbabwe Constitution 2013; or (c) failure to obey, uphold or defend the Zimbabwe Constitution 2013; and (d) inability to perform the functions of his or her office due to his or her physical or mental incapacity.147 In this regard, the joint senate and national assembly resolution to remove the president or vice president must be supported by at least two thirds of their total membership.148 It is now expressly provided that first vice president assumes office of president when the incumbent president has died, resigned, or been removed from office until the expiry of the former president’s term of office.149 Accordingly, the second vice president assumes office as the first vice president until the expiry of the former president’s term of office.150 This is a positive development which provides certainty on political succession and transition matters in the event of death, resignation, or incapacity of the president or vice president in Zimbabwe. Notably, any aggrieved presidential candidate is now allowed to challenge the validity of the election of a president or vice president by lodging a petition with the Constitutional Court.151 Like the former position under the Lancaster House Constitution 1979,152 the president has relatively broad immunity for personal liability in respect of any civil or criminal offences committed while he or she is still in office.153 The former president could, however, be charged for any civil or criminal activities that he did or omitted to do before he or she became president.154 This could indicate that the law will be applied retrospectively where the former president committed some offences before he or she entered the office of the president of Zimbabwe. Moreover, the former president could be personally charged for any civil or criminal activities that he did or omitted to do while he or she was in office as the president of Zimbabwe.155 In this regard, it is stated that the running of prescription in relation to any debts or liabilities of the president which occurred before or during his or her term of office are suspended whenever he or she remains in office.156 However, it is not clearly provided whether the vice presidents are also given the same immunity that is accorded to the incumbent president. Over and above, the author submits that both the president and vice presidents must be personally charged for their civil and criminal offences whenever such offences are committed, regardless of whether they are still in office or not to encourage more accountability. It is important to note that both the president and vice presidents are entitled to a salary, allowances, pension, and other benefits that could be prescribed under an Act of parliament.157 Consequently, the incumbent president and vice presidents as well as the former president and former vice presidents are prohibited from holding any other public office directly or indirectly while they are receiving a presidential pension from the state.158 This probably aimed at combating corruption, double dipping, and conflict of interests. Be that as it may, the author submits that the president is still enjoying excessive unilateral executive powers which could be arbitrarily employed against other people by any incumbent president. (ii) Functions of the Legislature Like the former position under the Lancaster House Constitution 1979,159 the legislative authority in Zimbabwe is vested in the legislature which comprises the president, the parliament, and/or any other delegated body or authority stipulated in terms of the Zimbabwe Constitution 2013.160 On the other hand, a different approach is employed in South Africa where the legislative authority is exclusively vested in the parliament.161 In this regard, as earlier stated,162 the mere fact that the president is also part of the legislature could indicate that the Zimbabwe Constitution 2013 does not adequately provide for the doctrine of separation of powers. Accordingly, the author concurs with Mhodi163 that the aforesaid provision164 that allows the president to be part of the legislature could end up being arbitrarily employed by the president to introduce draconian laws and regulations through the Presidential Powers Act, for adoption in parliament. In other words, the executive president still has some legislative authority which could directly or indirectly undermine or negatively interfere with the legislative authority of the parliament.165 The legislature has the authority to, inter alia: (a) amend the Zimbabwe Constitution 2013 in accordance with section 328 of the same Constitution; (b) make laws for the peace, order, and good governance of Zimbabwe; and (c) confer subordinate legislative powers upon another body or authority in accordance with section 134 of the Zimbabwe Constitution 2013.166 Thus, unlike the position under the Constitution of South Africa where the legislative authority is exclusively vested in the parliament consisting of the national assembly and the national council of provinces,167 the executive president of Zimbabwe also has legislative authority under the Zimbabwe Constitution 2013.168 Put differently, in contrast to the South African position where the parliament comprises the national assembly and the national council of provinces,169 the Zimbabwean parliament consists of the senate and the national assembly and it has various functions such as: (a) protecting the Zimbabwe Constitution 2013; (b) promoting democratic governance in Zimbabwe; (c) ensuring that the provisions of the Zimbabwe Constitution 2013 are upheld in the national interest by all the state institutions and agencies of government at every level; and (d) ensuring that all the institutions and agencies of the state and/or government are accountable to the parliament.170 Notably, relatively few senators out of the total number of 80 senators in senate are directly elected by the electorate through the proportional representation system,171 while the rest are indirectly appointed by the national assembly and the president from the candidates representing political parties in each province as well as representatives of chiefs respectively.172 Any person who is 40 years old or holds the office of chief and/or registered as a voter is qualified for election as a senator.173 However, such person is disqualified from election as a senator if he or she is already a member of parliament or convicted of an offence within five years before the election and/or disqualified to register as a voter.174 The president and deputy president of the senate are in charge of the senate, and they both act as presiding officers in the senate.175 Moreover, both the president and deputy president of the senate are entitled to resign or vacate their offices when the parliament is dissolved after general elections or when they become president, vice president, minister or deputy minister, or the speaker of the national assembly or when the deputy president of the senate cease to be a senator.176 Similarly, the speaker and deputy speaker of the national assembly are in charge of the national assembly, and they both act as presiding officers in the national assembly.177 The speaker and deputy speaker are elected from the persons who are or have been members of the national assembly and who are not members of the cabinet and/or ministers and deputy ministers.178 Both the speaker and deputy speaker of the national assembly are allowed to resign or vacate their offices when the parliament is dissolved after general elections or when they become president, vice president, minister or deputy minister, or president of the senate or when they cease to be members of the national assembly.179 As was the position under the Lancaster House Constitution 1979,180 the national assembly is consists of 210 members who are directly elected by the electorate.181 An additional 60 women are also elected as members of the national assembly from all the provincial constituencies under a party-list system of proportional representation.182 Thus, unlike the South African national assembly which comprises up to 400 members who are directly elected by the voters,183 the Zimbabwean national assembly is made up of not more than 270 elected members.184 Any person who is registered as a voter and who has attained 21 years of age is eligible for election as a member of the national assembly.185 Nonetheless, such person is disqualified for election as a member of the national assembly if he or she is already a member of parliament or convicted of an offence within five years before the election and/or disqualified to register as a voter.186 Furthermore, like the former position under the Lancaster House Constitution 1979,187 a member of parliament’s seat becomes vacant upon his or her death and resignation.188 A member of parliament’s seat also becomes vacant if: (a) the parliament is dissolved; (b) a member of parliament failed to attend parliamentary sessions for 21 consecutive times without the leave of the senate or the national assembly; (c) at least one half of the total membership of the national assembly resolves by a vote that the seat should become vacant; (d) he or she becomes the president or vice president; (e) he or she becomes the speaker of the national assembly or the president of the senate; (f) he or she ceases to be qualified for registration as a voter or has been declared insolvent under the relevant laws in Zimbabwe without being rehabilitated or discharged; (g) he or she is certified to be mentally disordered and/or intellectually handicapped under any law in force in Zimbabwe; (h) he or she is convicted of an offence under the Electoral Laws of Zimbabwe; (i) he or she ceased to be a member of the political party of which he or she was a member at the date of his or her election to parliament; and (j) he or she becomes a member of a public office or government-controlled entity or statutory body.189 The grounds stated above were similarly provided under the Lancaster House Constitution 1979.190 Similar grounds are also considered to determine the tenure of seats for members of the national assembly in South Africa.191 Moreover, like the former position under the Lancaster House Constitution 1979,192 the Zimbabwe Constitution 2013 allows any affected persons to petition the parliament and/or enforce their fundamental human rights through the PLC.193 The PLC is appointed by the CSRO consisting of members of parliament who are not ministers or deputy ministers and other persons who are qualified to practise as legal practitioners in Zimbabwe.194 Unlike the former position under the Lancaster House Constitution 1979,195 it appears that there is no specific practise time limit required before the legal practitioners are appointed to the PLC under the Zimbabwe Constitution 2013.196 The PLC is a constitutional watchdog of the parliament which is empowered to report its opinions to the senate and the national assembly as well as to examine: (a) the constitutionality of Bills and amended Bills other than Constitutional Bills; (b) any draft Bill transmitted by a minister to the clerk of parliament for reference to the PLC; (c) any statutory instrument published in the government gazette; and (d) any draft Bill or statutory instrument referred to the PLC by the vice president or the relevant minister or any other relevant authority.197 Be that as it may, the author argues that the independence of the PLC could be negatively affected since it is obliged report to the vice president, the minister, and any other relevant authority before making or finalizing its recommendations.198 Furthermore, the legislature has the powers to make, pass, or reject all the relevant legislation in Zimbabwe.199 These powers are only exercised by the legislature in respect of any Bills that are passed by both the national assembly.200 A similar position is followed in South Africa.201 Moreover, like the previous position under the Lancaster House Constitution 1979,202 the president has discretion to either assent or withhold his or her assent to any Bill under the Zimbabwe Constitution 2013.203 It is submitted that this discretion could give rise to unfair rejection of some Bills by the incumbent president for his or her personal and other political reasons. The parliament is further empowered to delegate its power to make statutory instruments in respect of subsidiary legislation to the relevant persons and to enrol with the office of the Registrar of the High Court, any Acts of parliament that have been assented to by the president.204 The Zimbabwe Constitution 2013 does not provide a specific quorum for voting in relation to any dispute or objection of any matter in the parliament.205 However, all decisions in relation to any matter at any session of either the senate or the national assembly are determined by a majority of the votes of the members present.206 Despite this, members of the executive such as the president, vice presidents, ministers, deputy ministers, and members of the PLC have the right to sit and speak in parliament without voting.207 This could be targeted at promoting transparency and discouraging members of the executive from engaging themselves in illicit activities such as corruption. A similar approach is followed in South Africa.208 The parliament is also obliged to promote public access to parliamentary proceedings and to appoint the CSRO209 which regulates the senate and the national assembly by making standing orders in relation to: (a) the passing of Bills; (b) the delegation, appointment, and functions of the relevant committees; (c) code of conduct for members of parliament and the questioning of ministers and deputy ministers by members of parliament; (d) the powers, privileges, and immunities of members of parliament; and (e) the orderly conduct of other relevant proceedings in both the senate and the national assembly.210 A related approach is also followed in South Africa.211 Furthermore, the suspension or voting by a person not entitled to do so in parliament and/or a vacancy in the membership of the parliament does not stop or invalidate parliamentary proceedings.212 Like the position in South Africa,213 the parliamentary term of office in Zimbabwe is five years and the president may dissolve the parliament if at least two thirds of the total membership of the parliament has passed a resolution to dissolve the parliament.214 Moreover, the president may, subject to a constitutional review, dissolve parliament if the national assembly has unreasonably refused to pass an Appropriation Bill.215 The president may also dissolve parliament following a vote of no confidence in the government.216 Additionally, like the status quo in South Africa where the national assembly may remove the president through a resolution supported by at least two thirds of its members,217 the Zimbabwean parliament may remove the president or vice president through a resolution passed by at least one half of the total membership of the parliament.218 Be that as it may, the Zimbabwe Constitution 2013 does not expressly provide for the removal of the president or vice president by the parliament through a vote of no confidence.219 In relation to this, the author concurs with Mhodi220 who argues that the removal of the president or vice president through a parliamentary vote of no confidence was probably not provided for under the Zimbabwe Constitution 2013 because the president and vice president are directly elected by the electorate for a fixed period. Accordingly, the author submits that the parliament should have been empowered to remove the president or vice president the same way the president is authorized to remove or dissolve the parliament.221 This could have discouraged the vice president or president from circumventing his or her possible impeachment from office through the parliament by dissolving the parliament before such impeachment.222 Perhaps, in this regard, following the position in Botswana, Mauritius, and South Africa where members of the executive require the continued approval of the legislature to remain in office could have enabled the parliament to ensure accountability of such members in Zimbabwe.223 (C) Evaluation and Analysis of the Functions of the Legislature and the Executive Under the Zimbabwe Constitution 2013 With regard to the functions of the executive, like the former position under the Lancaster House Constitution 1979,224 the president has executive and administrative control over the state and government under the Zimbabwe Constitution 2013.225 However, apart stating that any 40-year-old Zimbabwean citizen is eligible to contest for election as president in Zimbabwe, no educational or other professional qualifications are required before such person can qualify for election as president under the Zimbabwe Constitution 2013.226 This