Wednesday, October 22, 2014 Local time: 07:54

Constitution Referendum 2013

Draft Constitution Empowers President to Declare State of Emergency

The process of making such a declaration begins by publishing the proclamation in the gazette.

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Sithandekile Mhlanga
The March 16 constitutional referendum is just a few weeks away. As part of Studio 7’s continued effort to educate listeners on the draft constitution, today we’re looking in more detail at some executive powers - that is, the powers of the president - as detailed in part 4 of the document. Specifically, let’s look at section 113, “States of Public Emergency.”
 
The draft charter allows the president to declare a state of public emergency in any part or in all of Zimbabwe. The process of making such a declaration begins by publishing the proclamation in the gazette. 

Any declaration is valid for a maximum period of 14 days but beyond these stipulated days requires parliament’s approval.  With or without parliamentary approval, generally a state of emergency may not last longer than three months, though extensions are possible in extraordinary circumstances.
 
The Constitutional Court also has a check on this power.  The court can rule that a declaration of a state of public emergency is invalid, if someone requests that the court look into the matter.
 
For more on why a president might declare a state of emergency, VOA’s Sithandekile Mhlanga reached out to political commentator Rejoice Ngwenya, who was involved in the constitutional drafting process. 
 
Mr. Ngwenya explains that a state of public emergency, if declared in response to a natural disaster, would make it easier for the government to protect citizens and spend money to address the problem. 
 
However, he says, there were concerns among the drafters that the government could use a public emergency declaration to clamp down on citizens’ legitimate protests. 
 
Mr. Ngwenya starts by describing a situation in which a president might declare a state of public emergency.
                   
Ngwenya: When there is a flood or an earthquake or a large, uncontrollable fire, civil unrest, or maybe as the result of a political deficit, where there is a mass uprising that may be related to labour unrest or civic unrest or political unrest, invasion by a foreign army, then it will automatically fall under another category of the constitution. So, as you can see, those would be among the three broad areas that would bring about a state of emergency.
 
Q:  As someone who was part of the team during the constitution making process, did any arguments arise during the drafting of the section on the state of emergency?
 
A:  There was a massive argument and debate that arose around the issue of interpretation of a state of emergency that is the result of a legitimate civil unrest, where citizens feel aggrieved and they go on to an Arab spring type of scenario. The writers, the authors, the drafters were saying that it might be possible that an incoming president might use that section as an excuse of subverting public expression of discontent against the government. So that is why it was very important for the authors to clearly explain what's in or not the state of emergency.
 
Q:  What are the advantages to the citizens?

A:  Especially the act of God - drought, flood, massive fires, or disease.  Once a country declares that state, it means even the minister of finance will invoke special powers to spend money to prevent or mitigate and minimize.

A declaration of public emergency also allows state security organs to detain people and limit people’s travel.
 
Section 87 of the draft constitution allows the government to limit these and certain other rights during a public emergency, but the document says the rights listed in point 3 of section 86 may not be limited. Those rights that may not be limited include the right to life, the right not to be tortured, and the right to a fair trial.
 
For details, check out the full draft constitution or our constitution at a glance.  Both documents can be downloaded from our website, www.voazimbabwe.com. Here is the link: http://www.voazimbabwe.com/info/constitutional-referendum-2013/3768.html

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