HIGH Court judge Fatima Chakapamambo Maxwell on Friday ruled that Speaker of Parliament Jacob Mudenda be drawn into a case filed by Zimbabwe Lawyers for Human Rights (ZLHR) on behalf of the Labour, Economists and African Democrats (Lead) political party, seeking to declare the government’s efforts to modify the country’s constitution through the use of a statutory instrument, unconstitutional.
This development comes after the government issued Statutory Instrument (SI) 114 of 2023 on the Statute Law Compilation and Revision (Correction of Constitution of Zimbabwe Amendment No. 2. Act 2021) just before the Nomination Court convened on 21 June 2023, to correct and amend section 268 of the Zimbabwean constitution.
The amended section 268 of the constitution stipulated that each province or metropolitan province must have a council, and that 10 women must be elected to those positions under a proportional representation system, thus excluding men.
However, SI 114, which was effected this month, went on to allow both men and female candidates to be nominated for the political party lists of the 10 positions that were meant for women only.
In the court application, that amendment is now being challenged.
Section 268 has been in effect for two years, having been enacted in 2021. The lawyers for Lead, led by Paidamoyo Saurombe, are arguing that the correction by the government is unconstitutional because a law affecting an election cannot be promulgated once an election proclamation date has been announced. In this case, the election date was announced on 31 May 2023 and the amendment was done way after.
The opposition parties had earlier also pointed out that the Zanu PF government enacted SI 114 of 2023 in order to benefit its candidates as the ruling party had ignored the constitutional amendment and utilised the zebra system to nominate male and female candidates for the 10 provincial or metropolitan council seats.
Following the publication of SI 114, Zec published a Press release on 21 June 2023 alerting political parties that they can proceed with nominating both female and male candidates for provincial or metropolitan council seats which they went on to do.
In an interview with The NewsHawks, Saurombe said Justice minister Ziyambi Ziyambi breached the constitution by using a statutory instrument to amend the constitution.
“The matter was postponed to next week Friday. The court ruled the matter was urgent, but ordered that the Speaker of Parliament be joined to the proceedings. Further papers will be filed next week prior to the hearing.”
“We will be filing our heads next week, but we have two main arguments that we are making: 1. The minister has no power to make the amendments that he did using an S.I. He has to go back to Parliament. 2. Even if the minister could make those ammendments, they cannot affect the upcoming election.”
“The constitutional provision being amended makes it very clear that the provision should be effected through an Act of Parliament, hence amended or not the provision cannot be effected for this upcoming election as it is not in any Act of Parliament as provided for in the constitution,” he said.
Before the court case, top lawyers had posted on social media platform Twitter expressing concern over the issue.
Citizens’ Coalition for Change (CCC) member who is also a lawyer, David Coltart, said SI 144 demonstrated “gross ineptitude by the Zanu PF regime and was also “thoroughly illegal”.
“One cannot just amend a constitutional provision, which has been in place for almost two years, on the day before nomination day, or at any time. It’s utterly bizarre,” he said.
Coltart noted that any nominations of male candidates which follow “this illegal SI” are equally illegal and of no force.
“The new constitutional provisions, sections 268 and 269, bad as they are, state all the candidates must be women. A mere SI can’t change that,” he said, bemoaning this constitutional violation.
“No doubt Zec will again ignore this brazen breach of the constitution. But how incompetent is it for someone to wake up on the eve of an election to ‘correct’ an ‘error’ in the constitution which was published almost two years ago? The bumbling is breathtaking.”
Another CCC member and lawyer, Tendai Biti, said a constitution cannot be amended by a statutory instrument, even assuming that an error was made regarding the amendments made in the National Assembly.
He argued that the Senate debated and adopted that erroneous position, which the President signed into law.
“Under such circumstances, only a constitutional amendment can undo the original position. Besides, a law affecting an election cannot be made once an election proclamation has been made. This is therefore a scandalous mongrel’s breakfast, but one which not many mongrels will touch,” Biti said.