gap was also found in the Lancaster House Constitution 1979.227 Moreover, apart from stating 40 years as the eligible age for persons to contest for election as president, no specific age is stipulated as the exit age for such persons to be ineligible to contest for election as president under the Zimbabwe Constitution 2013.228 This position was directly imported from the Lancaster House Constitution 1979229 and has remained unresolved under the Zimbabwe Constitution 2013. Nonetheless, it is also not a requirement that a person must have certain professional qualifications before he or she is eligible for election as president under the Constitution of South Africa. Furthermore, unlike the former position under the Lancaster House Constitution 1979,230 the term of office for the president and vice presidents is now fixed to two terms under the Zimbabwe Constitution 2013.231 It is hoped that the introduction of a fixed term of office for the president and vice president will be consistently enforced to eradicate tyranny and dictatorship in Zimbabwe. Like the former position under Lancaster House Constitution 1979,232 the president has immunity for personal liability in respect of any civil or criminal offences committed while he or she is still in office under the Zimbabwe Constitution 2013.233 This is arguably one of the main flaws of the Zimbabwe Constitution 2013. On the other hand, no such flaw is found in the Constitution of South Africa.234 Both the president and vice presidents are now expressly required to be directly elected by the electorate under the Zimbabwe Constitution 2013.235 Moreover, the president has powers to appoint all senior state officials such as cabinet ministers, the Commissioner General of Police, the Commissioner General of the Prisons and Correctional Services, the Director General of Intelligence Services, military commanders, and judges.236 However, any aggrieved person can now approach the Constitutional Court in order to determine the validity of any executive actions of the president and/or consequences of any declared state of public emergency.237 Furthermore, the president or vice president can be removed by a joint senate and national assembly resolution that is supported by at least two thirds of their total membership.238 Like the former position under the Lancaster House Constitution 1979,239 the legislative authority is vested in the Zimbabwean legislature which comprises the president, the parliament, and/or any other delegated body or authority under the Zimbabwe Constitution 2013.240 This suggests that the executive president still has some legislative authority which could negatively influence and/or interfere with the legislative functions of the parliament.241 As stated earlier,242 the parliamentary term of office in Zimbabwe is five years, and the president may dissolve the parliament if at least two thirds of the total membership of the parliament has passed a resolution to dissolve the parliament.243 However, given the existing economic and political challenges in Zimbabwe, it remains to be seen whether the president will not arbitrarily interfere with the provisions on the dissolution of the parliament. Be that as it may, it is encouraging to note that the Zimbabwean parliament may remove the president or vice president through a resolution passed by at least one half of its total membership.244 In relation to this, it is important to note that very few senators are directly elected by the electorate since most the senators are indirectly appointed by the national assembly and the president from the candidates representing political parties in each province as well as representatives of chiefs, respectively.245 Moreover, the parliament is not empowered to remove the president or vice president through a parliamentary vote of no confidence.246 Like the former position under the Lancaster House 1979,247 the president and deputy president of the senate are in charge of the senate and they both act as presiding officers in the senate.248 In the same vein, the speaker and deputy speaker of the national assembly are in charge of the national assembly, and they both act as presiding officers in the national assembly.249 It is interesting to note that the speaker and deputy speaker of the national assembly as well as the president and deputy president of the senate are allowed to resign or vacate their offices when the parliament is dissolved after general elections or when they become president, vice president, minister or deputy minister, or president of the senate or when they cease to be members of the national assembly. This could further imply that members of the executive are not constitutionally empowered to interfere with the functions of the parliament. On the other hand, like the former status quo under the Lancaster House Constitution 1979,250 the Zimbabwe Constitution 2013 empowers affected persons to petition the parliament and/or enforce their fundamental human rights through the PLC.251 This could enable all affected persons to directly or indirectly enforce their fundamental human rights through the courts or the PLC, respectively. 3. RECOMMENDATIONS The author submits that the relatively broad immunity provisions in the Zimbabwe Constitution 2013 should be streamlined to discourage some unscrupulous presidents from refusing to leave office after the expiry of their terms in an attempt to evade civil and criminal charges.252 It is also recommended that both the president and vice presidents should be personally charged for their civil and criminal offences whenever such offences are committed to encourage more accountability.253 It is also suggested that the Zimbabwe Constitution 2013 should be amended to provide for a specific exit age for any prospective or incumbent president to be disqualified from contesting for election as president in Zimbabwe after he or she has reached that age.254 The Zimbabwe Constitution 2013 should also be amended to enact provisions that oblige any prospective presidential candidate to have the relevant educational and/or other professional qualifications be he or she can be eligible for election as president in Zimbabwe. It is further suggested that the president should exercise all his or her executive powers after consultation with both the cabinet and the parliament to prevent any possible biased enforcement of such powers and/or prerogatives.255 It is further recommended that the Zimbabwe Constitution 2013 should be amended to enact a provision that exclusively vest the legislative authority in the parliament of Zimbabwe. If enacted, this provision could enhance the functions of the parliament by combating undue political interference from the executive. The Zimbabwe Constitution 2013 should also be reviewed to expressly provide for the removal of the president or vice president by the parliament through a vote of no confidence.256 It is further suggested that the parliament should be empowered to remove the president or vice president the same way the president is authorized to remove or dissolve the parliament.257 4. CONCLUDING REMARKS As stated earlier,258 various requirements need to be satisfied before a person can be eligible for election as president in Zimbabwe. Furthermore, a president may now only be elected for two terms in office. However, the president still enjoys relatively broad immunity from personal liability for civil and criminal offences committed while he or she is in office.259 Over and above, given the history of human rights violations in Zimbabwe, it remains to be seen whether the incumbent president will uphold the supremacy of the constitution and the rule of law to protect the fundamental human rights of all the people of Zimbabwe.260 Moreover, unlike the status quo in South Africa where the legislative authority is exclusively vested in the parliament, such authority is controversially vested in both the executive president and the parliament of Zimbabwe.261 This flawed approach could enable the president to indirectly usurp parliament powers by evoking the Presidential Powers Act in order to introduce draconian laws.262 Given this background, it is hoped that the recommendations as outlined in this article will be utilized by the relevant persons to entrench constitutional democracy and improve the protection of fundamental human rights in Zimbabwe. 1 Hereinafter referred to as the Zimbabwe Constitution 2013. 2 See N Kersting (ed) Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe (Friedrich-Ebert-Stiftung Harare 2009) 7–309; PT Mhodi ‘An Analysis of the Doctrine of Constitutionalism in the Zimbabwean Constitution of 2013’ [2013] SAPL 28, 383 at 384–97; G Manyatera and CM Fombad ‘An Assessment of the Judicial Service Commission in Zimbabwe’s New Constitution’ [2014] CILSA 47, 89 at 90–108; and L Chiduza ‘Towards the Protection of Human Rights: Do the New Zimbabwean Constitutional Provisions on Judicial Independence Suffice?’ [2014] PER J 17, 368 at 369–409. 3 See the relevant provisions under ch. 6 of the Zimbabwe Constitution 2013. 4 See the relevant provisions under ch. 5 of the Zimbabwe Constitution 2013. Nonetheless, this article is mainly focussed on the executive functions of the president and deputy presidents. Consequently, a detailed discussion of the functions of cabinet ministers and their deputies is beyond the scope of this article. 5 F Gwenhamo, JW Fedderke and R de Kadt ‘Measuring Institutions: Indicators of Political Rights, Property Rights and Political Instability in Zimbabwe’ [2012] J Peace Res 49, 593 at 594–601 and A de Bourbon ‘Human Rights Litigation in Zimbabwe: Past, Present and Future’ [2003] Afr Hum Rights L J 3, 195 at 196–221; JA Mavedzenge and DJ Coltart A Constitutional Law Guide Towards Understanding Zimbabwe’s Fundamental Socio-economic and Cultural Human Rights (2014) 5–57, available at https://constitutionallythinking.files.wordpress.com/2014/10/a-constitutional-law-guide-towards-understanding-zimbabwes-fundamental-socio-economic-and-cultural-human-rights.pdf (accessed 26 August 2015). 6 Manyatera and Fombad (n 2) 90–108; Mhodi (n 2) 384–97. 7 (SI 1979/1600) as amended by Act 1 of 2009 which introduced amendment 19 of 2009, hereinafter referred to as the Lancaster House Constitution 1979. See relevant provisions under chs IV and V of the Lancaster House Constitution 1979. This amendment was, inter alia, aimed at establishing the executive functions of the president, prime minister, deputy prime ministers, and other ministers under the Government of National Unity (GNU) between the Zimbabwe African National Union Patriotic Front (ZANU PF) and the two Movement for Democratic Change (MDC) formations. In relation to this, it must be noted that the Lancaster House Constitution 1979 was a transitional or ceasefire document that was concluded between the white minority government and the leaders of the liberation struggle in Lancaster, United Kingdom. Thereafter, it was amended a record 19 times by the ZANU PF led government. On the other hand, the Zimbabwe Constitution 2013 is a relatively home-grown Constitution that replaced the Lancaster House Constitution 1979 and all its amendments to pave way for general elections in 2013. 8 Kersting (n 2) 7–309; Gwenhamo, Fedderke, and de Kadt (n 5) 594–601; and de Bourbon (n 5) 196–221. 9 See the relevant provisions under ch. IV. 10 Section 27(1) of the Lancaster House Constitution 1979. 11 Section 27(1) of the Lancaster House Constitution 1979. 12 Section 27(2) of the Lancaster House Constitution 1979. 13 Section 28(1) of the Lancaster House Constitution 1979. 14 Section 28(1)(b) of the Lancaster House Constitution 1979. 15 Section 58(1). 16 Section 28(2) and (3)(a) of the Lancaster House Constitution 1979. 17 Section 28(3)(b) of the Lancaster House Constitution 1979. 18 Section 28(5) of the Lancaster House Constitution 1979. 19 Section 63(4) of the Lancaster House Constitution 1979. 20 Section 63(2) read with section 28(3)(b) of the Lancaster House Constitution 1979. 21 Section 28(3)(b) read with section 29(1)(b) of the Lancaster House Constitution 1979. Notably, the bicameral parliament system existed between 1980 and 1989 and was reintroduced in November 2005. In practice, the party that won most seats in parliamentary (senate and national assembly) elections usually dominates and controls the law making process in Zimbabwe. Currently, the functions of the senate are envisaged in sections 120 and 130 of the Zimbabwe Constitution 2013. 22 Section 63(4) and (5) read with section 29(1)(b) of the Lancaster House Constitution 1979. 23 Section 29(1)(b) of the Lancaster House Constitution 1979. 24 Section 29(2) of the Lancaster House Constitution 1979. 25 Section 29(3) of the Lancaster House Constitution 1979. 26 Section 29(3). 27 Section 30(1) of the Lancaster House Constitution 1979. 28 Section 30(2)(a) of the Lancaster House Constitution 1979. 29 Section 30(2)(b) of the Lancaster House Constitution 1979. 30 Section 30(2)(b) of the Lancaster House Constitution 1979. 31 C Masekesa ‘Should He Stay or Should He Go? The Mugabe Question’ Zimbabwe Situation (8 January 2014), http://www.zimbabwesituation.com/news/zimsit_should-he-stay-or-should-he-go-the-mugabe-question/ (accessed 17 September 2015). 32 Sections 31 and 31C of the Lancaster House Constitution 1979. 33 In relation to this, a vice president or a designated minister (in cases where the vice president is incapacitated or absent) could be appointed as an acting president in terms of section 31(1) of the Lancaster House Constitution 1979. 34 This provision was subject to section 51 of the Lancaster House Constitution 1979. 35 Section 31(2) of the Lancaster House Constitution 1979. 36 Section 31(2) of the Lancaster House Constitution 1979. 37 Section 30 of the Lancaster House Constitution 1979. 38 Section 31A of the Lancaster House Constitution 1979. 39 Section 31B of the Lancaster House Constitution 1979. 40 Section 31H(1) of the Lancaster House Constitution 1979. 41 Section 31H(2) of the Lancaster House Constitution 1979. 42 Section 31H(3) and (4) of the Lancaster House Constitution 1979. 43 Section 31H(5) of the Lancaster House Constitution 1979. 44 Section 31H(5) of the Lancaster House Constitution 1979. 45 Section 31H(5) read with sections 31C, 31D, and 31E of the Lancaster House Constitution 1979; see further Kersting (n 2) 216–18. 46 In other words, ministers, vice presidents, deputy ministers, and provincial governors could be removed by the president at any time or resign upon the assumption of office of a new president. Additionally, no person could be appointed as vice president, minister, deputy minister, or governor for more than three months unless he or she was a member of parliament. Section 31E read with sections 31C and 31D of the Lancaster House Constitution 1979; also, see Kersting (n 2) 216–24, for further related remarks. 47 Kersting (n 2) 216–24. 48 Kersting (n 2) 218–19. 49 Section 31I(1) of the Lancaster House Constitution 1979. 50 Section 31I(2) of the Lancaster House Constitution 1979. 51 Section 31J(2) read with subsections (3) to 12 of the Lancaster House Constitution 1979. 52 Section 31J of the Lancaster House Constitution 1979. 53 Section 31K of the Lancaster House Constitution 1979. 54 See section 2 and other relevant provisions of the Presidential Powers (Temporary Measures) Act 1 of 1986, hereinafter referred to as the Presidential Powers Act. 55 Mhodi (n 2) 388–92. 56 Section 31G of the Lancaster House Constitution 1979. 57 Section 31F of the Lancaster House Constitution 1979. 58 Section 31F(3) of the Lancaster House Constitution 1979. 59 Kersting (n 2) 216–20. 60 The parliament comprised members of the senate and the national assembly. Section 33 of the Lancaster House Constitution 1979. 61 Section 32. 62 Mhodi (n 2) 388–92. 63 The president of the senate was elected from persons who were or have been members of the senate or the national assembly and who were not members of the cabinet, ministers, deputy ministers, and provincial governors. Section 35 read with section 36 of the Lancaster House Constitution 1979. 64 Section 33 of the Lancaster House Constitution 1979. In other words, amendment 19 of this constitution enabled 93 persons to be elected for senate during the general elections. 65 Sections 34 and 35 of the Lancaster House Constitution 1979. 66 Section 36 of the Lancaster House Constitution 1979. 67 Section 39 of the Lancaster House Constitution 1979. 68 Section 38 of the Lancaster House Constitution 1979. 69 Section 39(2) of the Lancaster House Constitution 1979. 70 Section 40(2) and (5) of the Lancaster House Constitution 1979. 71 Section 41 of the Lancaster House Constitution 1979. 72 Section 41(4) of the Lancaster House Constitution 1979. 73 Sections 42 and 43 of the Lancaster House Constitution 1979. 74 Section 40A and B of the Lancaster House Constitution 1979; de Bourbon (n 5) 196–201. 