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Tuesday, March 21, 2023

ZANU PF Constitution Is Amended By Congress Not The President

By Dr Masimba Mavaza

The private media was awash with the news that “the president and first secretary of ZANU PF Emmerson Mnangagwa have mutilated the party constitution introducing sweeping changes, ostensibly, to remove some provisions that hounded his firm grip to power.”

The new amendments which confused the private media were presented by the former party secretary for legal affairs Paul Mangwana at the 7th Zanu PF National Congress held in Harare, last month.

President Mnangagwa still has the mandate from the people who re-elected him to be the party’s first secretary and was named as the presidential candidate for elections next year.

National chairman Oppah Muchinguri had clearly announced the adoption of the amendments by congress.

However, some opposition political commentators argued that the constitutional changes were cosmetic while others said Mnangagwa was gearing up for the elections.

The preamble of the constitution of ZANU PF says, “whereas we, the people of Zimbabwe are an African nation with a long proud history and rich and cultural heritage and whereas we the people of Zimbabwe recognise the importance of God the Almighty-and our Ancestors in guiding the Liberation movements in the execution of the armed struggle… Now, therefore, we, the representatives of the people of Zimbabwe in congress assembled and now United and reconstituted under the name ZANU PF, Do hereby grant unto ourselves this constitution.”

The constitution is grunted unto us by us. Us being ZANU PF. The
Constitution does not rule us but binds us. The constitution is a very important document which is for the people by the people. Abraham Lincoln once said,
“that these dead shall not have died in vain– that this nation, under God, shall have a new birth of freedom and that government of the people, by the people, for the people, shall not perish from the earth”.

So, as in ZANU PF, its constitution is planted in the blood of those who died and being bound by this constitution is a sign that those dead did not die in vain.

It is one of the best-known speeches in world history and perhaps one of the greatest and the most influential statements for any form of democracy.

Freedom and democracy are often deemed interchangeable but the two are certainly not synonymous and it can safely be premised that democracy is the institutionalisation of freedom and the constitution is the bulwark of democracy.

Now to a more pertinent question, What is the constitution? The constitution is a set of fundamental principles or established precedents according to which an organisation is governed making a clear demarcation of the responsibilities assigned to each individual responsible for running the organisation.

The Independent Newspaper in total ignorance of the reasons for the amendment accused the President, Cde ED Mnangagwa of mutilating the ZANU PF constitution.

In their article, the Independent said that “Zanu PF has amended its constitution since President Mnangagwa took over the party leadership in 2017. There are allegations that Mnangagwa is changing the constitution according to his whims”.

It should be said that a constitutional amendment is a modification of the constitution of a polity, organization or another type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document. PRESIDENT MNANGAGWA has no power to amend the constitution at his whim. The constitution of ZANU PF is amended by congress. This means that the party recommends a team to deal with amendments. The amendments will then be reduced into writing and are then endorsed and accepted by congress. Amendment of a constitution is not a one-man effort. It is mischievous that one suggests that President Mnangagwa is amending the constitution at a whim.

The constitution is not a yoke. It does not control people. People control the constitution. The constitution is made for the people by the people, not vice versa. Amending the ZANU PF constitution require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation. We must not forget that a political party is made up of individuals who organise to win elections, operate the government, and influence public policy. They have a duty to amend their constitution to adjust to current affairs. ZANU PF is not a slave to its constitution.

Virtually all constitutions codify amendment rules. Amendment rules of course create a legal process for reformers to alter the constitution. But amendment rules serve important purposes even if the constitution is never amended at all because they have essential uses beyond the obvious one of textual alteration. ZANU PF amended its constitution in Oder to repair imperfections, distinguishing constitutional from ordinary law, entrenching rules against easy repeal or revision, and establishing a predictable procedure for constitutional change.

The private press had said “According to Article 5 (6), there shall be a Presidium, of four members at least one of whom shall be a woman, consisting of the President and First Secretary, two Vice Presidents and Second Secretaries and the National Chairperson… It seems the constitution was changed to remove a provision where one of the vice presidents is a woman. Is President Mnangagwa mutilating the constitution to protect the people who supported him when he assumed power, that is, Vice President Chiwenga and Vice President Mohadi?’ It must be qualified that IT IS ONLY ZANU PF in Zimbabwe which has a provision for women’s quota in its structures.

The requirement of a woman in the praesidium has not been tampered with. Actually, the constitution has been amended to encompass the chairmanship in the presidium. If it happens that a chairman is a man then one of the Vice Presidents will be a woman. This amendment is in line with accommodating women into leadership. It is naive to suggest that the amendments were made to favour President Mnangagwa.

