Section 5.11 of the draft, which deals with presidential immunity, states that “while in office the president is not liable to civil or criminal proceedings in any court for things done or omitted to be done in his or her personal capacity.”
It however further states that “civil or criminal proceedings may be instituted against a former President for things done and omitted to be done before he or she became President or while he or she was President.”
Mainstream MDC party Secretary General Tendai Biti, a lawyer by profession, told members of the civic society on Wednesday afternoon that this was the most important feature of the new constitution.
“One of the most important things we have done is that the president can be prosecuted after office for civil and criminal omissions done before he became president or during his presidency,” said Biti.
“If the president were to order 30 000 people to be shot and killed during Gukurahundi when he becomes a civilian he can be prosecuted and it’s a very important safe guard to democracy.”
Biti said apart from providing for the prosecution of the president the new constitution also makes it very difficult for the president to amend the constitution.
The country’s current Lancaster House constitution has been amended 19 times since independence in 1980.
But now one will require a two thirds parliamentary majority and a referendum to do so.
“To change the bill of rights you will have to seek two thirds of parliamentary majority and you will have to go to a referendum. It’s no longer that easy and the use of the simple majority that the Zanu (PF) government used to change the constitution,” said Biti.
In addition he said the president will be expected to be the biggest defender of the constitution and derive his power to rule from it. Section 5.1 of the new constitution says the executive authority of Zimbabwe is derived from the constitution.
“In Zimbabwe at the moment those who are exercising authority do not feel that they derive authority from the people and executive authority has never been exercised in terms of the constitution. The law is secondary. The president must uphold, defend the constitution of the country.”
“So the ultimate defender of the constitution is the president and that’s something that the founding presidents of America did and respected,” said Biti as Zanu (PF)’s highest decision making body the politburo was meeting to discuss the constitution.
The Zanu (PF) party wants an all powerful president with undiluted powers and the 5.2 clause which seeks to deal with succession issues by making it mandatory for presidential candidates to choose two running mates who will automatically become first and second vice presidents scrapped.
“I hope our presidents will respect this constitution. The obligation to defend this constitution begins and ends with you because you are the constitutional embodiment of Zimbabwe.”
Progressively the new constitution also significantly whittles down the powers of the president by putting the executive power in the hands of both the president and the cabinet. The current constitution says executive power is practised by the president alone. It also limits the terms of office of the president to 10 years.
“Africa is abused by leaders such as Mugabe who want to rule until the cows come home and die but in this constitution one cannot rule for more than an aggregate of 10 years which means that if one becomes an acting president for three years those are deemed to be part of the ten years,” said Biti.
In addition the president can now be impeached by a two thirds parliamentary majority through a motion which requires only 50 percent of signatures of members of parliament.