75 Section 40A(1) read with (2)–(4) of the Lancaster House Constitution 1979. The CSRO was made up of the speaker; the president of the senate; the deputy speaker; the deputy president of the Senate; and other members appointed by both the speaker and the president of the senate. See section 57(2) of the Lancaster House Constitution 1979. 76 Section 40A(2) read with (3) of the Lancaster House Constitution 1979. 77 Section 40B of the Lancaster House Constitution 1979. 78 See generally de Bourbon (n 5) 196–201; Mhodi (n 2) 388–92; L Madhuku ‘Constitutional Protection of the Independence of the Judiciary: A Survey of the Position in Southern Africa’ [2002] J Afr L 46, 232 at 232–58 and L Madhuku ‘The Appointment Process of Judges in Zimbabwe and Its Implications for the Administration of Justice’ [2006] SAPR/PL 21, 345 at 346–69, for further related discussion. 79 Section 50 of the Lancaster House Constitution 1979. 80 Section 51 of the Lancaster House Constitution 1979. 81 Section 51(2), (3), and (3a) of the Lancaster House Constitution 1979. 82 Sections 52 and 53 of the Lancaster House Constitution 1979. 83 Section 54(1) of the Lancaster House Constitution 1979. 84 Section 54(2) of the Lancaster House Constitution 1979. 85 Section 56(1) of the Lancaster House Constitution 1979. 86 Section 57 of the Lancaster House Constitution 1979. 87 Sections 46 and 47 of the Lancaster House Constitution 1979. 88 Likewise, the attorney general was allowed to sit and speak in the senate as well as the national assembly without voting. Sections 46 and 47 of the Lancaster House Constitution 1979. 89 Mhodi (n 2) 384–97. 90 See Kersting (n 2) 160–65, for further related remarks. 91 See the relevant provisions under ch. IV; also, see related comments in para. 2(A)(i) above. 92 See the relevant provisions under ch. 5. 93 Section 88(1) of the Zimbabwe Constitution 2013. 94 Section 89 of the Zimbabwe Constitution 2013. 95 See the relevant provisions under chs 5, 6, 8, and 11 of the Zimbabwe Constitution 2013. 96 See the relevant provisions under chs 5, 6, and 8 of the Zimbabwe Constitution 2013. 97 Section 88(2) of the Zimbabwe Constitution 2013. 98 See related comments in para. 2(A)(i) above. 99 Section 91(1) of the Zimbabwe Constitution 2013. 100 See para. 2(A)(i) above. 101 See para. 2(A)(i) above. 102 Section 91(1). 103 Section 91(1). 104 A person who served as president or vice president for a continuous or non-continuous term of five years was disqualified. Notably, a three or more years’ service is regarded as a full term in this regard. Section 91(2) read with section 95 of the Zimbabwe Constitution 2013. 105 See relevant sections in para. 2(A)(i) above. 106 Section 92(3) read with sections 158, 109(4) and (5), and 143 of the Zimbabwe Constitution 2013. Notably, such elections are usually held not more than 30 days before the expiry of the parliament’s 5-year term or 90 days after the dissolution of parliament through a parliamentary resolution and/or 90 days after the parliament is dissolved through a vote of no confidence. 107 Section 92(1), (2), (3), and (5) read with section 158. 108 Section 92(2) of the Zimbabwe Constitution 2013. 109 Section 92(2) of the Zimbabwe Constitution 2013. 110 Section 100 read with sections 90, 94, 97, and 99 of the Zimbabwe Constitution 2013. 111 Section 90 of the Zimbabwe Constitution 2013. 112 Amnesty International ‘Walk the Talk’: Zimbabwe Must Respect and Protect Fundamental Freedoms During the 2013 Harmonized Elections (Amnesty International Publications 2013) 5 at 6–30, available at: http://www.refworld.org/docid/51e500634.html (accessed 15 May 2017) and the Zimbabwe Human Rights Forum Zimbabwe Human Rights, Rule of Law & Democracy Report (2013) 1 at 2–67, available at: http://www.hrforumzim.org/publications/annual-reports/zimbabwe-human-rights-rule-of-law-and-democracy-2013-annual-report/ (accessed 15 May 2017). 113 See the International Crisis Group Zimbabwe: Waiting for the Future AFRICA Briefing No 103 (29 September 2014) 1 at 2–19, available at: https://www.crisisgroup.org/africa/southern-africa/zimbabwe/zimbabwe-waiting-future (accessed 15 May 2017). C Dziva, B Dube and P Manatsa ‘A Critique of the 2008 Government of National Unity and Human Rights Protection in Zimbabwe’ [2013] Int J Hum Soc Sc Invent 2, 83, 83–91; Amnesty International ‘Zimbabwe: Human Rights Agenda for the Government 2013–2018’ (Amnesty International Publications 2013) 5 at 6–22, available at: https://www.crisisgroup.org/africa/southern-africa/zimbabwe/zimbabwe-waiting-future (accessed 15 May 2017); and de Bourbon (n 5) 196–221. 114 Section 110(1) and (2) of the Zimbabwe Constitution 2013. 115 Section 110(1), (2), and (6) of the Zimbabwe Constitution 2013. 116 Section 110(3) of the Zimbabwe Constitution 2013. 117 Sections 104–108 of the Zimbabwe Constitution 2013. 118 Section 105 of the Zimbabwe Constitution 2013. 119 Sections 108, 114, and 115 of the Zimbabwe Constitution 2013. Notably, the office of the attorney general was originally mandated to deal with both criminal and civil laws of Zimbabwe. Nonetheless, the Zimbabwe Constitution 2013 now provides that the attorney general deals with the enforcement of civil laws, while the prosecutor general oversees the enforcement of criminal laws in Zimbabwe. 120 Section 107 of the Zimbabwe Constitution 2013. 121 Sections 109 and 119(3) read with sections 107 and 108 of the Zimbabwe Constitution 2013. 122 Section 111 of the Zimbabwe Constitution 2013. 123 Section 112 of the Zimbabwe Constitution 2013. 124 See related sections in para. 2(A)(i) above. 125 Section 112 of the Zimbabwe Constitution 2013. 126 Section 113 of the Zimbabwe Constitution 2013. 127 See the relevant sections in para. 2(A)(i) above. 128 Section 113. It must be noted that various fundamental rights and freedoms of people are usually limited in accordance with the Constitution during a public emergency. Section 87 read with section 86 of the Zimbabwe Constitution 2013. 129 Section 113(7) and (8) of the Zimbabwe Constitution 2013. 130 Sections 111, 112, and 113 of the Zimbabwe Constitution 2013. The cabinet is empowered to direct operations of government and government business in parliament. It is also authorized to advise the president and to prepare, initiate, and implement national legislation. This suggests that the cabinet influences the functions of both the parliament and the president. Section 110(3) of the Zimbabwe Constitution 2013. 131 Section 100(1) of the Zimbabwe Constitution 2013. 132 Section 31. 133 Section 100(1) of the Zimbabwe Constitution 2013. 134 Section 100(1) of the Zimbabwe Constitution 2013. 135 Section 100(1)(c) of the Zimbabwe Constitution 2013. 136 Section 31. 137 Section 100(2) read with section 110 of the Zimbabwe Constitution 2013. 138 Section 100(2) of the of the Zimbabwe Constitution 2013. 139 Section 100(2) of the of the Zimbabwe Constitution 2013. 140 Section 100 of the Zimbabwe Constitution 2013. 141 Section 99 of the Zimbabwe Constitution 2013. 142 Section 94(2) of the Zimbabwe Constitution 2013. 143 This is usually done 9 days after they are declared to be elected or within 48 hours after the Constitutional Court has declared them to be the winners. Section 94(1) of the Zimbabwe Constitution 2013. 144 Section 94(3) of the Zimbabwe Constitution 2013. 145 Section 95 read with section 91(2) of the Zimbabwe Constitution 2013. 146 Likewise, a vice president can tender his or her resignation letter to the president. Section 96 of the Zimbabwe Constitution 2013. 147 Section 97 of the Zimbabwe Constitution 2013. 148 Section 97(3) of the Zimbabwe Constitution 2013. 149 Section 101(1)(a) of the Zimbabwe Constitution 2013. 150 Section 101(1)(b) of the Zimbabwe Constitution 2013. 151 Such petition must be filed within seven days after the date of the declaration of the results of the election. Section 93 of the Zimbabwe Constitution 2013. 152 See para. 2(A)(i) above. 153 Section 98(1) of the Zimbabwe Constitution 2013. 154 Section 98(2) of the Zimbabwe Constitution 2013. 155 Section 98(4) of the Zimbabwe Constitution 2013. 156 Section 98(3) of the Zimbabwe Constitution 2013. 157 Section 102 of the Zimbabwe Constitution 2013. 158 Section 103 of the Zimbabwe Constitution 2013. 159 See related comments and sections in para. 2(A)(ii) above. 160 Sections 116 and 117 read with section 134. 161 Section 44 of the Constitution of South Africa. 162 See related comments in para. 2(A)(ii) above. 163 Mhodi (n 2) 388–89. 164 Section 116 of the Zimbabwe Constitution 2013. 165 Mhodi (n 2) 388–89. 166 Section 117(2) of the Zimbabwe Constitution 2013. 167 Section 42 read with sections 43 and 44 of the Constitution of South Africa. 168 Section 116 read with section 117. 169 Section 42(1) of the Constitution of South Africa. 170 Sections 118 and 119 of the Zimbabwe Constitution 2013. 171 Section 120(1)(a) of the Zimbabwe Constitution 2013. 172 Section 120(1)(b)–(d) and (2) of the Zimbabwe Constitution 2013. In other words, the aforesaid proportional representation system of electing senators is required to provide an equal representation of women and persons with disabilities in the senate. 173 Section 121(1)–(3) of the Zimbabwe Constitution 2013. 174 Section 121(4) and (5) of the Zimbabwe Constitution 2013. 175 Sections 122 and 123 of the Zimbabwe Constitution 2013. 176 Sections 122(7) and (8) and 123(5) and (6) of the Zimbabwe Constitution 2013. 177 Sections 126 and 127 of the Zimbabwe Constitution 2013. 178 Sections 126 and 127 of the Zimbabwe Constitution 2013. 179 Sections 126(7) and (8) and 127(5) and (6) of the Zimbabwe Constitution 2013. 180 See earlier comments in para. 2(A)(ii) above. 181 Section 124 of the Zimbabwe Constitution 2013. 182 Section 124(1)(b) read with (2) and (3) of the Zimbabwe Constitution 2013. 183 Section 46 of the Constitution of South Africa. 184 Section 124 of the Zimbabwe Constitution 2013. 185 Section 125(1) of the Zimbabwe Constitution 2013. 186 Section 125(2) and (3) of the Zimbabwe Constitution 2013. 187 See earlier comments in para. 2(A)(ii) above. 188 Section 129 read with section 128 of the Zimbabwe Constitution 2013. 189 Section 129 of the Zimbabwe Constitution 2013. 190 Section 41. 191 Section 47 of the Constitution of South Africa. 192 See relevant sections in para. 2(A)(ii) above. 193 Section 152 read with sections 149, 145, 146, and 147 of the Zimbabwe Constitution 2013. 194 Section 152(1) and (2) of the Zimbabwe Constitution 2013. 195 See sections and discussions in para. 2(A)(ii) above. 196 Section 152(1) and (2) of the Zimbabwe Constitution 2013. 197 Section 152(3)–(5) of the Zimbabwe Constitution 2013. 198 Section 152(3)–(4) of the Zimbabwe Constitution 2013. 199 Section 130–134 of the Zimbabwe Constitution 2013. 200 Section 131 of the Zimbabwe Constitution 2013. 201 Section 55 of the Constitution of South Africa. 202 See para. 2(A)(ii) above. 203 Section 131(6)–(10) of the Zimbabwe Constitution 2013. 204 Sections 133 and 134 of the Zimbabwe Constitution 2013. 205 Section 137 of the Zimbabwe Constitution 2013. 206 Section 138 of the Zimbabwe Constitution 2013. 207 Sections 138 and 140 read with section 141 of the Zimbabwe Constitution 2013. 208 Section 54 read with sections 55–59 of the Constitution of South Africa. 209 The CRSO is, inter alia, responsible for supervising the administration of parliament, formulating standing orders, and considering all parliamentary matters in Zimbabwe. Section 151(1) read with (2)–(7) of the Zimbabwe Constitution 2013. 210 Sections 139 and 141 of the Zimbabwe Constitution 2013. 211 Sections 54–59 of the Constitution of South Africa. 212 Section 142 of the Zimbabwe Constitution 2013. 213 Section 49(1) and (2) read with section 50 of the Constitution of South Africa. 214 Section 143(1) and (2) read with section 144 of the Zimbabwe Constitution 2013. 215 Section 143(3) read with (4) and (5) and section 305 of the Zimbabwe Constitution 2013. 216 Section 109(4) and (5) read with section 144 of the Zimbabwe Constitution 2013. 217 Section 89 of the Constitution of South Africa. 218 The president or vice president may be removed from office by parliament for serious violation of the Zimbabwe Constitution 2013 or other laws of Zimbabwe or serious misconduct and/or inability to perform his or her presidential functions. Section 97 of the Zimbabwe Constitution 2013. 219 Mhodi (n 2) 389–90. 220 Mhodi (n 2) 389–90. 221 Section 143(1), (2), and (3) and section 109(4) and (5) of the Zimbabwe Constitution 2013. 222 Mhodi (n 2) 389–90. 223 See Kersting (n 2) 160–65, for further related remarks. 224 Section 27(1) of the Lancaster House Constitution 1979; also, see para. 2(A)(i) above. 225 Also see related comments in para. 2(B)(i) above. See further sections 3(1)(c), (2), and 6 read with Schedule Part I(1) of section 11 of the Administrative Justice Act [ch. 10:28] 12 of 2004 which exempts the president and cabinet from facing just administrative actions when they conduct their duties in a lawful, reasonable, and procedurally fair manner. 226 Also, see related comments in para. 2(B)(i) above. 227 See related comments in para. 2(A)(i) above. 228 Also, see related comments in para. 2(B)(i) above. 229 See related comments in para. 2(A)(i) above. 230 See related comments in para. 2(A)(i) above. 231 Section 91(2) read with section 95 of the Zimbabwe Constitution 2013; also, see comments in para. 2(B)(i) above. 232 Section 30(1) of the Lancaster House Constitution 1979; also, see para. 2(A)(i) above. 233 See the relevant provisions under ch. 5. 234 See the relevant provisions under ch. 5. 235 Section 92(1), (2), (3), and (5) read with section 158. It is important to note that an executive president as opposed to a ceremonial president or prime minister was retained by the Zimbabwe Constitution 2013. 236 See the relevant provisions under chs 5, 6, and 8 of the Zimbabwe Constitution 2013; also, see para. 2(B)(i) above. 237 Section 113(7) and (8) of the Zimbabwe Constitution 2013; also, see para. 2(B)(i) above. 238 Section 97(3) of the Zimbabwe Constitution 2013; also, see related comments in para. 2(B)(i) above. 239 Section 33 read with section 32 of the Lancaster House Constitution 1979. 240 Section 116 read with sections 117 and 134; see further related comments and sections in para. 2(B)(ii) above. 241 Mhodi (n 2) 388–89; see further related comments in para. 2(B)(ii) above. 242 See paras 2(A)(ii) and 2(B)(ii) above. 243 Section 143(1) and (2) read with section 144 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 244 Section 97 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 245 Section 120 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 246 See further related comments in para. 2(B)(ii) above. 247 See related comments and sections in para. 2(A)(ii) above. 248 Sections 122 and 123 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 249 Sections 126 and 127 of the Zimbabwe Constitution 2013; see further related comments in paras 2(A)(ii) and 2(B)(ii) above. 250 See related comments in para. 2(A)(ii) above. 251 Section 152 read with sections 149, 145, 146, and 147 of the Zimbabwe Constitution 2013; see further comments in para. 2(B)(ii) above. 252 See related remarks in paras 2(A)(i) and 2(B)(i) above. 253 See related comments in paras 2(A)(i) and 2(B)(i) above. 254 See related comments in paras 2(A)(i) and 2(B)(i) above. 255 See related comments in paras 2(A)(i) and 2(B)(i) above. 256 See related comments in paras 2(A)(ii) and 2(B)(ii) above. 257 See related comments in paras 2(A)(ii) and 2(B)(ii) above. 258 See related remarks in paras 2(A)(i) and 2(B)(i) above. 259 See related remarks in paras 2(A)(i) and 2(B)(i) above. 260 See related remarks in paras 2(A)(i) and 2(B)(i) above. 261 See related comments in paras 2(A)(ii) and 2(B)(ii) above. 262 See related comments in related comments in paras 2(A)(ii) and 2(B)(ii) above. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Synoptical Analysis of the Legislature and Executive Functions Under the Zimbabwe Constitution 2013

Statute Law Review , Volume Advance Article – May 24, 2017

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Abstract

