3. Subordinating the Executive to the Legislature In the original Lancaster House constitution, Executive power was vested in the Prime Minister, who was a member of the House of Assembly chosen by the President as the person best able to command a majority in the House — usually the leader of the majority party in the House. The President himself was elected by Parliament. This arrangement went some way to ensure that the Executive was answerable to Parliament because neither President nor Prime Minister had an independent mandate from the people. The South African constitution has a variant of this idea. The State President, who is an executive President, is elected by Parliament so he too does not have an independent mandate from the people. Both arrangements give Parliament, at least nominally, the ability to rein in the Executive, but need to be backed up by further procedures (such as impeachment against individual members of the executive and votes of no confidence in the Government) if Parliament is to be truly able to curb Executive power. Restraints on the Way Executive Powers are Exercised Although the present Constitution states that the President has a duty to uphold the Constitution and the law, it does not develop this by specifying how the President should exercise his powers. Indeed, it provides that courts cannot enquire into the way in which the President has exercised his discretion, nor can they enquire into whether any advice was given to him, a provision the new constitution should not contain. Executive decisions of Ministers, on the other hand, are generally reviewable by the courts and may be set aside if they contravene a statute or are grossly unreasonable or were arrived at by illegal or unfair practices. Section 18(1a), inserted in the present Constitution by Amendment No. 19, goes a little further by stating that “Every public officer [a term which includes the President and Ministers] has a duty towards every person in Zimbabwe to exercise his or her functions … in accordance with the law and to observe and uphold the rule of law.” This provision not only requires all public officers to observe the law, but seems to give all Zimbabweans a right to take legal action to ensure that they do so. The new constitution should develop the idea behind section 18(1a) by specifying measures to ensure that all public officers observe the section and through which Zimbabweans can enforce their rights under the section. These could include the following (the first two are taken from the Law Society’s model constitution): • A provision should be inserted in the Declaration of Rights guaranteeing Zimbabweans the right to administrative justice, including the right to be given reasons for all decisions affecting them, and requiring Parliament to enact a law that allows judicial review of all administrative decisions, including those made by the President. • The mechanisms for enforcing the Declaration of Rights should be strengthened, by specifying that all courts (not just the Supreme Court or the Constitutional Court) may issue orders protecting fundamental rights and freedoms and extending the classes of people who may apply for such orders to cover associations acting in the interests of their members and people acting in the public interest. 46