Thursday, 5 October 2017

“WHY DID YOU NOT SORT IT OUT DURING THE CONSTITUTION MAKING PROCESS?” Hon. Patrick Chinamasa’s remarks in Parliament and the Dark Art of Deflecting Responsibility whilst Centralizing Power

This blog post analyses the claims by Zimbabwe’s Minister of Finance and Economic Development regarding the effectiveness of parliamentarians and participation in the constitution making process.

Zimbabwean Minister of Finance and Economic Development, Hon. Patrick Chinamasa

On 28 September 2017, Zimbabwe’s Minister of Finance and Economic Development, Hon. Patrick Chinamasa, restated his claim that the membership of the Zimbabwean legislature is an undue burden on the country's wage bill.[1] The Parliament of Zimbabwe has 350 members representing an estimated population of 14 million people. The Finance Minister was stressing the need to reduce the national wage bill and in so doing, made the point that the structure of parliament is unsustainable given the limited State resources.[2]  One could have mistaken the Finance Minister to be reading from paragraph 10 of the National Constitutional Assembly (NCA)’s ‘take charge’ talking points to reject the constitutional draft:

The size of Parliament has been increased to a total of 350 MPs (270 National Assembly and 80 Senators) (sec 120 and 124). We have no resources for such a huge legislature.[3]

The realization that parliament is bloated cannot be recent. The Finance Minister was himself a ZANU PF representative in the COPAC Management Committee[4] which was instrumental in the drafting of the current Constitution. Further, he was the Chairperson of this Management Committee[5] when the draft constitution was forwarded to the principals to the Global Political Agreement (GPA). It is not conceivable that he was not aware of the financial ramifications of the composition of parliament only until he was Finance Minister. This issue could have easily been resolved in the drafting process of the constitution, contingent only on the existence of the requisite political will. Poignantly, in the very same parliamentary sitting and in response to a question from Hon. Priscilla Misihairabwi-Mushonga regarding the diaspora vote, the Finance Minister retorted to as follows:

Why did you not sort it out during the Constitution making process?

Hon. Patrick Chinamasa could have been similarly guided in respect of the question of the size of parliament. The irony was not lost on members of parliament, who asked why he was bemoaning the size of parliament whilst ignoring the size of cabinet.[6] The converse is also true: it is not apparent why the legislators did not limit the membership of cabinet and enhance their own powers during the constitution making process. This supports the finding by Tom Ginsburg, Zachary Elkins and Justin Blount[7] that legislatures do not generally produce constitutions which grant parliaments wider powers than constituent assemblies.  

The Finance Minister continued to pivot away from issues by deflecting blame (and attention) back to the questioner. That is to say, Hon. Priscilla Misihairabwi-Mushonga herself should have resolved the issue of the diaspora vote in the constitution making process; whilst the question of the wage bill must be addressed in the context of reducing the size of parliament itself. Rather than addressing the question regarding executive excess, particularly during international travel, blame was deflected back to parliament - the boomerang effect of daring to ask. This is epitomized by the Finance Minister’s remarks to the effect that the members of parliament should themselves be moving motions to reduce the size of parliament:

No, but I am saying it does not need to come from me. Nothing stops you from bringing a motion to say let us reduce the size of our Parliament. You have the power to change the Constitution … I am merely saying this in order to provoke debate so that you do not always think that the Minister of Finance and Economic Development alone can reduce the wage bill. It is all of us. We know the size of our Government and our Parliament, all that expense is unsustainable[8]

The import of these remarks is breathtaking. The Finance Minister is suggesting that ordinary members of parliament have the power to introduce motions and bills to reduce the charge on the Consolidated Revenue Fund in respect of parliament. This would qualify as a money bill to the extent that it would provide for reduction of a charge on the Consolidated Revenue Fund or any other fund vested in or controlled by the State under Section 1(b) of the Fifth Schedule of the Constitution.[9] In terms of Section 4(1)(a) of the Fifth Schedule of the Constitution, parliament can only entertain such a bill on the recommendation of a Vice President, Minister or Deputy Minister.[10] Put differently, the framers of the Constitution, of which the Finance Minister had a senior role, made such bills the sole preserve of the executive. Whilst parliament has the power to initiate legislation under Section 130 (1) of the Constitution, that power is subject to the Fifth Schedule limitations. Cabinet retains the responsibility of preparing and initiating national legislation under Section 110 (3) (c) of the Constitution. These provisions are in keeping with the narrow scope for private members' bills which was affirmed the Supreme Court judgment in the case of Ignatious Chombo vs Parliament of Zimbabwe and Five Others SC 5/13.

Minister of Home Affairs, Hon. Ignatius Chombo, who successfully litigated against (the vast majority of) private members' bills 

Thus, having thwarted efforts at private members’ bills by litigation and constitutional provision, the executive seems dismayed that parliament is not exercising a power which it does not have. The reference by the Finance Minister to parliament’s huge numbers as merely a source of employment[11] echoes, yet again, the talking points[12] of the NCA’s take charge movement:

Despite its huge size, Parliament remains very weak. It is just a talk shop. So why increase the number of MPs to join a talk shop. The political parties are just creating employment for their supporters at the expense of the people.

I have worked in a Non-Governmental Organisation (NGO) where all decision making was retained by and made through a management structure whose deliberations were beyond ordinary employees' input and whose decisions were beyond reproach. Any critique, complaint or question boomeranged to the detriment of its source. The result was an ever-decreasing willingness to engage an increasingly vindictive leadership. Invitations to participate were offers to labour in vain as participation was merely a means for maligning and further marginalizing ordinary voices; with the invidious result that any action was labelled excess of ambition and inaction was viewed as indolence.

The reference to the constitution making process and the failure to resolve weaknesses in the draft does (in spite of questionable motives) seem apposite, more so in light of the warnings made[13] regarding the failure to strengthen parliament, reduce its size and limit the number of Cabinet Ministers. However, when the references are made as part of an invitation for members of parliament to legislate in vain,  they can hardly be regarded as sincere. It is more likely a pivot from failure to use the enormous powers concentrated in the executive to effectively manage the economy; an exercise in the dark art of retaining all the power whilst deflecting all the responsibility. 

David T Hofisi is a human rights lawyer from Zimbabwe and a doctoral candidate at the University of Wisconsin-Madison. He writes in his personal capacity

[6] See Hansard number 2 supra
[8] See Hansard number 2 supra
[11] See Hansard Number 2 supra
[12] See Number 6 supra
[13] See Number 6 supra

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