Abstract An overview analysis of the relevant provisions of the Zimbabwe Constitution Amendment Act 20 of 2013 (Zimbabwe Constitution 2013) that, inter alia, deals with the functions of the legislature and the executive is provided in this article. Put differently, this article investigates the adequacy of the aforesaid provisions in relation to their practical enforcement and the promotion of constitutional democracy in Zimbabwe. Consequently, a synoptical discussion of the selected flaws of the provisions dealing with the functions of the legislature and the executive under the Zimbabwe Constitution 2013 will be undertaken. Furthermore, a comparative analysis of these provisions and those that were provided under the Lancaster House Constitution of Zimbabwe Amendment Act 19 of 2009 (Lancaster House Constitution 1979) will be provided. This is done to examine whether the gaps and shortcomings that were associated with the relevant provisions of the Lancaster House Constitution 1979 are now corrected under the Zimbabwe Constitution 2013. Thereafter, possible recommendations and concluding remarks will be stated. 1. INTRODUCTION An overview analysis of the relevant provisions of the Zimbabwe Constitution Amendment Act 20 of 20131 that, inter alia, deals with the functions of the legislature and the executive is provided in this article. Put differently, this article investigates the adequacy of the aforesaid provisions in relation to their practical enforcement and the promotion of constitutional democracy in Zimbabwe.2 Consequently, a synoptical discussion of the selected flaws of the provisions dealing with the functions of the legislature3 and the executive4 under the Zimbabwe Constitution 2013 will be undertaken.5 In other words, the adequacy of the aforesaid provisions in relation to their consistent implementation as well as the application of the doctrine of separation of powers and the promotion of democracy in Zimbabwe will be discussed.6 Furthermore, a comparative analysis of these provisions and those that were provided under the Lancaster House Constitution of Zimbabwe7 will be provided. This is done to examine whether the gaps and shortcomings that were associated with the relevant provisions of the Lancaster House Constitution 19798 are now resolved under the Zimbabwe Constitution 2013. Lastly, possible recommendations and concluding remarks will be provided. 2. OVERVIEW OF THE FUNCTIONS OF THE LEGISLATURE AND THE EXECUTIVE (A) Functions of the Legislature and the Executive Under the Lancaster House Constitution 1979 (i) Functions of the Executive Various broad presidential powers were entrenched in the Lancaster House Constitution 1979.9 For instance, the president was the head of state and head of government.10 The president was also the commander in chief of the defence forces of Zimbabwe.11 This clearly shows that the president had exclusive executive and administrative control over the state and government. The president had special precedence over all the persons of Zimbabwe.12 Having said this, it is now important to note that the qualifications of the president are enumerated below. Persons were only qualified or eligible for election as president if they: (a) were citizens of Zimbabwe by birth or by descent; (b) have attained the age of 40 years; and (c) were ordinarily resident in Zimbabwe.13 This clearly shows that any Zimbabwean citizen who was 40 years old was eligible to contest for election as president in Zimbabwe. In other words, no educational or other professional qualifications were required before a person can qualify for election as president in Zimbabwe under the Lancaster House Constitution 1979. Moreover, apart from stating 40 years as the entry age for persons to contest for election as president, no specific age was indicated as the exit age for such persons to be ineligible to contest for election as president in Zimbabwe under the Lancaster House Constitution 1979.14 The president was directly elected by the electorate on the day or days fixed by a proclamation in terms of the Lancaster House Constitution 197915 for parliamentary and local elections.16 Additionally, the president could be jointly elected by the members of the senate and the national assembly in accordance with the relevant electoral laws within 90 days after the office of president became vacant by reason of his/her death, resignation, or removal from office in terms of the Lancaster House Constitution 1979.17 This shows that the members of the senate and national assembly could only elect a new president were the former president has died, resigned, or constitutionally removed from his/her office. The president-elect was only granted up to 48 hours to take the oath of office before the Chief Justice or other judge of the Supreme Court or the High Court.18 The tenure of office for the president was a period of five years concurrent with the life of parliament19 or a lesser period where the president had earlier dissolved the parliament in terms of the Lancaster House Constitution 1979.20 The presidential term of office was also shorter than five years where the president was elected by the members of the senate and the national assembly.21 Likewise, the tenure of office for the president could be longer than five years where the life of the parliament is extended in terms of the Lancaster House Constitution 1979.22 This suggests that the tenure of office for the president could only terminate on the expiration of the aforesaid periods. Put differently, the president was allowed to continue in office until the new president was elected and/or came into office.23 Nonetheless, there was no fixed term of office for the president and vice presidents. This was one of the main flaws of the Lancaster House Constitution 1979 because it enabled any person who had served as president to continue to run or contest in elections irrespective of his or her performance record in office as an executive president. The president was allowed to resign from his or her office by tendering a resignation letter in writing to the speaker of the national assembly.24 Moreover, the president could also be removed from his or her office where a joint report of the committee of the senate and the national assembly and more than one third of such members had requested and recommended the removal of the president due to the fact that: (a) he or she had acted in wilful violation of the Lancaster House Constitution 1979 or (b) he or she was incapable of performing the functions of his or her office because of his or her physical or mental incapacity and/or gross misconduct.25 However, the exact meaning of the terms ‘mental incapacity’, ‘physical incapacity’, and ‘gross misconduct’ was not expressly provided for in the Lancaster House Constitution 1979.26 Furthermore, the aforesaid removal of the president could only be effected through a joint resolution of not less than two thirds of the majority and affirmative votes of the members of the senate and national assembly. Accordingly, it was very difficult to remove any president from the ZANU PF because its members dominated the parliament for several years in Zimbabwe. The president had immunity for personal liability in respect of any civil or criminal offences committed while he or she was still in office.27 Nonetheless, the president could, after his or her tenure, be charged for any civil or criminal activities that he did or omitted to do before he or she became president.28 This also suggests that the law could be applied retrospectively where the president committed some offences before he or she entered the office of the president of Zimbabwe. Furthermore, after his or her tenure as president, the president was personally liable for any civil or criminal activities that he did or omitted to do while he or she was in office as the president of Zimbabwe.29 In light of this, it appears that prescription laws and other related laws were not considered in relation to the debts and other liabilities of the former president.30 Be that as it may, the author submits that these relatively broad immunity provisions could have enabled any notorious incumbent president to refuse to retire in order to avoid and/or evade his or her civil and criminal charges.31 Moreover, the Lancaster House Constitution 1979 provided for the functions of the vice presidents and an acting president.32 An acting president was allowed to perform the functions of the president when the office of the president was vacant or the incumbent president was unable to perform his or her functions due to illness and other related causes.33 However, approval from the majority of the cabinet members was required before the acting president could exercise certain presidential powers such as the power to: (a) declare war or to make peace; or (b) enter into any international convention, treaty, or agreement; or (c) dissolve or prorogue parliament34; or (d) appoint or revoke the appointment of a vice president, minister, or deputy minister; or (e) assign or reassign functions to a vice president, minister, or deputy minister, including the administration of any Act of parliament or of any ministry or department, or to cancel any such assignment of functions.35 This clearly indicates that an acting president did not have exclusive executive powers under the Lancaster House Constitution 1979 since the exercise of such powers was subject to the cabinet.36 It is also not clear whether the acting president was given the same immunity as the president, for personal liability in respect of any civil or criminal proceedings committed while he or she was in office.37 Nevertheless, both the president and acting president were entitled to a salary, allowances, pension, and other benefits that could be prescribed under an Act of parliament.38 In light of this, the incumbent presidents and former presidents were prohibited from holding any other public office directly or indirectly while they are receiving a presidential pension from the state.39 As earlier stated, the president had various executive functions which he or she could directly or indirectly exercise through the cabinet.40 For instance, the president was obliged to uphold the Constitution and other laws of Zimbabwe.41 The president was empowered through the Constitution, an Act of parliament and/or the parliament to act as the head of state with powers to: (a) appoint, accredit, receive, and recognize diplomatic agents and consular officers; (b) enter into international conventions, treaties, and agreements; (c) proclaim and to terminate martial law; (d) declare war and to make peace; and (e) confer honours and precedence.42 The president was also obliged to exercise his or her functions on the advice of the cabinet or any designated person and/or authority in terms of the Constitution and other relevant laws.43 Nevertheless, the president was not obliged to act on such advice with regard to: (a) the dissolution or prorogation of parliament; or (b) the appointment or removal of a vice president, any minister, or deputy minister and/or provincial governor.44 This implies that the president had exclusive or unilateral powers and discretion to appoint vice presidents, ministers, deputy ministers, and provincial governors.45 Put differently, cabinet ministers, vice presidents, deputy ministers, and provincial governors served at the president’s pleasure.46 Accordingly, some of the challenges associated with this approach were, inter alia, the following: (a) undeserving cabinet ministers, governors, or vice presidents could be appointed by the president not on the basis of merit but on the basis of political and/or other reasons and (b) such cabinet ministers, governors, or vice presidents could end up being puppets or unable to robustly and objectively challenge some of the decisions of the president due to fear of reprisals or being sacked from their jobs by that president.47 In this regard, the author concurs with Muna Ndulo48 who correctly argues that the Constitutions of most African countries, including Zimbabwe should expressly provide some checks and balances on the president’s powers, such as a parliamentary approval system before any ministers, governors, or vice presidents are appointed to combat biased, unconstitutional, and unmeritorious appointments. Furthermore, only the president had the prerogative to grant a pardon, respite, suspended sentence or less severe punishment to any person convicted of a criminal offence against any law indefinitely or for a specified period.49 Interestingly, this presidential prerogative to grant mercy to convicted offenders could also be exercised in respect of offences committed in countries other than Zimbabwe.50 Be that as it may, the author submits that these powers should have been exercised by the president after consultation or approval from the parliament to curb selective and/or biased application of the stated mercy provisions by the president in Zimbabwe. On the other hand, the president was only empowered to declare a public emergency after the approval from the parliament.51 Accordingly, a president could declare a public emergency when there was a situation or potential situation that could lead to a state of public emergency.52 Nonetheless, it appears that the president was constitutionally allowed to take some actions or decisions on his or her own discretion or deliberate judgment, while the parliament and the courts were prohibited from inquiring into any such actions and/or decisions.53 This flawed provision could have enabled any president to undermine the judiciary and/or make reckless or dubious decisions while aware that he or she was not going to be questioned by the parliament and the courts. The president was also allowed to make regulations which could be employed later in respect to any legislative matter in parliament.54 It is submitted that this president’s quasi-legislative authority was sometimes arbitrarily evoked in direct violation of the doctrine of separation of powers.55 Moreover, the president was empowered to form a government and/or appoint a cabinet consisting of vice presidents and ministers.56 In relation to this, the parliament could, by resolution supported by two-thirds majority of its members, pass a vote of no confidence in the Government.57 Thereafter, the president had up to 14 days to resign or dissolve parliament and/or remove vice presidents, ministers, deputy ministers, and governors from their offices.58 In a nutshell, as discussed above, the author agrees with Muna Ndulo59 that the presidential powers in most African countries, including Zimbabwe, are extensively broadened at the expense of other organs of government. In other words, role of cabinet ministers is merely advisory in nature making it very difficult for them sometimes to effectively influence the president on certain key matters of government policy. (ii) Functions of the Legislature The legislative authority in Zimbabwe was vested in the legislature which comprised the president, the parliament,60 and/or any other designated person under the Lancaster House Constitution 1979.61 This indicates that there was very little or partial separation of powers since the president was also part of the legislature. In relation to this, notwithstanding the fact that there are very few countries that have absolute separation of powers, it is submitted that the president should not have been part of legislature to prevent the executive from interfering with the legislative functions of the legislature and to promote the doctrine of separation of powers.62 A president or deputy president of the senate63 was in charge of the senate which comprised 93 senators.64 Only a few of these senators were directly elected by the electorate, while the rest were indirectly appointed by the president from governors and representatives of chiefs.65 The president of the senate could resign or vacate his or her office upon the dissolution of parliament or when he or she became president, vice president, minister, deputy minister, or a provincial governor.66 Likewise, the speaker and deputy speaker of the national assembly were in charge of the national assembly.67 The national assembly comprised 210 members who were directly elected by the electorate.68 The speaker and deputy speaker of the national assembly were elected from the persons who were or have been members of the national assembly and who were not members of the cabinet and/or ministers and deputy ministers.69 The speaker or deputy speaker of could resign or vacate his or her office upon the dissolution of parliament or when he or she became a vice president, minister, deputy minister, senator, senate president, provincial governor, or a member of the national assembly.70 A member of parliament’s seat was declared vacant upon his or her death and resignation. Such seat could also become vacant if: (a) the parliament was dissolved; (b) a member of parliament failed to attend parliamentary sessions for 21 consecutive times without the leave of the senate or the national assembly; (c) he or she ceased to be a member of the political party of which he or she was a member at the date of his or her election to parliament; (d) he or she became president; (e) he or she became speaker; (f) he or she became a provincial governor; and (g) he or she became a member of a public office or statutory body.71 Nevertheless, it is not expressly stated why the aforesaid provisions were not applicable to the attorney general.72 Despite this, any member of parliament who was imprisoned or convicted