By Alex T. Magaisa
THE Senate of Zimbabwe’s Parliament recently voted in favour of the Constitutional Amendment (No.1) Bill (hereafter “the Constitutional Bill”) in circumstances that render it illegal.
The purpose of this article is to explain the grounds of its illegality and the consequences flowing from its unlawfulness which can be encapsulated as an ongoing constitutional crisis. To appreciate the grounds of illegality, it is important to outline the genealogy of the Constitutional Bill.
Sometime in 2016, the government introduced the Constitutional Bill into Parliament. Its principal purpose was to change the way heads of the judiciary, namely the Chief Justice, The Deputy Chief Justice, and the Judge President of the High Court were appointed.
The 2013 Constitution had made their appointment subject to a public interviewing process, managed by the Judicial Services Commission. The government wanted to change this so that the President would have unilateral powers to make these appointments.
When the vacancy for Chief Justice was imminent because the then Chief Justice Godfrey Chidyausiku was nearing retirement, the JSC started the process of selecting his successor in late 2016. It was at that time that the Constitutional Bill was introduced. The idea was to pre-empt the existing process and allow the President to unilaterally appoint a new Chief Justice.
This attempt failed and the new Chief Justice was appointed after a rigorous public interviewing process. However, Parliament later passed the Constitutional Bill but the problems for the Constitutional Bill did not end there. It was discovered that the procedure for passing Constitutional Bills had been violated.
The first legal challenge
In terms of section 328 of the Constitution, both the National Assembly and the Senate are required to meet a minimum threshold of two-thirds majority voting in favour of a Constitutional Bill.
While the National Assembly had met the threshold, the Senate had fallen short of it by one vote. The President signed the Constitutional Bill into law but the constitutionality of it was challenged at the Constitutional Court by two MPs of the MDC-T then led by Morgan Tsvangirai. These MPs were Jessie Majome and Innocent Gonese.
The Constitutional Court issued its judgment on 31 March 2020, declaring that the constitutional amendment was unconstitutional. It took three years for the Constitutional Court to reach this verdict on such a fundamental matter, an important point that highlights the gross inefficiencies of the highest court in the country.
For inexplicable reasons, the Constitutional Court declared that the Constitutional Bill was unlawful, not the Constitutional Act. Yet the court knew that it was the validity of the Act that was being challenged.
A declaration of invalidity of the Act would have rendered the amendment null and void. By declaring that Constitutional Bill was unconstitutional, the Constitutional Court had created its own remedy, creating false ground to direct the Senate to correct the irregularity by conducting a new vote regarding the Constitutional Bill.
The court thought it was curing a defect in the process, but this quick-fix brought more complications and illegalities.
Perhaps it might have been a possible cure of the illegality if the Constitutional Bill was being returned to the same Parliament. But the Parliament under which it was introduced had long been dissolved by operation of law, and this is the source of the illegality of the Constitutional Court’s original decision.
The second legal challenge
The Senate had until 28 September 2020 to conduct the vote, but it did not do so, pleading the pandemic as a barrier. A few days before the expiry of this deadline, the Senate applied to the Constitutional Court for an extension of the order to allow it to conduct the vote.
This application was opposed because it was a violation of the constitution. It violated section 147 of the constitution which provides that “On dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses”.
The Constitutional Bill was introduced by the 8th Parliament whose term expired by operation of law when it dissolved on the eve of the 2018 elections. This meant the Constitutional Bill had lapsed on that day of dissolution of Parliament.
This meant that when the Constitutional Court directed the Senate to conduct a new vote within 180 days on 31 March 2020, it was a nullity because there was no valid Constitutional Bill to vote on.
However, the majority of the Constitutional Court refused to deal with this issue, reasoning that any examination of it would lead to a review of the original judgment which was passed on 31 March 2020.
The majority realised that this review would lead to the logical conclusion where the illegality of the original judgment would be exposed.
The Constitutional Court had ordered constitutional illegality and now the same court was being asked to declare that its decision was constitutionally illegal.
The majority of the court avoided this question based on protecting the finality of Constitutional Court decisions. In her leading judgment, Justice Rita Makarau (pictured) stated, “I refrain from making such a finding in deference to the principle protecting the finality of the decisions of the Constitutional Court.
The integrity of the decisions of this Court on constitutional matters must be preserved at all times and against all other considerations.”
The majority was effectively protecting illegality under the guise of protecting the finality of an unconstitutional judgment.
Judicial advice to the government
Nevertheless, one of the judges for the majority, Justice Patel acknowledged the problem and gave some advice to Parliament and the government. “… I am nevertheless constrained to caution that their [Parliament] success in this application does not constitute any licence for the applicants [Parliament] to violate the requirements of the constitution or to disregard any of its provisions.”
He warned that “anything done in contravention of the constitution is a nullity”.
This meant that any act or conduct which violates the constitution would according to the judge, “remain a nullity, even if carried out purportedly in compliance with the order of this Court. Consequently, in the event that they decide to proceed with the Constitution Amendment Bill (No. 1), they would be obligated to do so, not only in accordance with the voting requirements prescribed in s 328 of the constitution but also in conformity with any other relevant and applicable constitutional injunction, including the legal ramifications of s 147 of the Constitution.” (my emphasis)
Justice Patel was warning Parliament and by extension, the government that they could not violate the constitution under the guise of complying with a court order.