The last time I checked President Mnangagwa was a man and including women in the presidium does not benefit President Mnangagwa but it benefits the women to gain leadership positions without harsh and stiff competition. ZANU PF recognises that women have played a great role in the war for our freedom. Starting with the first woman General Nehanda to our mothers and sisters who shed their blood for us to enjoy today.

The detractors said, “Section 31, according to the new changes, entails the Secretary For Administration to give at least fourteen days (14) notice convening an extraordinary session of Congress in case of a vacancy occurring as provided in section 26 (2), there are arguments that this was in response to Sybeth Msengezi’s court application. Is President Mnangagwa trying to outmanoeuvre people perceived to be fighting his rise to the presidency?” Despite the warped thinking of the opposition, we must remember that the Constitution is amended to cover the people. The constitution must not be a burden to its people.

Firstly, Sybeth Musengezi”s case becomes moot. It dies a natural death. What he has been praying for in court has been healed by congress. His application has been overtaken by the events of the congress. It is therefore not true that the amendments were tipped to favour President Mnangagwa. The fight against President Mnangagwa’s rise to power was defeated by his very own ascendancy. He is already in power thus there is no more fight against what has become.

So there is no attempt to silence detractors because the war has already been won. The congress put to rest concerns raised by Musengezi Sybeth.
Further to their confusion the private press and their opposition masters queried ARTICLE 8 (48) which says the President and First Secretary may, at his or her discretion, appoint any or all of the Heads of Departments listed below. If in the opinion of the President and First Secretary it is desirable to create additional departments to the ones listed below, he shall at his discretion add such departments and appoint Heads to the departments so created.” We must realise that the constitution gives the presidents discretion. The use of discretion suggests reasonableness. If the president uses his discretion he should be able to justify his discretion. The departmental heads are the workers who pull together with the presidents. To the wisdom of ZANU PF cadres, the president must be allowed to choose the team he can work with. Discretion has become a constitutional mandate to give the president the right to choose a winning team which understands team play. So the President has not breached his constitutional mandate. He is within his highway.

Section 49 (Appointment of Members of the Politburo and the Deputy Heads of Departments) states “Immediately after the election of the President and First Secretary and Members of the Central Committee, the President and First Secretary of the Party shall, during the sitting of the Congress, appoint from the newly elected Central Committee, two (2) Vice-Presidents and Second Secretaries, the National Chairperson, the Heads of Departments of the Politburo the Committee Members of the Politburo and the Deputies to the Heads of Departments.”

Is President Mnangagwa not in violation of these provisions after failing to appoint the heads of departments and their deputies two weeks after the congress?
The constitution is clear on this point. It requires an immediate appointment. The word immediate has not been defined. It is up to the president to define immediately. So immediate can be two weeks or two months. The speed towards immediate lies in the hands of the President.

One major topical amendment was the provision for a female member of the presidium — be it a woman vice president or party chairperson. The position of national chairperson was also included in the presidium.
The national secretary for administration will be the secretary to the presidium.

This, according to observers, protects the status quo, especially the positions held by vice presidents Constantino Chiwenga and Kembo Mohadi.
Yes, there was the provision for a female vice president but that amendment makes it clear that a woman can take any of the positions in the presidium.”

“The good thing about the Zanu PF constitution is that it does not have presidential terms. I think that is all one needs as a president. There is nowhere that a whole party can torpedo the president due to the balance of forces that are in and outside Zanu PF.”

ZANU PF has the choice between making a new constitution and amending an existing constitution
to achieve substantial constitutional change. This choice is the prerogative of congress.

The founding fathers of ZANU PF envisioned a constitution for the people framing a set of rules and regulations guiding the administration of our party.
There is nowhere on earth in would the President manipulate the constitution. The fact that the might of the constitutional mandate is required if any such suggested changes have to see the light of the day means individuals will not manipulate the constitution to their personal advantage.

It is a shared perspective and privately many individuals agree to it that a lot of ills which have plagued the party in the past and continue to do it even today could have been avoided had there been a complete understanding and willingness to practice constitution in its purest form. It should become a norm to send a digital copy of the constitution to every member along with a membership number. ZANU PF has taken the oath of allegiance to its constitution and there should be orientation programs for a better comprehension of its constitution and values. Also, the head office has identified some of our learned veterans as resource persons to propagate the body and soul of our constitution to the general members.

As members of this most prestigious organisation, it is our beholden constitutional duty to do so for the coming generations of periodontists.
So it is an insult to suggest that the president has mutilated the constitution at a whim.


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