of any offence was suspended, expelled, or prohibited from exercising his or her duties in parliament.73 On the other hand, the Lancaster House Constitution 1979 empowered any affected persons to enforce their fundamental human rights, especially, their civil and political rights through the Parliamentary Legal Committee (PLC).74 The PLC was appointed by the Committee on Standing Rules and Orders (CSRO).75 Accordingly, former judges, magistrates, members of parliament, ministers, provincial governors, and other qualified legal practitioners such as advocates and attorneys who had continuously practiced in Zimbabwe for not less than five years could be appointed to the PLC.76 The PLC worked hand in hand with the legislature to examine the constitutionality of parliamentary Bills other than Constitutional Bills in Zimbabwe. The PLC had various functions such as reporting its opinions to the senate or the national assembly and examining: (a) Bills and amended Bills other than Constitutional Bills; (b) any draft Bill transmitted by a minister to the clerk of parliament for reference to the PLC; (c) any statutory instrument published in the government gazette; and (d) any draft statutory instrument transmitted by other relevant authorities to the clerk of parliament for reference to the PLC.77 The PLC was empowered to report to the legislature on any Bill that violated the fundamental rights that were enshrined in the Declaration of Rights. Despite this, the author argues that the independence of the PLC was somewhat compromised since some of its members were sometimes appointed for political-related reasons.78 The legislature had the powers to make and pass all the relevant legislation in Zimbabwe.79 However, such powers were only exercised by the legislature in respect of any Bills that were passed by the national assembly as well as the senate and later assented to by the president.80 It appears that the president had discretion to either assent or withhold his or her assent to any Bill in terms of the Lancaster House Constitution 1979.81 This provision could have enabled any unscrupulous president the power to unjustifiably reject any Bill that he or she did not like for his or her own selfish political reasons. Perhaps, in this regard, it could have been better to have a provision that expressly obliged the president to assent to a Bill whenever it was passed by parliament. The legislature had further powers to amend the Constitution and to enrol with the office of the Registrar of the High Court, any Acts of parliament that were assented to by the president.82 The quorum for voting in relation to any dispute or objection of any matter in the senate was not less than eleven senators present apart from the senate president.83 On the other hand, the quorum for voting in relation to any dispute or objection of any matter in the national assembly was not less than 25 members present apart from the speaker.84 In relation to this, all decisions in relation to any matter at any session of the senate or the national assembly were determined by a majority of the votes of the members present.85 Moreover, the senate and the national assembly were jointly empowered to make standing orders in relation to: (a) the passing of Bills; (b) the presiding in the senate or the national assembly; (c) any matter in connection with which standing orders are required to be made in terms of the Constitution; and (d) the regulation and orderly conduct of other relevant proceedings in both the senate and the national assembly.86 Notwithstanding this, members of the executive such as the president, vice presidents, ministers, deputy ministers, and provincial governors had the right to sit and speak in parliament.87 In light of this, the president was not allowed to vote in parliament, while the vice presidents, ministers, deputy ministers, and provincial governors were entitled to vote in any house where they were members.88 This approach of granting members of the executive the right to sit and speak in parliament was probably aimed at promoting accountability. Nevertheless, the author submits that the same approach could also have enabled an incumbent president to easily influence the parliament to adopt any of his or her regulations and/or legislative instruments made in terms of the Presidential Powers Act.89 Moreover, this could have been worsened by the fact that the president was directly elected by the electorate and he or she required no parliamentary approval before entering office. Thus, unlike the position in South Africa where the president requires the continued approval of the legislature, the president in Zimbabwe appears to have been more powerful than the parliament itself.90 (B) Functions of the Legislature and the Executive Under the Zimbabwe Constitution 2013 (i) Functions of the Executive Like position under Lancaster House Constitution 1979,91 relatively broad presidential powers are expressly provided in the Zimbabwe Constitution 2013.92 However, under the Zimbabwe Constitution 2013, the executive authority is now expressly derived from general people of Zimbabwe and vested in the president.93 Furthermore, the president is the head of state and government as well as the commander in chief of the defence forces of Zimbabwe.94 Put differently, the president has powers to appoint all senior state officials such as cabinet ministers, the Commissioner General of Police, the Commissioner General of the Prisons and Correctional Services, the Director General of Intelligence Services, military commanders, and judges.95 The Zimbabwe Constitution of 2013 abolished the prime ministerial office from the executive. Consequently, the president is empowered to: (a) unilaterally dissolve parliament; (b) make peace or declare war; and (c) assent to or reject legislative Bills.96 As indicated above, the president still has some influence over the state, government, and other related spheres such as the legislature and the judiciary. In relation to this, it is provided that the president should exercise his or her executive authority through the cabinet in accordance with the Zimbabwe Constitution 2013.97 Nonetheless, it remains to be seen whether the president will comply with this provision in order to effectively execute all his or her duties in accordance with the Zimbabwe Constitution 2013. Given this background, it is now plausible to briefly discuss the current qualifications of the president in Zimbabwe. Like the former position under the Lancaster House Constitution 1979,98 any person is qualified or eligible for election as president if he or she: (a) is a citizen of Zimbabwe by birth or by descent; (b) has attained the age of 40 years; (c) is ordinarily resident in Zimbabwe; and (d) is registered as a voter.99 Seemingly, apart from the general qualification criterion stated above, there are no educational or other professional qualifications that are required before a person can qualify for election as president in Zimbabwe under the Zimbabwe Constitution 2013. It appears that this approach was directly borrowed from the Lancaster House Constitution 1979.100 Furthermore, like previous position under the Lancaster House Constitution 1979,101 it is only expressly indicated that 40 years is the entry age for any person who want to contest for election as president under the Zimbabwe Constitution 2013.102 Put differently, no specific exit age is expressly indicated for such person to be disqualified from contesting for election as president in Zimbabwe under the Zimbabwe Constitution 2013.103 However, it is encouraging to note that any person who has already held office as president under the Zimbabwe Constitution 2013 for two terms is now disqualified to contest for election as president or vice president.104 This introduction of a fixed term of office for the president and vice president could, if consistently enforced, eradicate tyranny and dictatorship in Zimbabwe. Like the previous position under the Lancaster House Constitution 1979,105 the president is directly elected by the electorate on the day or days scheduled for parliamentary and local elections in terms of the Zimbabwe Constitution 2013.106 Interestingly, both the presidents and vice presidents are now expressly required to be directly elected by the electorate under the Zimbabwe Constitution 2013.107 Moreover, it is now required that every candidate running for president must nominate two persons to stand for election jointly with him or her as vice presidents.108 It is further stated that every candidate running for president must designate one of the vice presidents as his or her candidate for first vice president and the other as his or her candidate for second vice president.109 While this style of presidential elections could enable the electorate to knowingly participate and choose their own preferred vice president, the author submits that the president could still indirectly remove the vice president from office by cancelling his or her assignments and duties indefinitely or by simply appointing a new vice president for political reasons.110 In this regard, the removal of Joyce Mujuru from the office of the vice president is a case in point. The president has a number of duties which, inter alia, include: (a) upholding, defending, and respecting the Constitution as the supreme law of the nation; (b) ensuring that the Constitution and all the laws of Zimbabwe are consistently observed; (c) promoting unity and peace in the nation of Zimbabwe; (d) recognizing and respecting the ideals and values of the liberation struggle; (e) ensuring the protection of the fundamental human rights and freedoms; (f) ensuring the protection of the rule of law; and (g) respecting the diversity of the people and communities of Zimbabwe.111 However, given the history of human rights violations in Zimbabwe,112 it remains to be seen whether the incumbent president will uphold the supremacy of the constitution and the rule of law to protect the fundamental human rights of all the people of Zimbabwe. Moreover, given the history of political, socio-economic, and tribal conflicts in Zimbabwe,113 it remains questionable whether the incumbent president will un-discriminatorily promote the diversity of all the people and communities of Zimbabwe. Furthermore, the president is empowered by the Constitution to: (a) assent to and/or sign Bills; (b) refer a Bill to the Constitutional Court for an opinion or advice on its constitutionality; (c) summon the national assembly, the senate, or parliament to an extraordinary sitting to conduct special business; (d) make the relevant appointments in terms of the Constitution or legislation; (e) call elections and referendums in terms of the Constitution and the relevant laws; (f) deploy the defence forces and to confer honours and awards; (g) appoint ambassadors, plenipotentiaries, diplomatic, and consular representatives; and (h) receive and recognize foreign diplomatic and consular representatives from other countries.114 The president is obliged to exercise the aforesaid powers in accordance with the Zimbabwe Constitution 2013 and the cabinet.115 Likewise, the cabinet may, subject to the Zimbabwe Constitution 2013, have the powers to: (a) direct the operations of government and conduct government business in parliament; (b) prepare, initiate, and implement national legislation; and (c) develop and implement national policy; and (d) advise the president on all relevant matters.116 Moreover, the president is empowered to form a government and/or appoint a cabinet consisting of vice presidents and ministers.117 In relation to this, it must be noted that the cabinet consists of the president, the vice presidents, and ministers.118 It appears that only the president has the power to appoint or remove the attorney general, ministers, and deputy ministers under the Zimbabwe Constitution 2013.119 In other words, vice presidents, ministers, and deputy ministers are accountable to the incumbent president.120 It is submitted, notwithstanding the fact that the parliament has the power to pass a vote of no confidence in the government, that the vice presidents, ministers, and deputy ministers should be consistently accountable to both the president and the parliament in accordance with the Constitution.121 It is further submitted that the president should appoint or remove ministers and deputy ministers after due consultation with the parliament in accordance with the Constitution. In addition, the president has the powers to declare war or make peace while the parliament has the powers to revoke such declaration, especially, when it is arbitrarily made.122 The president also has the prerogative to grant a pardon, respite, suspended sentence, or less severe punishment to any person convicted of a criminal offence against any law indefinitely or for a specified period.123 As was position under the Lancaster House Constitution 1979,124 this presidential prerogative to grant mercy to convicted offenders can also be exercised in respect of offences committed in countries other than Zimbabwe.125 Moreover, the president is empowered to declare a public emergency after the approval from the parliament.126 Nonetheless, unlike the previous position under the Lancaster House Constitution 1979,127 the examples of and/or instances where the president can declare a public emergency are not expressly enumerated under the Zimbabwe Constitution 2013.128 It is, however, important to note that any aggrieved person is now empowered to approach the Constitutional Court in order to determine the validity of and/or consequences of any declared state of public emergency.129 This occurs where (i) the declaration of a state of public emergency is not approved by parliament or such declaration is not considered by parliament within the stipulated period and (ii) a resolution passed by a majority of the members present at a joint sitting of the parliament resolves that such declaration must be extended or revoked. Notwithstanding this positive development, the author submits that all the aforesaid powers should be exercised by the president after consultation or approval from both the cabinet and the parliament in order to combat any possible biased enforcement of such powers and/or prerogatives in Zimbabwe.130 On the other hand, an acting president is allowed to perform the functions of the president when the office of the president becomes vacant or the incumbent president is unable to perform his or her functions due to illness and other related causes.131 Unlike the former position under the Lancaster House Constitution 1979,132 it is now expressly stated that the first vice president must be appointed as an acting president whenever the president is incapacitated or absent.133 Likewise, where the first vice president is incapacitated or absent, the second vice president must be appointed to be an acting president.134 Similarly, where both vice presidents are absent or incapacitated, a designated minister must be appointed by the president or the cabinet as an acting president.135 Nevertheless, like the former position under the Lancaster House Constitution 1979,136 an acting president needs approval from the majority of the cabinet members before he or she can exercise certain presidential powers such as the power to: (a) deploy the defence forces; or (b) enter into any international convention, treaty, or agreement; or (c) appoint or revoke the appointment of a vice president, minister, or deputy minister; or (d) assign or reassign functions to a vice president, minister, or deputy minister, including the administration of any Act of parliament or of any ministry or department, or to cancel any such assignment of functions.137 In light of this, it appears that the acting president is still not granted exclusive executive authority in relation to certain presidential powers in terms of the Zimbabwe Constitution 2013.138 In other words, the acting president needs approval of the cabinet before he or she could perform most of the presidential powers indicated above.139 Furthermore, it is not expressly provided whether the acting president is empowered to dissolve or prorogue parliament with or without approval from the majority of the cabinet members.140 Notably, in practice, any of the vice presidents is usually appointed as an acting president in Zimbabwe. Put differently, the vice presidents are constitutionally obliged to assist the president in the discharge of his or her functions.141 The incumbent president continues in office until the assumption of office by the president-elect.142 In this regard, it should be noted that both the president and vice presidents assume office when they take an oath of office before the Chief Justice or any other senior judge.143 Furthermore, any vice president who becomes president on the