With its 2013 constitution Zimbabwe made a much better job of putting together a coherent, consistent and democratic constitution to replace the much amended and somewhat tatty 1980 constitution.
But it is unlikely that we got it 100 percent right and in the last six years we have had even more experience in running our own country, we have seen more progress of modern ideas of gender equality and human rights and generally we can probably find new ways to tweak the document that is the bedrock of our law.
Any amendment, though, does require public debate, and that requirement is in the constitution, and a great deal of consensus to gain approval. And any change to the Declaration of Rights or fundamental land law requires a referendum.
This is why the discussion of constitutional amendments has been limited to areas where there is growing consensus across political parties: the death penalty, the special reserved seats for women in the National Assembly and now the precise role and best way of electing or nominating Vice Presidents.
On the death penalty, in 1980 the new independent government inherited a slew of capital crimes, none defined in the constitution. Over the years changes to the relevant laws removed most from the statute books and no sentences of death for any crime except murder were given by the post-independence courts.
By 2013 a de facto moratorium on executions had been in place for a number of years but there was still significant public support for the death penalty although the only crime where such a sentence can now be passed is for aggravated murder by an adult male. The unofficial moratorium has had another six years; the murder rate is still very low so the deterrents of almost certain arrest followed by life in prison are working; a new generation that has never heard of hanging is now filling the voters’ rolls. There is now almost certainly a high level of consensus to abolish capital punishment although ensuring that life imprisonment is the standard sentence for the worst murder cases.
The provision of an additional 60 women members of the National Assembly elected by proportional representation was supposed to be a temporary measure for two Parliaments to help accelerate progress towards gender balance. Regrettably progress has been slower than expected, as women’s organisations are not slow to point out, while the general feeling is that gender balance actually means balance, not a modest token presence.
With the dual pressures of rising expectations and slowish progress there is obviously a fairly large consensus developing that we need to keep this provision in place. How the eventual time limit should be defined is more difficult to define. As a permanent provision it is a bad idea and even in the shorter term it suffers from the problem facing many affirmative action programmes, that of removing the group benefiting from the mainstream where they ought to be.
Now the question of the vice presidents has reached the debating floor. Since the advent of the executive presidency in 1987, the vice presidents have been appointees of the President, the person directly elected by the people to head the executive branch. They have, in effect, served as senior cabinet ministers at the pleasure of the President. They act in his absence but have never had automatic rights of succession.
The 2013 constitution retained this concept but just for the life of two Parliaments. It then lays down a very American system that the vice-presidents and the President are elected on a single ticket, as a troika, with an automatic right of succession should there be a vacancy. This creates the problem of a second focus of executive power, and one the American presidents have generally solved by ensuring that their vice-president does nothing more important than attend funerals and in many cases choosing a vice-president whom few would ever vote into the top office.
The Americans did not even want the second person when they were drafting their constitution, the one they still use. During much of the convention it was assumed that the senior branch of the legislature, the senate, which in effect represented the states, would elect its own presiding officer and that gentleman would take over if the Presidency was vacant, either for the rest of the term or until a special election. This is used in many countries. In France, for example, the executive president does not have a vice-president. The senate president acts while a quick election is fought to fill the vacancy.
The US vice-presidency was created to solve another problem. The US at that stage comprised 13 fiercely independent states with most people thinking themselves as a citizen of their state rather than as a citizen of the USA. So in an election for president the probability was that most would vote for the homeboy, and no one would get a majority, or even more than 20 percent.
After some serious thought a small committee came up with an idea. The presidential electors, chosen in each state, would have two votes each and these votes while equal had to be cast for residents of different states. The net result would, they expected, that after George Washington most presidents would be a popular second choice by most states. The man coming second would then be vice president. And even then they made the vice-president president of the senate otherwise he would have nothing to do.
The result was as might have been expected. Parties arose. The second president and vice president came from opposing parties and fought. The third president was elected after 36 ballots in the House of Representatives because Thomas Jefferson and Aaron Burr had the same number of electoral college votes for president. So the US changed the system to put the two on the same ticket, which many American constitutional experts have criticised over the years, preferring an acting president for a few weeks while a new election is held.
We are not certain of the right answer for Zimbabwe in the 21st century. But we agree that the troika is probably not the best system, especially as we are setting up the presidential succession for the next five years. We need to keep our own history in mind and ensure we have thought through all dangers and implications.
So in any case we should all debate this systematically and think through the implications of the system we get automatically in 2023 if we do nothing and the implications of all the alternatives. As we do that, we are likely to find something better, something that works and something that covers eventualities.