THE Law Society of Zimbabwe (LSZ) has filed a Constitutional Court application challenging the passage of Constitution of Zimbabwe Amendment (No.1) Bill/Act, 2017 and the Constitution of Zimbabwe Amendment (No.2) Act, 2021 which are largely seen as designed to facilitate President Emmerson Mnangagwa’s power consolidation drive.
Mnangagwa was cited as the fourth respondent. Parliament of Zimbabwe (first respondent), President of Senate Mabel Chinomona (second respondent), Speaker of National Assembly Jacob Mudenda (third respondent) and the minister of Justice Ziyambi Ziyambi (fifth respondent) were also cited.
The amendments enable the President to promote judges of the High Court and the Supreme Court to a higher court on the recommendation of the Judicial Service Commission (JSC), without the need for public interviews, thereby opening the door to promotions on the basis of political suitability and cronyism.
They allow judges of the Constitutional Court and the Supreme Court to continue to serve beyond the previously set retirement age of 70 if the President, after consulting the JSC, consents to their doing so. Mnangagwa extended Chief Justice Luke Malaba’s tenure on the strength of this provision, only to be halted by the High Court which ruled that the chief justice’s term ended when he turned 70.
The amendments also allow the President to appoint a vice-president of his choice, after the scrapping of the running mate clause, which was scheduled to be operationalised in 2023, among other things.
In his founding affidavit, Edward Mapara, the LSZ executive secretary, said he was making the application in terms of section 167 (2) (d) as read with section 85 of the constitution as further read with rule 27 of the Constitutional Court rules, 2016.
“The applicant seeks an or-der declaring Constitution of Zimbabwe Amendment (No.1) Bill, 2017 alternatively Constitution Amendment (No.1) Act, 2021 passed by Parliament on April 6, 2021, invalid. It appears the president has not yet assented to it. Should he subsequently do so, the grounds of invalidity re-main the same,” Mapara said.
“Should he subsequently do so, the grounds of invalidility remain the same. The Bill is invalid on the ground that Parliament failed to fulfil a constitutional obligation in that: it passed the lapsed Constitution of Zimbabwe Amendment (No.1) Bill, 2017 in violation of section 147 of the Constitution. It failed to follow the procedure set out in section 328 of the Constitution in promulgating the Constitution Bill (No.1).
“It acted contrary to constitutional duty under section 119 (protect the Constitution and promote democratic governance in Zimbabwe).”
Section 147 states that on the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses. The Bill however straddled the eighth parliament which ran from 2013 to midnight on 29 July 2018 and the ninth parliament, whose tenure ends in 2023.Mapara also said Parliament failed to ensure that the provisions of the constitution are upheld and to ensure that it acts constitutionally and in the national interest.
“The applicant further seeks an order declaring Constitution of Zimbabwe Amendment (No.2) Act, 2021 passed by the first respondent on 4th May 2021 and assented to by the fourth respondent on 7th May 2021 invalid on grounds that the first respondent failed to follow the procedure as set out in terms of Section 328 (3(4)) of the Constitution,” the application reads.
“The first respondent had further failed to comply with the requirements of Section 141(a), (b), and (c) of the Constitution which require Parliament to ensure that it facilitates public involvement in its legislative processes and other processes and in the processes of its Committees and to ensure public consultation and to conduct its business in a transparent manner,” the application reads.
The LSZ is also challenging the application on the grounds that a referendum was not held.
“Further, section 327 (3) requires the Speaker, when giving notice of the Constitutional Bill in the Gazette to publish the precise terms of the Bill. Material amendments were subsequently made to the Constitutional Bill presented to the public, which render the amendments unconstitutional,” the application reads.
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