death, resignation, or removal from office of the president assumes office as soon as possible or within 48 hours after the office of the president became vacant.144 As earlier stated, term of office for the president and vice presidents is five years, and it commences on the day when they are sworn in.145 The president is allowed to resign from his or her office by tendering a resignation letter in writing to the speaker of the national assembly.146 Furthermore, the president or vice president can be removed from his or her office when a joint report of the committee of the senate and the national assembly and more than one half of such members has requested and recommended his or her removal from office for: (a) serious misconduct; or (b) wilful violation of the Zimbabwe Constitution 2013; or (c) failure to obey, uphold or defend the Zimbabwe Constitution 2013; and (d) inability to perform the functions of his or her office due to his or her physical or mental incapacity.147 In this regard, the joint senate and national assembly resolution to remove the president or vice president must be supported by at least two thirds of their total membership.148 It is now expressly provided that first vice president assumes office of president when the incumbent president has died, resigned, or been removed from office until the expiry of the former president’s term of office.149 Accordingly, the second vice president assumes office as the first vice president until the expiry of the former president’s term of office.150 This is a positive development which provides certainty on political succession and transition matters in the event of death, resignation, or incapacity of the president or vice president in Zimbabwe. Notably, any aggrieved presidential candidate is now allowed to challenge the validity of the election of a president or vice president by lodging a petition with the Constitutional Court.151 Like the former position under the Lancaster House Constitution 1979,152 the president has relatively broad immunity for personal liability in respect of any civil or criminal offences committed while he or she is still in office.153 The former president could, however, be charged for any civil or criminal activities that he did or omitted to do before he or she became president.154 This could indicate that the law will be applied retrospectively where the former president committed some offences before he or she entered the office of the president of Zimbabwe. Moreover, the former president could be personally charged for any civil or criminal activities that he did or omitted to do while he or she was in office as the president of Zimbabwe.155 In this regard, it is stated that the running of prescription in relation to any debts or liabilities of the president which occurred before or during his or her term of office are suspended whenever he or she remains in office.156 However, it is not clearly provided whether the vice presidents are also given the same immunity that is accorded to the incumbent president. Over and above, the author submits that both the president and vice presidents must be personally charged for their civil and criminal offences whenever such offences are committed, regardless of whether they are still in office or not to encourage more accountability. It is important to note that both the president and vice presidents are entitled to a salary, allowances, pension, and other benefits that could be prescribed under an Act of parliament.157 Consequently, the incumbent president and vice presidents as well as the former president and former vice presidents are prohibited from holding any other public office directly or indirectly while they are receiving a presidential pension from the state.158 This probably aimed at combating corruption, double dipping, and conflict of interests. Be that as it may, the author submits that the president is still enjoying excessive unilateral executive powers which could be arbitrarily employed against other people by any incumbent president. (ii) Functions of the Legislature Like the former position under the Lancaster House Constitution 1979,159 the legislative authority in Zimbabwe is vested in the legislature which comprises the president, the parliament, and/or any other delegated body or authority stipulated in terms of the Zimbabwe Constitution 2013.160 On the other hand, a different approach is employed in South Africa where the legislative authority is exclusively vested in the parliament.161 In this regard, as earlier stated,162 the mere fact that the president is also part of the legislature could indicate that the Zimbabwe Constitution 2013 does not adequately provide for the doctrine of separation of powers. Accordingly, the author concurs with Mhodi163 that the aforesaid provision164 that allows the president to be part of the legislature could end up being arbitrarily employed by the president to introduce draconian laws and regulations through the Presidential Powers Act, for adoption in parliament. In other words, the executive president still has some legislative authority which could directly or indirectly undermine or negatively interfere with the legislative authority of the parliament.165 The legislature has the authority to, inter alia: (a) amend the Zimbabwe Constitution 2013 in accordance with section 328 of the same Constitution; (b) make laws for the peace, order, and good governance of Zimbabwe; and (c) confer subordinate legislative powers upon another body or authority in accordance with section 134 of the Zimbabwe Constitution 2013.166 Thus, unlike the position under the Constitution of South Africa where the legislative authority is exclusively vested in the parliament consisting of the national assembly and the national council of provinces,167 the executive president of Zimbabwe also has legislative authority under the Zimbabwe Constitution 2013.168 Put differently, in contrast to the South African position where the parliament comprises the national assembly and the national council of provinces,169 the Zimbabwean parliament consists of the senate and the national assembly and it has various functions such as: (a) protecting the Zimbabwe Constitution 2013; (b) promoting democratic governance in Zimbabwe; (c) ensuring that the provisions of the Zimbabwe Constitution 2013 are upheld in the national interest by all the state institutions and agencies of government at every level; and (d) ensuring that all the institutions and agencies of the state and/or government are accountable to the parliament.170 Notably, relatively few senators out of the total number of 80 senators in senate are directly elected by the electorate through the proportional representation system,171 while the rest are indirectly appointed by the national assembly and the president from the candidates representing political parties in each province as well as representatives of chiefs respectively.172 Any person who is 40 years old or holds the office of chief and/or registered as a voter is qualified for election as a senator.173 However, such person is disqualified from election as a senator if he or she is already a member of parliament or convicted of an offence within five years before the election and/or disqualified to register as a voter.174 The president and deputy president of the senate are in charge of the senate, and they both act as presiding officers in the senate.175 Moreover, both the president and deputy president of the senate are entitled to resign or vacate their offices when the parliament is dissolved after general elections or when they become president, vice president, minister or deputy minister, or the speaker of the national assembly or when the deputy president of the senate cease to be a senator.176 Similarly, the speaker and deputy speaker of the national assembly are in charge of the national assembly, and they both act as presiding officers in the national assembly.177 The speaker and deputy speaker are elected from the persons who are or have been members of the national assembly and who are not members of the cabinet and/or ministers and deputy ministers.178 Both the speaker and deputy speaker of the national assembly are allowed to resign or vacate their offices when the parliament is dissolved after general elections or when they become president, vice president, minister or deputy minister, or president of the senate or when they cease to be members of the national assembly.179 As was the position under the Lancaster House Constitution 1979,180 the national assembly is consists of 210 members who are directly elected by the electorate.181 An additional 60 women are also elected as members of the national assembly from all the provincial constituencies under a party-list system of proportional representation.182 Thus, unlike the South African national assembly which comprises up to 400 members who are directly elected by the voters,183 the Zimbabwean national assembly is made up of not more than 270 elected members.184 Any person who is registered as a voter and who has attained 21 years of age is eligible for election as a member of the national assembly.185 Nonetheless, such person is disqualified for election as a member of the national assembly if he or she is already a member of parliament or convicted of an offence within five years before the election and/or disqualified to register as a voter.186 Furthermore, like the former position under the Lancaster House Constitution 1979,187 a member of parliament’s seat becomes vacant upon his or her death and resignation.188 A member of parliament’s seat also becomes vacant if: (a) the parliament is dissolved; (b) a member of parliament failed to attend parliamentary sessions for 21 consecutive times without the leave of the senate or the national assembly; (c) at least one half of the total membership of the national assembly resolves by a vote that the seat should become vacant; (d) he or she becomes the president or vice president; (e) he or she becomes the speaker of the national assembly or the president of the senate; (f) he or she ceases to be qualified for registration as a voter or has been declared insolvent under the relevant laws in Zimbabwe without being rehabilitated or discharged; (g) he or she is certified to be mentally disordered and/or intellectually handicapped under any law in force in Zimbabwe; (h) he or she is convicted of an offence under the Electoral Laws of Zimbabwe; (i) he or she ceased to be a member of the political party of which he or she was a member at the date of his or her election to parliament; and (j) he or she becomes a member of a public office or government-controlled entity or statutory body.189 The grounds stated above were similarly provided under the Lancaster House Constitution 1979.190 Similar grounds are also considered to determine the tenure of seats for members of the national assembly in South Africa.191 Moreover, like the former position under the Lancaster House Constitution 1979,192 the Zimbabwe Constitution 2013 allows any affected persons to petition the parliament and/or enforce their fundamental human rights through the PLC.193 The PLC is appointed by the CSRO consisting of members of parliament who are not ministers or deputy ministers and other persons who are qualified to practise as legal practitioners in Zimbabwe.194 Unlike the former position under the Lancaster House Constitution 1979,195 it appears that there is no specific practise time limit required before the legal practitioners are appointed to the PLC under the Zimbabwe Constitution 2013.196 The PLC is a constitutional watchdog of the parliament which is empowered to report its opinions to the senate and the national assembly as well as to examine: (a) the constitutionality of Bills and amended Bills other than Constitutional Bills; (b) any draft Bill transmitted by a minister to the clerk of parliament for reference to the PLC; (c) any statutory instrument published in the government gazette; and (d) any draft Bill or statutory instrument referred to the PLC by the vice president or the relevant minister or any other relevant authority.197 Be that as it may, the author argues that the independence of the PLC could be negatively affected since it is obliged report to the vice president, the minister, and any other relevant authority before making or finalizing its recommendations.198 Furthermore, the legislature has the powers to make, pass, or reject all the relevant legislation in Zimbabwe.199 These powers are only exercised by the legislature in respect of any Bills that are passed by both the national assembly.200 A similar position is followed in South Africa.201 Moreover, like the previous position under the Lancaster House Constitution 1979,202 the president has discretion to either assent or withhold his or her assent to any Bill under the Zimbabwe Constitution 2013.203 It is submitted that this discretion could give rise to unfair rejection of some Bills by the incumbent president for his or her personal and other political reasons. The parliament is further empowered to delegate its power to make statutory instruments in respect of subsidiary legislation to the relevant persons and to enrol with the office of the Registrar of the High Court, any Acts of parliament that have been assented to by the president.204 The Zimbabwe Constitution 2013 does not provide a specific quorum for voting in relation to any dispute or objection of any matter in the parliament.205 However, all decisions in relation to any matter at any session of either the senate or the national assembly are determined by a majority of the votes of the members present.206 Despite this, members of the executive such as the president, vice presidents, ministers, deputy ministers, and members of the PLC have the right to sit and speak in parliament without voting.207 This could be targeted at promoting transparency and discouraging members of the executive from engaging themselves in illicit activities such as corruption. A similar approach is followed in South Africa.208 The parliament is also obliged to promote public access to parliamentary proceedings and to appoint the CSRO209 which regulates the senate and the national assembly by making standing orders in relation to: (a) the passing of Bills; (b) the delegation, appointment, and functions of the relevant committees; (c) code of conduct for members of parliament and the questioning of ministers and deputy ministers by members of parliament; (d) the powers, privileges, and immunities of members of parliament; and (e) the orderly conduct of other relevant proceedings in both the senate and the national assembly.210 A related approach is also followed in South Africa.211 Furthermore, the suspension or voting by a person not entitled to do so in parliament and/or a vacancy in the membership of the parliament does not stop or invalidate parliamentary proceedings.212 Like the position in South Africa,213 the parliamentary term of office in Zimbabwe is five years and the president may dissolve the parliament if at least two thirds of the total membership of the parliament has passed a resolution to dissolve the parliament.214 Moreover, the president may, subject to a constitutional review, dissolve parliament if the national assembly has unreasonably refused to pass an Appropriation Bill.215 The president may also dissolve parliament following a vote of no confidence in the government.216 Additionally, like the status quo in South Africa where the national assembly may remove the president through a resolution supported by at least two thirds of its members,217 the Zimbabwean parliament may remove the president or vice president through a resolution passed by at least one half of the total membership of the parliament.218 Be that as it may, the Zimbabwe Constitution 2013 does not expressly provide for the removal of the president or vice president by the parliament through a vote of no confidence.219 In relation to this, the author concurs with Mhodi220 who argues that the removal of the president or vice president through a parliamentary vote of no confidence was probably not provided for under the Zimbabwe Constitution 2013 because the president and vice president are directly elected by the electorate for a fixed period. Accordingly, the author submits that the parliament should have been empowered to remove the president or vice president the same way the president is authorized to remove or dissolve the parliament.221 This could have discouraged the vice president or president from circumventing his or her possible impeachment from office through the parliament by dissolving the parliament before such impeachment.222 Perhaps, in this regard, following the position in Botswana, Mauritius, and South Africa where members of the executive require the continued approval of the