New constitution ushers security sector reforms

HARARE - President Robert Mugabe ushered in wide sweeping security sector reforms when he inked the new Zimbabwe Constitution last Wednesday.

Eleven security sector clauses immediately kicked into operation, and ensures that the security sector’s power is controlled constitutionally to ensure that civilians retain control of the affairs of the State and stamps out dictatorship by the military.

The new Constitution now criminalises statements by the country’s security chiefs who recently signalled that they would not accept a victory by Zanu PF’s opposition, headed by former trade unionist Morgan Tsvangirai.

The army’s statement was the latest blow to hopes for a free and fair poll in the country, which is locked in a deepening economic and social crisis.

Clause 12.3 (3) of the new Constitution prohibits the security services or any of their members from acting in a partisan manner, to further the interests of any political party or cause or to prejudice the lawful interests of any political party or cause or indeed to violate the rights of any person.

“Members of the security services must not be active members or office-bearers of any political party or organisation,” the new Constitution says.

Parliament is required to enact a law to ensure the political neutrality of members of the security services.

Significantly, the new Constitution sets a maximum threshold of two terms for Commanders of the Defence Forces or any of their branches. Therefore, the commander of the Defence Forces, the army commander, would serve for a maximum of two, five-year terms while there were no constitutional term limits in the Lancaster House constitution.

Prime Minister Morgan Tsvangirai has openly declared that police chief Augustine Chihuri, who joined the law-enforcement agency at independence as a patrol officer, and Chiwenga, who joined the army as a private under the name Dominic Chinenge in 1980, must be relieved of their duties ostensibly because they were partisan.

But the prime minister lacked the legal powers to enforce what he wants, which has been granted in the new Constitution.

Clause 12.6 (3) states: “The defence forces must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution”.

The Lancaster House constitution makes no specific provision for political neutrality.

The new Constitution specifically has constitutional rules that separate the security forces from politics and prohibit partisan political support by the security services.

Alex Magaisa, Tsvangirai’s political advisor, told the Daily News that with the passing of the new Constitution, security sector reforms at law have been accomplished; what remains is implementation.

“Therefore, while some may continue to say no to security sector reforms, the reality at law is that the Constitution has ushered in security sector reforms,” Magaisa said.

“If you look at the Sixth Schedule of the new Constitution, it actually mentions section 208 as one of the clauses that came into operation on the publication date. This clause regulates the conduct of members of the security services.

“It was so important that it had to be made operational from the publication date rather than from the effective date, which is a later date. This means that as of now, section 208 is operational and requires members of the security services not to act in a partisan manner, not to further or prejudice the interests of any political party.

“Members of security services are also not permitted to be office bearers of any political party or organisation. Section 208 is therefore a fundamental piece of security sector reform.”

The Clause 12.5 of the new Constitution also makes provision for the establishment of an independent mechanism for handling complaints against members of the security services.

The new Constitution specifically requires that all the security services must be regulated by law through Acts of Parliament and makes a clear constitutional statement that the conduct of security services must adhere to and uphold human rights, democratic values and the rule of law.

The new Constitution, which replaces the 19-times amended Lancaster House constitution, requires that in securing national security, it must be done in accordance with the Constitution and the law — which also includes international law.

Under the new Constitution, the intelligence service is recognised and included as one of the security services of Zimbabwe whereas there was no such recognition under the old constitutional order.

Emphasising political neutrality of the Central Intelligence Organisation, Clause 12.16 (2) states that “Any intelligence service of the State must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution”.

The new Constitution proscribes the formation of armed militias and paramilitary groups outside the structures of established laws and clearly states that all armed groups must be formed in accordance with the law and must therefore be regulated by and adhere to the law.

The new Constitution requires that membership of the security services must reflect the diversity of the people of Zimbabwe and ensure that the security forces reflect the demographic composition of Zimbabwe.

On deployment of defence forces, Clause 12.8 specifically requires the president to inform Parliament within seven days of the deployment of defence forces to defend Zimbabwe against external aggression.

More significantly, the new Constitution prohibits members of a security service from obeying an order that is manifestly illegal. There was no equivalent provision in the Lancaster House constitution.

For example, torture is manifestly illegal and if a soldier is ordered to torture an individual he cannot argue that he was obeying an order because that order would be manifestly illegal.

Under the new Constitution, individual members of the security services take primary responsibility for his or her actions and has the option to disobey orders that are manifestly illegal. - Gift Phiri, Political Editor

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