He specifically referred to the Constitutional Amendment (No. 1) Bill and that it should comply not just with the minimum voting threshold under section 328 of the constitution but also with the requirements of section 147 of the same. Section 147, as already stated, provides that all Bills lapse when Parliament dissolves.
This means the Constitutional Bill had expired and proceeding to vote on a non-existent Constitutional Bill would be meaningless.
Nevertheless, the Senate went on to conduct a vote on the Constitutional Bill, ignoring Justice Patel’s advice and all other critiques that pointed to the illegality of the Constitutional Bill.
70 Senators voted for it with only 1 against. It is now ready to be signed again into law by the President, However, as argued in this article, the resulting Constitutional Amendment (No. 1) Act will still carry a fatal defect of unconstitutionality and remains prone to a challenge.
Legal and political implications
Although the Senate met the minimum threshold required for passing a Constitutional Bill, this did not cure the fatal defect of the so-called Constitutional Bill which is that there was no Constitutional Bill to vote on.
As already argued, under section 147 of the constitution, the Constitutional Bill introduced under the 8th Parliament lapsed when that Parliament dissolved by operation of law on the eve of the 30 July 2018 general elections.
This means there was no valid Constitutional Bill when the Senate conducted its vote. Section two of the constitution provides for the supremacy of the constitution and that all laws, rules, or conduct that are inconsistent with a provision of the constitution are null and void.
This means b violating section 147 of the constitution, the whole exercise in the Senate was a legal nullity.
It requires a litigant to challenge the constitutionality of the latest attempt to amend the constitution, citing the above ground of illegality. It will be a new case based on a different ground from the basis of the challenge used in the previous cases.
The Constitutional Court cannot avoid the case as it did in the Gonese case when it hid under the cover that it wanted to protect the finality of the previous decision. In this new case, the challenge will be on the ground that the Senate vote on a non-existent Constitutional Bill, and it is non-existent because of section 147 of the Constitution.
Meanwhile, the government will carry on under the new amendment based on a presumption of constitutionality. Under this presumption, all existing laws are deemed constitutional until they have been declared invalid by the court.
However, this should not deter a legal challenge because there were solid grounds of illegality. If the government proceeds, it will be doing so at the risk of illegality. This is worse because there is sufficient notice for the government that the amendment is unconstitutional.
What is the rush? The government is in rush for two possible reasons: first, it wants the President to have the power to appoint a new Chief Justice to replace the incumbent, whose retirement by operation of law is imminent.
The President could not have appointed the new Chief Justice while the Constitutional Bill was in abeyance. Now that the Senate has passed the Constitutional Bill and although it is illegal, the President has a fig-leaf cover to make this appointment. He does not care that the passing of the Constitutional Bill has a fatal legal defect.
The second reason is that the passing of the Constitutional Bill opens the way for a second amendment (Constitutional Amendment (No. 2) Bill) which has been pending since last year.
The government could not have passed this second amendment without passing the first because some of its elements are dependent on the first amendment. But this is also the source of problems for the second amendment.
If the first amendment is fatally defective, it will also affect the legal validity of the second amendment. The government is in a hurry to have the second amendment because it will allow the President even more power to appoint judges of the higher courts.
The President will be able to unilaterally appoint judges of the Supreme Court and the Constitutional Court without the need for public interviews. He might even try to extend the current Chief Justice’s term, even though this would also be illegal.
The second amendment is therefore an extension of the first amendment, giving wider powers to the President over the composition of the judiciary, which impacts its independence. These amendments are part of authoritarian consolidation of the Mnangagwa regime.
A disconcerting feature of these amendments is how they are being supported by some elements in the opposition which were formerly against them.
The MDC-T led by Senator Douglas Mwonzora voted overwhelmingly in favour of the Constitutional Bill, even though it is fraught with illegality. Mwonzora was among the architects of the constitution, which was adopted in 2013, but now he is voting for its mutilation under the guise of a brand of politics that he calls “rational disputation”.
It is grossly unreasonable for a constitutional architect to support its erosion by illegal means. However, it is yet another instance of how the Mnangagwa regime’s project of authoritarian consolidation is progressing on the front of creating a controlled opposition.
The Mwonzora-led MDC-T is trying too hard to appease and seek accommodation in the Mnangagwa regime to the point that it is all too happy to openly vote for an unconstitutional change to the constitution.
In conclusion, while the government will take the bulldozer approach and proceed with the amendments and appointments under them, the fatal defects are incurable unless they start the entire process afresh.
The only way to cure the fatal defects of the first amendment is to raze it to the ground and to re-start the process from the National Assembly. The quick-fix which was directed by the Constitutional Court is illegal and does not cure the fatal defect.
Likewise, there is a need to halt the second amendment until the problems of the first amendment are resolved. Meanwhile, the country needs a new Chief Justice and a fully constituted Constitutional Court and Supreme Court. These should be appointed under the rules mandated by the 2013 constitution, which means an open and transparent public interviewing process.
The problem is the current government has no regard for the constitution. Interviews for vacancies at the Constitutional Court were held 6 months ago on 28 September 2020, and to date, there is no appointment. President Mnangagwa is waiting to get powers so that he can appoint whomsoever he wants, notwithstanding the constitutional rules.
He can’t be bothered. But this is not surprising. This is a regime that came to power through an egregious violation of the constitution. Therefore, its aversion to the constitution is by nature.
*Alex Magaisa, Kent Law School, University of Kent and author of the Big Saturday . Read www.bigsr.co.uk
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