legislature to remain in office could have enabled the parliament to ensure accountability of such members in Zimbabwe.223 (C) Evaluation and Analysis of the Functions of the Legislature and the Executive Under the Zimbabwe Constitution 2013 With regard to the functions of the executive, like the former position under the Lancaster House Constitution 1979,224 the president has executive and administrative control over the state and government under the Zimbabwe Constitution 2013.225 However, apart stating that any 40-year-old Zimbabwean citizen is eligible to contest for election as president in Zimbabwe, no educational or other professional qualifications are required before such person can qualify for election as president under the Zimbabwe Constitution 2013.226 This gap was also found in the Lancaster House Constitution 1979.227 Moreover, apart from stating 40 years as the eligible age for persons to contest for election as president, no specific age is stipulated as the exit age for such persons to be ineligible to contest for election as president under the Zimbabwe Constitution 2013.228 This position was directly imported from the Lancaster House Constitution 1979229 and has remained unresolved under the Zimbabwe Constitution 2013. Nonetheless, it is also not a requirement that a person must have certain professional qualifications before he or she is eligible for election as president under the Constitution of South Africa. Furthermore, unlike the former position under the Lancaster House Constitution 1979,230 the term of office for the president and vice presidents is now fixed to two terms under the Zimbabwe Constitution 2013.231 It is hoped that the introduction of a fixed term of office for the president and vice president will be consistently enforced to eradicate tyranny and dictatorship in Zimbabwe. Like the former position under Lancaster House Constitution 1979,232 the president has immunity for personal liability in respect of any civil or criminal offences committed while he or she is still in office under the Zimbabwe Constitution 2013.233 This is arguably one of the main flaws of the Zimbabwe Constitution 2013. On the other hand, no such flaw is found in the Constitution of South Africa.234 Both the president and vice presidents are now expressly required to be directly elected by the electorate under the Zimbabwe Constitution 2013.235 Moreover, the president has powers to appoint all senior state officials such as cabinet ministers, the Commissioner General of Police, the Commissioner General of the Prisons and Correctional Services, the Director General of Intelligence Services, military commanders, and judges.236 However, any aggrieved person can now approach the Constitutional Court in order to determine the validity of any executive actions of the president and/or consequences of any declared state of public emergency.237 Furthermore, the president or vice president can be removed by a joint senate and national assembly resolution that is supported by at least two thirds of their total membership.238 Like the former position under the Lancaster House Constitution 1979,239 the legislative authority is vested in the Zimbabwean legislature which comprises the president, the parliament, and/or any other delegated body or authority under the Zimbabwe Constitution 2013.240 This suggests that the executive president still has some legislative authority which could negatively influence and/or interfere with the legislative functions of the parliament.241 As stated earlier,242 the parliamentary term of office in Zimbabwe is five years, and the president may dissolve the parliament if at least two thirds of the total membership of the parliament has passed a resolution to dissolve the parliament.243 However, given the existing economic and political challenges in Zimbabwe, it remains to be seen whether the president will not arbitrarily interfere with the provisions on the dissolution of the parliament. Be that as it may, it is encouraging to note that the Zimbabwean parliament may remove the president or vice president through a resolution passed by at least one half of its total membership.244 In relation to this, it is important to note that very few senators are directly elected by the electorate since most the senators are indirectly appointed by the national assembly and the president from the candidates representing political parties in each province as well as representatives of chiefs, respectively.245 Moreover, the parliament is not empowered to remove the president or vice president through a parliamentary vote of no confidence.246 Like the former position under the Lancaster House 1979,247 the president and deputy president of the senate are in charge of the senate and they both act as presiding officers in the senate.248 In the same vein, the speaker and deputy speaker of the national assembly are in charge of the national assembly, and they both act as presiding officers in the national assembly.249 It is interesting to note that the speaker and deputy speaker of the national assembly as well as the president and deputy president of the senate are allowed to resign or vacate their offices when the parliament is dissolved after general elections or when they become president, vice president, minister or deputy minister, or president of the senate or when they cease to be members of the national assembly. This could further imply that members of the executive are not constitutionally empowered to interfere with the functions of the parliament. On the other hand, like the former status quo under the Lancaster House Constitution 1979,250 the Zimbabwe Constitution 2013 empowers affected persons to petition the parliament and/or enforce their fundamental human rights through the PLC.251 This could enable all affected persons to directly or indirectly enforce their fundamental human rights through the courts or the PLC, respectively. 3. RECOMMENDATIONS The author submits that the relatively broad immunity provisions in the Zimbabwe Constitution 2013 should be streamlined to discourage some unscrupulous presidents from refusing to leave office after the expiry of their terms in an attempt to evade civil and criminal charges.252 It is also recommended that both the president and vice presidents should be personally charged for their civil and criminal offences whenever such offences are committed to encourage more accountability.253 It is also suggested that the Zimbabwe Constitution 2013 should be amended to provide for a specific exit age for any prospective or incumbent president to be disqualified from contesting for election as president in Zimbabwe after he or she has reached that age.254 The Zimbabwe Constitution 2013 should also be amended to enact provisions that oblige any prospective presidential candidate to have the relevant educational and/or other professional qualifications be he or she can be eligible for election as president in Zimbabwe. It is further suggested that the president should exercise all his or her executive powers after consultation with both the cabinet and the parliament to prevent any possible biased enforcement of such powers and/or prerogatives.255 It is further recommended that the Zimbabwe Constitution 2013 should be amended to enact a provision that exclusively vest the legislative authority in the parliament of Zimbabwe. If enacted, this provision could enhance the functions of the parliament by combating undue political interference from the executive. The Zimbabwe Constitution 2013 should also be reviewed to expressly provide for the removal of the president or vice president by the parliament through a vote of no confidence.256 It is further suggested that the parliament should be empowered to remove the president or vice president the same way the president is authorized to remove or dissolve the parliament.257 4. CONCLUDING REMARKS As stated earlier,258 various requirements need to be satisfied before a person can be eligible for election as president in Zimbabwe. Furthermore, a president may now only be elected for two terms in office. However, the president still enjoys relatively broad immunity from personal liability for civil and criminal offences committed while he or she is in office.259 Over and above, given the history of human rights violations in Zimbabwe, it remains to be seen whether the incumbent president will uphold the supremacy of the constitution and the rule of law to protect the fundamental human rights of all the people of Zimbabwe.260 Moreover, unlike the status quo in South Africa where the legislative authority is exclusively vested in the parliament, such authority is controversially vested in both the executive president and the parliament of Zimbabwe.261 This flawed approach could enable the president to indirectly usurp parliament powers by evoking the Presidential Powers Act in order to introduce draconian laws.262 Given this background, it is hoped that the recommendations as outlined in this article will be utilized by the relevant persons to entrench constitutional democracy and improve the protection of fundamental human rights in Zimbabwe. 1 Hereinafter referred to as the Zimbabwe Constitution 2013. 2 See N Kersting (ed) Constitution in Transition: Academic Inputs for a New Constitution in Zimbabwe (Friedrich-Ebert-Stiftung Harare 2009) 7–309; PT Mhodi ‘An Analysis of the Doctrine of Constitutionalism in the Zimbabwean Constitution of 2013’ [2013] SAPL 28, 383 at 384–97; G Manyatera and CM Fombad ‘An Assessment of the Judicial Service Commission in Zimbabwe’s New Constitution’ [2014] CILSA 47, 89 at 90–108; and L Chiduza ‘Towards the Protection of Human Rights: Do the New Zimbabwean Constitutional Provisions on Judicial Independence Suffice?’ [2014] PER J 17, 368 at 369–409. 3 See the relevant provisions under ch. 6 of the Zimbabwe Constitution 2013. 4 See the relevant provisions under ch. 5 of the Zimbabwe Constitution 2013. Nonetheless, this article is mainly focussed on the executive functions of the president and deputy presidents. Consequently, a detailed discussion of the functions of cabinet ministers and their deputies is beyond the scope of this article. 5 F Gwenhamo, JW Fedderke and R de Kadt ‘Measuring Institutions: Indicators of Political Rights, Property Rights and Political Instability in Zimbabwe’ [2012] J Peace Res 49, 593 at 594–601 and A de Bourbon ‘Human Rights Litigation in Zimbabwe: Past, Present and Future’ [2003] Afr Hum Rights L J 3, 195 at 196–221; JA Mavedzenge and DJ Coltart A Constitutional Law Guide Towards Understanding Zimbabwe’s Fundamental Socio-economic and Cultural Human Rights (2014) 5–57, available at https://constitutionallythinking.files.wordpress.com/2014/10/a-constitutional-law-guide-towards-understanding-zimbabwes-fundamental-socio-economic-and-cultural-human-rights.pdf (accessed 26 August 2015). 6 Manyatera and Fombad (n 2) 90–108; Mhodi (n 2) 384–97. 7 (SI 1979/1600) as amended by Act 1 of 2009 which introduced amendment 19 of 2009, hereinafter referred to as the Lancaster House Constitution 1979. See relevant provisions under chs IV and V of the Lancaster House Constitution 1979. This amendment was, inter alia, aimed at establishing the executive functions of the president, prime minister, deputy prime ministers, and other ministers under the Government of National Unity (GNU) between the Zimbabwe African National Union Patriotic Front (ZANU PF) and the two Movement for Democratic Change (MDC) formations. In relation to this, it must be noted that the Lancaster House Constitution 1979 was a transitional or ceasefire document that was concluded between the white minority government and the leaders of the liberation struggle in Lancaster, United Kingdom. Thereafter, it was amended a record 19 times by the ZANU PF led government. On the other hand, the Zimbabwe Constitution 2013 is a relatively home-grown Constitution that replaced the Lancaster House Constitution 1979 and all its amendments to pave way for general elections in 2013. 8 Kersting (n 2) 7–309; Gwenhamo, Fedderke, and de Kadt (n 5) 594–601; and de Bourbon (n 5) 196–221. 9 See the relevant provisions under ch. IV. 10 Section 27(1) of the Lancaster House Constitution 1979. 11 Section 27(1) of the Lancaster House Constitution 1979. 12 Section 27(2) of the Lancaster House Constitution 1979. 13 Section 28(1) of the Lancaster House Constitution 1979. 14 Section 28(1)(b) of the Lancaster House Constitution 1979. 15 Section 58(1). 16 Section 28(2) and (3)(a) of the Lancaster House Constitution 1979. 17 Section 28(3)(b) of the Lancaster House Constitution 1979. 18 Section 28(5) of the Lancaster House Constitution 1979. 19 Section 63(4) of the Lancaster House Constitution 1979. 20 Section 63(2) read with section 28(3)(b) of the Lancaster House Constitution 1979. 21 Section 28(3)(b) read with section 29(1)(b) of the Lancaster House Constitution 1979. Notably, the bicameral parliament system existed between 1980 and 1989 and was reintroduced in November 2005. In practice, the party that won most seats in parliamentary (senate and national assembly) elections usually dominates and controls the law making process in Zimbabwe. Currently, the functions of the senate are envisaged in sections 120 and 130 of the Zimbabwe Constitution 2013. 22 Section 63(4) and (5) read with section 29(1)(b) of the Lancaster House Constitution 1979. 23 Section 29(1)(b) of the Lancaster House Constitution 1979. 24 Section 29(2) of the Lancaster House Constitution 1979. 25 Section 29(3) of the Lancaster House Constitution 1979. 26 Section 29(3). 27 Section 30(1) of the Lancaster House Constitution 1979. 28 Section 30(2)(a) of the Lancaster House Constitution 1979. 29 Section 30(2)(b) of the Lancaster House Constitution 1979. 30 Section 30(2)(b) of the Lancaster House Constitution 1979. 31 C Masekesa ‘Should He Stay or Should He Go? The Mugabe Question’ Zimbabwe Situation (8 January 2014), http://www.zimbabwesituation.com/news/zimsit_should-he-stay-or-should-he-go-the-mugabe-question/ (accessed 17 September 2015). 32 Sections 31 and 31C of the Lancaster House Constitution 1979. 33 In relation to this, a vice president or a designated minister (in cases where the vice president is incapacitated or absent) could be appointed as an acting president in terms of section 31(1) of the Lancaster House Constitution 1979. 34 This provision was subject to section 51 of the Lancaster House Constitution 1979. 35 Section 31(2) of the Lancaster House Constitution 1979. 36 Section 31(2) of the Lancaster House Constitution 1979. 37 Section 30 of the Lancaster House Constitution 1979. 38 Section 31A of the Lancaster House Constitution 1979. 39 Section 31B of the Lancaster House Constitution 1979. 40 Section 31H(1) of the Lancaster House Constitution 1979. 41 Section 31H(2) of the Lancaster House Constitution 1979. 42 Section 31H(3) and (4) of the Lancaster House Constitution 1979. 43 Section 31H(5) of the Lancaster House Constitution 1979. 44 Section 31H(5) of the Lancaster House Constitution 1979. 45 Section 31H(5) read with sections 31C, 31D, and 31E of the Lancaster House Constitution 1979; see further Kersting (n 2) 216–18. 46 In other words, ministers, vice presidents, deputy ministers, and provincial governors could be removed by the president at any time or resign upon the assumption of office of a new president. Additionally, no person could be appointed as vice president, minister, deputy minister, or governor for more than three months unless he or she was a member of parliament. Section 31E read with sections 31C and 31D of the Lancaster House Constitution 1979; also, see Kersting (n 2) 216–24, for further related remarks. 47 Kersting (n 2) 216–24. 48 Kersting (n 2) 218–19. 49 Section 31I(1) of the Lancaster House Constitution 1979. 50 Section 31I(2) of the Lancaster House Constitution 1979. 51 Section 31J(2) read with subsections (3) to 12 of the Lancaster House Constitution 1979. 52 Section 31J of the Lancaster House Constitution 1979. 53 Section 31K of the Lancaster House Constitution 1979. 54 See section 2 and other relevant provisions of the Presidential Powers (Temporary Measures) Act 1 of 1986, hereinafter referred to as the Presidential Powers Act. 55 Mhodi (n 2) 388–92. 56 Section 31G of the Lancaster House Constitution 1979. 57 Section 31F of the Lancaster House Constitution 1979. 58 Section 31F(3) of the Lancaster House Constitution 1979. 59 Kersting (n 2) 216–20. 60 The parliament comprised members of the senate and the national assembly. Section 33 of the Lancaster House Constitution 1979. 61 Section 32. 62 Mhodi (n 2) 388–92. 63 The president of the senate was elected from persons who were or have been members of the senate or the national assembly and who were not members of the cabinet, ministers, deputy ministers, and provincial governors. Section 35 read with section 36 of the Lancaster House Constitution 1979. 