Why Mnangagwa wants Mugabe to appoint the Chief Justice

Thus, the restrictions have been placed in amending these two provisions in our Constitution not on the basis of time but procedure.  This is what we refer to as entrenchments. These entrenchments also apply to provisions relating to the amendment of term limits provisions and Section 328 itself; as prescribed by Section 328 (7) and (9) respectively. Section 328 (9) restricts the amendment of Section 328 itself, in case someone wants to amend the amendment clause first before attempting to amend other provisions.

The provisions from which this particular amendment proposal on appointment of judges arise, are not entrenched and thus are subject to amendments as long as the proper procedures are followed, and of course, when the rationale of the need of that amendment is found, either by the Government of the day or by any Member of Parliament, who would wish to sponsor a Private Bill. In this case, we are following the procedure prescribed in terms of Section 328 to the letter and spirit, and thus, no issues of constitutional ripeness or otherwise legally arise, particularly on the benchmark of time.

Mr. Speaker, now that we learn that there is no provision in our Constitution that prescribes the time within which a constitutional amendment may be brought before this august House, one may want to learn from even our neighbour, South Africa which adopted their Constitution in 1996 and started to be operational in 1997. The South African Constitution came into effect on 4th February, 1997 and by 28th August, 1997 barely seven months after the effective date, the late President Mandela was signing a constitutional amendment into law, with less than six months of it coming into effect. It made changes related to the Oath of Office of the Acting President and to the jurisdiction of the Truth and Reconciliation Commission, and also to the effect that the Chief Justice should designate another judge to administer the Oath of Office of the President or Acting President, rather than administering it personally.

As a comparative analysis, how do you reconcile the more than four years that our Constitution has been in effect and the less than seven months within which South Africans changed their Constitution? That notwithstanding, the South African people remain proud of their Constitution even when it was changed within six months. I believe that other than some of our own such as Hon. Ndebele, whose pride as a Zimbabwean has been dented simply because we have proposed a constitutional amendment within four years.

Mr. Speaker, it arises from the above South African example that it is not true that a Constitution cannot be amended within four years as in our case, as long as that amendment is legally and procedurally executed as we hereby do. It is trite that while intended to be both foundational and enduring; constitutions are not intended to be immutable. In fact, if the Constitution is to endure, it must be able to respond to changing needs and circumstances. Some amendments are made for the public interests; or to adjust the Constitution to the environment within which the political system operates, including economics, technology, international relations, demographic and values. They can be changed to correct provisions that have proved inadequate over time, or to further improve constitutional rights or to strengthen democratic institutions.

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