64 Section 33 of the Lancaster House Constitution 1979. In other words, amendment 19 of this constitution enabled 93 persons to be elected for senate during the general elections. 65 Sections 34 and 35 of the Lancaster House Constitution 1979. 66 Section 36 of the Lancaster House Constitution 1979. 67 Section 39 of the Lancaster House Constitution 1979. 68 Section 38 of the Lancaster House Constitution 1979. 69 Section 39(2) of the Lancaster House Constitution 1979. 70 Section 40(2) and (5) of the Lancaster House Constitution 1979. 71 Section 41 of the Lancaster House Constitution 1979. 72 Section 41(4) of the Lancaster House Constitution 1979. 73 Sections 42 and 43 of the Lancaster House Constitution 1979. 74 Section 40A and B of the Lancaster House Constitution 1979; de Bourbon (n 5) 196–201. 75 Section 40A(1) read with (2)–(4) of the Lancaster House Constitution 1979. The CSRO was made up of the speaker; the president of the senate; the deputy speaker; the deputy president of the Senate; and other members appointed by both the speaker and the president of the senate. See section 57(2) of the Lancaster House Constitution 1979. 76 Section 40A(2) read with (3) of the Lancaster House Constitution 1979. 77 Section 40B of the Lancaster House Constitution 1979. 78 See generally de Bourbon (n 5) 196–201; Mhodi (n 2) 388–92; L Madhuku ‘Constitutional Protection of the Independence of the Judiciary: A Survey of the Position in Southern Africa’ [2002] J Afr L 46, 232 at 232–58 and L Madhuku ‘The Appointment Process of Judges in Zimbabwe and Its Implications for the Administration of Justice’ [2006] SAPR/PL 21, 345 at 346–69, for further related discussion. 79 Section 50 of the Lancaster House Constitution 1979. 80 Section 51 of the Lancaster House Constitution 1979. 81 Section 51(2), (3), and (3a) of the Lancaster House Constitution 1979. 82 Sections 52 and 53 of the Lancaster House Constitution 1979. 83 Section 54(1) of the Lancaster House Constitution 1979. 84 Section 54(2) of the Lancaster House Constitution 1979. 85 Section 56(1) of the Lancaster House Constitution 1979. 86 Section 57 of the Lancaster House Constitution 1979. 87 Sections 46 and 47 of the Lancaster House Constitution 1979. 88 Likewise, the attorney general was allowed to sit and speak in the senate as well as the national assembly without voting. Sections 46 and 47 of the Lancaster House Constitution 1979. 89 Mhodi (n 2) 384–97. 90 See Kersting (n 2) 160–65, for further related remarks. 91 See the relevant provisions under ch. IV; also, see related comments in para. 2(A)(i) above. 92 See the relevant provisions under ch. 5. 93 Section 88(1) of the Zimbabwe Constitution 2013. 94 Section 89 of the Zimbabwe Constitution 2013. 95 See the relevant provisions under chs 5, 6, 8, and 11 of the Zimbabwe Constitution 2013. 96 See the relevant provisions under chs 5, 6, and 8 of the Zimbabwe Constitution 2013. 97 Section 88(2) of the Zimbabwe Constitution 2013. 98 See related comments in para. 2(A)(i) above. 99 Section 91(1) of the Zimbabwe Constitution 2013. 100 See para. 2(A)(i) above. 101 See para. 2(A)(i) above. 102 Section 91(1). 103 Section 91(1). 104 A person who served as president or vice president for a continuous or non-continuous term of five years was disqualified. Notably, a three or more years’ service is regarded as a full term in this regard. Section 91(2) read with section 95 of the Zimbabwe Constitution 2013. 105 See relevant sections in para. 2(A)(i) above. 106 Section 92(3) read with sections 158, 109(4) and (5), and 143 of the Zimbabwe Constitution 2013. Notably, such elections are usually held not more than 30 days before the expiry of the parliament’s 5-year term or 90 days after the dissolution of parliament through a parliamentary resolution and/or 90 days after the parliament is dissolved through a vote of no confidence. 107 Section 92(1), (2), (3), and (5) read with section 158. 108 Section 92(2) of the Zimbabwe Constitution 2013. 109 Section 92(2) of the Zimbabwe Constitution 2013. 110 Section 100 read with sections 90, 94, 97, and 99 of the Zimbabwe Constitution 2013. 111 Section 90 of the Zimbabwe Constitution 2013. 112 Amnesty International ‘Walk the Talk’: Zimbabwe Must Respect and Protect Fundamental Freedoms During the 2013 Harmonized Elections (Amnesty International Publications 2013) 5 at 6–30, available at: http://www.refworld.org/docid/51e500634.html (accessed 15 May 2017) and the Zimbabwe Human Rights Forum Zimbabwe Human Rights, Rule of Law & Democracy Report (2013) 1 at 2–67, available at: http://www.hrforumzim.org/publications/annual-reports/zimbabwe-human-rights-rule-of-law-and-democracy-2013-annual-report/ (accessed 15 May 2017). 113 See the International Crisis Group Zimbabwe: Waiting for the Future AFRICA Briefing No 103 (29 September 2014) 1 at 2–19, available at: https://www.crisisgroup.org/africa/southern-africa/zimbabwe/zimbabwe-waiting-future (accessed 15 May 2017). C Dziva, B Dube and P Manatsa ‘A Critique of the 2008 Government of National Unity and Human Rights Protection in Zimbabwe’ [2013] Int J Hum Soc Sc Invent 2, 83, 83–91; Amnesty International ‘Zimbabwe: Human Rights Agenda for the Government 2013–2018’ (Amnesty International Publications 2013) 5 at 6–22, available at: https://www.crisisgroup.org/africa/southern-africa/zimbabwe/zimbabwe-waiting-future (accessed 15 May 2017); and de Bourbon (n 5) 196–221. 114 Section 110(1) and (2) of the Zimbabwe Constitution 2013. 115 Section 110(1), (2), and (6) of the Zimbabwe Constitution 2013. 116 Section 110(3) of the Zimbabwe Constitution 2013. 117 Sections 104–108 of the Zimbabwe Constitution 2013. 118 Section 105 of the Zimbabwe Constitution 2013. 119 Sections 108, 114, and 115 of the Zimbabwe Constitution 2013. Notably, the office of the attorney general was originally mandated to deal with both criminal and civil laws of Zimbabwe. Nonetheless, the Zimbabwe Constitution 2013 now provides that the attorney general deals with the enforcement of civil laws, while the prosecutor general oversees the enforcement of criminal laws in Zimbabwe. 120 Section 107 of the Zimbabwe Constitution 2013. 121 Sections 109 and 119(3) read with sections 107 and 108 of the Zimbabwe Constitution 2013. 122 Section 111 of the Zimbabwe Constitution 2013. 123 Section 112 of the Zimbabwe Constitution 2013. 124 See related sections in para. 2(A)(i) above. 125 Section 112 of the Zimbabwe Constitution 2013. 126 Section 113 of the Zimbabwe Constitution 2013. 127 See the relevant sections in para. 2(A)(i) above. 128 Section 113. It must be noted that various fundamental rights and freedoms of people are usually limited in accordance with the Constitution during a public emergency. Section 87 read with section 86 of the Zimbabwe Constitution 2013. 129 Section 113(7) and (8) of the Zimbabwe Constitution 2013. 130 Sections 111, 112, and 113 of the Zimbabwe Constitution 2013. The cabinet is empowered to direct operations of government and government business in parliament. It is also authorized to advise the president and to prepare, initiate, and implement national legislation. This suggests that the cabinet influences the functions of both the parliament and the president. Section 110(3) of the Zimbabwe Constitution 2013. 131 Section 100(1) of the Zimbabwe Constitution 2013. 132 Section 31. 133 Section 100(1) of the Zimbabwe Constitution 2013. 134 Section 100(1) of the Zimbabwe Constitution 2013. 135 Section 100(1)(c) of the Zimbabwe Constitution 2013. 136 Section 31. 137 Section 100(2) read with section 110 of the Zimbabwe Constitution 2013. 138 Section 100(2) of the of the Zimbabwe Constitution 2013. 139 Section 100(2) of the of the Zimbabwe Constitution 2013. 140 Section 100 of the Zimbabwe Constitution 2013. 141 Section 99 of the Zimbabwe Constitution 2013. 142 Section 94(2) of the Zimbabwe Constitution 2013. 143 This is usually done 9 days after they are declared to be elected or within 48 hours after the Constitutional Court has declared them to be the winners. Section 94(1) of the Zimbabwe Constitution 2013. 144 Section 94(3) of the Zimbabwe Constitution 2013. 145 Section 95 read with section 91(2) of the Zimbabwe Constitution 2013. 146 Likewise, a vice president can tender his or her resignation letter to the president. Section 96 of the Zimbabwe Constitution 2013. 147 Section 97 of the Zimbabwe Constitution 2013. 148 Section 97(3) of the Zimbabwe Constitution 2013. 149 Section 101(1)(a) of the Zimbabwe Constitution 2013. 150 Section 101(1)(b) of the Zimbabwe Constitution 2013. 151 Such petition must be filed within seven days after the date of the declaration of the results of the election. Section 93 of the Zimbabwe Constitution 2013. 152 See para. 2(A)(i) above. 153 Section 98(1) of the Zimbabwe Constitution 2013. 154 Section 98(2) of the Zimbabwe Constitution 2013. 155 Section 98(4) of the Zimbabwe Constitution 2013. 156 Section 98(3) of the Zimbabwe Constitution 2013. 157 Section 102 of the Zimbabwe Constitution 2013. 158 Section 103 of the Zimbabwe Constitution 2013. 159 See related comments and sections in para. 2(A)(ii) above. 160 Sections 116 and 117 read with section 134. 161 Section 44 of the Constitution of South Africa. 162 See related comments in para. 2(A)(ii) above. 163 Mhodi (n 2) 388–89. 164 Section 116 of the Zimbabwe Constitution 2013. 165 Mhodi (n 2) 388–89. 166 Section 117(2) of the Zimbabwe Constitution 2013. 167 Section 42 read with sections 43 and 44 of the Constitution of South Africa. 168 Section 116 read with section 117. 169 Section 42(1) of the Constitution of South Africa. 170 Sections 118 and 119 of the Zimbabwe Constitution 2013. 171 Section 120(1)(a) of the Zimbabwe Constitution 2013. 172 Section 120(1)(b)–(d) and (2) of the Zimbabwe Constitution 2013. In other words, the aforesaid proportional representation system of electing senators is required to provide an equal representation of women and persons with disabilities in the senate. 173 Section 121(1)–(3) of the Zimbabwe Constitution 2013. 174 Section 121(4) and (5) of the Zimbabwe Constitution 2013. 175 Sections 122 and 123 of the Zimbabwe Constitution 2013. 176 Sections 122(7) and (8) and 123(5) and (6) of the Zimbabwe Constitution 2013. 177 Sections 126 and 127 of the Zimbabwe Constitution 2013. 178 Sections 126 and 127 of the Zimbabwe Constitution 2013. 179 Sections 126(7) and (8) and 127(5) and (6) of the Zimbabwe Constitution 2013. 180 See earlier comments in para. 2(A)(ii) above. 181 Section 124 of the Zimbabwe Constitution 2013. 182 Section 124(1)(b) read with (2) and (3) of the Zimbabwe Constitution 2013. 183 Section 46 of the Constitution of South Africa. 184 Section 124 of the Zimbabwe Constitution 2013. 185 Section 125(1) of the Zimbabwe Constitution 2013. 186 Section 125(2) and (3) of the Zimbabwe Constitution 2013. 187 See earlier comments in para. 2(A)(ii) above. 188 Section 129 read with section 128 of the Zimbabwe Constitution 2013. 189 Section 129 of the Zimbabwe Constitution 2013. 190 Section 41. 191 Section 47 of the Constitution of South Africa. 192 See relevant sections in para. 2(A)(ii) above. 193 Section 152 read with sections 149, 145, 146, and 147 of the Zimbabwe Constitution 2013. 194 Section 152(1) and (2) of the Zimbabwe Constitution 2013. 195 See sections and discussions in para. 2(A)(ii) above. 196 Section 152(1) and (2) of the Zimbabwe Constitution 2013. 197 Section 152(3)–(5) of the Zimbabwe Constitution 2013. 198 Section 152(3)–(4) of the Zimbabwe Constitution 2013. 199 Section 130–134 of the Zimbabwe Constitution 2013. 200 Section 131 of the Zimbabwe Constitution 2013. 201 Section 55 of the Constitution of South Africa. 202 See para. 2(A)(ii) above. 203 Section 131(6)–(10) of the Zimbabwe Constitution 2013. 204 Sections 133 and 134 of the Zimbabwe Constitution 2013. 205 Section 137 of the Zimbabwe Constitution 2013. 206 Section 138 of the Zimbabwe Constitution 2013. 207 Sections 138 and 140 read with section 141 of the Zimbabwe Constitution 2013. 208 Section 54 read with sections 55–59 of the Constitution of South Africa. 209 The CRSO is, inter alia, responsible for supervising the administration of parliament, formulating standing orders, and considering all parliamentary matters in Zimbabwe. Section 151(1) read with (2)–(7) of the Zimbabwe Constitution 2013. 210 Sections 139 and 141 of the Zimbabwe Constitution 2013. 211 Sections 54–59 of the Constitution of South Africa. 212 Section 142 of the Zimbabwe Constitution 2013. 213 Section 49(1) and (2) read with section 50 of the Constitution of South Africa. 214 Section 143(1) and (2) read with section 144 of the Zimbabwe Constitution 2013. 215 Section 143(3) read with (4) and (5) and section 305 of the Zimbabwe Constitution 2013. 216 Section 109(4) and (5) read with section 144 of the Zimbabwe Constitution 2013. 217 Section 89 of the Constitution of South Africa. 218 The president or vice president may be removed from office by parliament for serious violation of the Zimbabwe Constitution 2013 or other laws of Zimbabwe or serious misconduct and/or inability to perform his or her presidential functions. Section 97 of the Zimbabwe Constitution 2013. 219 Mhodi (n 2) 389–90. 220 Mhodi (n 2) 389–90. 221 Section 143(1), (2), and (3) and section 109(4) and (5) of the Zimbabwe Constitution 2013. 222 Mhodi (n 2) 389–90. 223 See Kersting (n 2) 160–65, for further related remarks. 224 Section 27(1) of the Lancaster House Constitution 1979; also, see para. 2(A)(i) above. 225 Also see related comments in para. 2(B)(i) above. See further sections 3(1)(c), (2), and 6 read with Schedule Part I(1) of section 11 of the Administrative Justice Act [ch. 10:28] 12 of 2004 which exempts the president and cabinet from facing just administrative actions when they conduct their duties in a lawful, reasonable, and procedurally fair manner. 226 Also, see related comments in para. 2(B)(i) above. 227 See related comments in para. 2(A)(i) above. 228 Also, see related comments in para. 2(B)(i) above. 229 See related comments in para. 2(A)(i) above. 230 See related comments in para. 2(A)(i) above. 231 Section 91(2) read with section 95 of the Zimbabwe Constitution 2013; also, see comments in para. 2(B)(i) above. 232 Section 30(1) of the Lancaster House Constitution 1979; also, see para. 2(A)(i) above. 233 See the relevant provisions under ch. 5. 234 See the relevant provisions under ch. 5. 235 Section 92(1), (2), (3), and (5) read with section 158. It is important to note that an executive president as opposed to a ceremonial president or prime minister was retained by the Zimbabwe Constitution 2013. 236 See the relevant provisions under chs 5, 6, and 8 of the Zimbabwe Constitution 2013; also, see para. 2(B)(i) above. 237 Section 113(7) and (8) of the Zimbabwe Constitution 2013; also, see para. 2(B)(i) above. 238 Section 97(3) of the Zimbabwe Constitution 2013; also, see related comments in para. 2(B)(i) above. 239 Section 33 read with section 32 of the Lancaster House Constitution 1979. 240 Section 116 read with sections 117 and 134; see further related comments and sections in para. 2(B)(ii) above. 241 Mhodi (n 2) 388–89; see further related comments in para. 2(B)(ii) above. 242 See paras 2(A)(ii) and 2(B)(ii) above. 243 Section 143(1) and (2) read with section 144 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 244 Section 97 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 245 Section 120 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 246 See further related comments in para. 2(B)(ii) above. 247 See related comments and sections in para. 2(A)(ii) above. 248 Sections 122 and 123 of the Zimbabwe Constitution 2013; see further related comments in para. 2(B)(ii) above. 249 Sections 126 and 127 of the Zimbabwe Constitution 2013; see further related comments in paras 2(A)(ii) and 2(B)(ii) above. 250 See related comments in para. 2(A)(ii) above. 251 Section 152 read with sections 149, 145, 146, and 147 of the Zimbabwe Constitution 2013; see further comments in para. 2(B)(ii) above. 252 See related remarks in paras 2(A)(i) and 2(B)(i) above. 253 See related comments in paras 2(A)(i) and 2(B)(i) above. 254 See related comments in paras 2(A)(i) and 2(B)(i) above. 255 See related comments in paras 2(A)(i) and 2(B)(i) above. 256 See related comments in paras 2(A)(ii) and 2(B)(ii) above. 257 See related comments in paras 2(A)(ii) and 2(B)(ii) above. 258 See related remarks in paras 2(A)(i) and 2(B)(i) above. 259 See related remarks in paras 2(A)(i) and 2(B)(i) above. 260 See related remarks in paras 2(A)(i) and 2(B)(i) above. 261 See related comments in paras 2(A)(ii) and 2(B)(ii) above. 262 See related comments in related comments in paras 2(A)(ii) and 2(B)(ii) above. © The Author 2017. 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Statute Law ReviewOxford University Press

Published: May 24, 2017

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