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President Emmerson Mnangagwa greets supporters of his ruling ZANU PF party gather for an election rally in Chinhoyi, Zimbabwe, July 17, 2018. REUTERS/Philimon Bulawayo - RC1A80283490

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Lawyers tackle Mnangagwa’s roughshod constitutional plot

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AT a time when President Emmerson Mnangagwa and Chief Justice Luke Malaba thought their authoritarian consolidation agenda through roughshod constitutional amendments to ensure their 2023 election plan remains intact was on track – steaming ahead unstoppably – lawyers have taken a bold move to derail the runaway train of dictatorship.

OWEN GAGARE
The critical constitutional amendments – Constitution of Zimbabwe Amendment (No.1) and Constitutional Amendment (No.2) – which make the late former president Robert Mugabe, a ruthless authoritarian ruler, look like a saint, are designed to consolidate power in Mnangagwa’s hands in a bid to restore the imperial presidency that ruined the nation in the first place.

Mnangagwa and his cohorts, including Malaba who wants to extend his tenure beyond his retirement on 15 May at 70, are bidding to change the constitution without following proper legislative and constitutional processes to allow the president to avoid having elected vice-presidents as running mates, appoint judges and extend their age limits, and appoint more unelected ministers, among other things.

This will help him consolidate his grip on power and widen his scope of patronage – increase seats on the gravy train and add more slots on the feeding trough – and ensure control.

Most of the changes which the National Assembly made to the Constitutional Amendment (No.2) Bill, which is not subject of the court challenge, in the committee stage materially altered clauses of the original draft or added new clauses that were not there. Hence, they are unconstitutional because they were made without going through the procedure laid down in section 328 of the constitution. 

As a result, the clauses which have been changed and added to the Bill have not been properly passed by parliament. This will remain so no matter how many MPs voted for the Bill in its final reading on 20 April. 

This might also be challenged in court separately.

Constitutional Amendment (No.1) Bill – the subject of court challenge – was passed through Senate on 6 April with worse problems, which even Constitutional Court (ConCourt) judges Annie-Marie Gowora and Bharat Patel were not comfortable with. 

Justice Gowora was stinging in her dissenting judgment on 25 February when justices Rita Makarau and Patel gave senate 90 days on top of 180 days earlier given on 31 March 2020 to regularise the passing of Amendment (No.1) Bill which had been passed irregularly on 1 August 2017 without the required two-thirds majority in violation of the constitution.

Following Tuesday’s passing of Amendment (No.2) Bill, it seemed things were flowing smoothly for Mnangagwa and Malaba, but yesterday’s unexpected (ConCourt) challenge by Bulawayo-based lawyer Nqobani Sithole and his team could derail their plans. 

Mnangagwa and his associates are racing against time. Malaba, by operation of law, ceases to be chief justice at midnight on 15 May when he turns 70.

Mnangagwa, however, desperately wants Malaba to stay on for another five years to help him in his 2023 re-election bid should almost inevitable election disputes spill into the courts, like what happened in 2018 and other previous elections.

To ensure Malaba stays in office, Mnangagwa, through Justice minister Ziyambi Ziyambi, unconstitutionally pushed Amendment (No.1) Bill through Senate three weeks ago and is now pushing Amendment (No.2) Bill – again illegally – through the National Assembly.

Mnangagwa wants these amendments done before 15 May to save Malaba. Ziyambi has presidential instructions to ensure that, The NewsHawks, which has been following this process closely and reporting on it weeks on end, has it on good authority.

However, Sithole yesterday filed a ConCourt application challenging the passing of the first amendment, arguing that it violated section 147 of the constitution as it straddled two different lives of parliament.

The Bill straddled the eighth parliament which ran from 2013 to midnight on Sunday 29 July 2018, and the currently running ninth parliament, whose tenure ends in 2023. 

In terms of the law, the executive should have re-introduced the Bill in the current parliament, rather than carrying on from the previous parliamentary life since it had already lapsed.

Section 147 of the constitution reads: “On the dissolution of parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.”

In his application, in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with rule 27(1) of the ConCourt rules, 2016, which cites the Parliament of Zimbabwe, Speaker of the National Assembly, President of Senate, Ziyambi and Mnangagwa, Sithole is seeking an order which declares that by passing Amendment (No.1) Bill on 6 April after it was carried over into the current life of parliament from the previous one, senate violated section 147 of the constitution.

Sithole, a lawyer, represented by Ncube & Partners, a Bulawayo-based law firm, is seeking a declaratory order on several issues, but first builds up his case, arguing:

“It is my sincere contention that the 1st respondent has failed to fulfil its constitutional obligation under section 131(2) as read with section 117(1) of the constitution to have the Constitution of Zimbabwe Amendment (No. 1) Bill, [H.B. 1A, 2017] presented in, and passed by the senate in accordance with the provisions of the constitution.

“The 1st respondent failed to fulfil its constitutional obligation under section 131(2) as read with section 117(1) of the constitution in the following manner:

“On the 24th of March 2021 the 1st respondent, through the senate,       passed a motion restoring the Constitution of Zimbabwe Amendment (No. 1) Bill, [H.B. 1A, 2017] to the order paper when  the said constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of the constitution upon the dissolution of the righth parliament.

“On the 6th of April 2021 the 1st respondent, through the senate, debated and passed the Constitution of Zimbabwe Amendment          (No. 1) Bill, [H.B. 1A, 2017] when the said Constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of the constitution upon the dissolution of the eighth parliament.

“In terms of section 167(2)(d) of the constitution this Honourable Court has the jurisdiction and power to determine whether the 1st respondent has failed to fulfil a constitutional obligation. This court application for declaratory and consequential relief is accordingly brought in terms of section 167(2)(d) of the constitution.”

In his application, Sithole further argues the amendment process violated the constitution and that was dangerous in a democracy.

“Our country is a constitutional democracy, meaning that the constitution is the supreme law and any law, conduct, practice or custom inconsistent with it is null and void to the extent of the inconsistency,” his application adds.

“I am also aware that in terms of section 2(2) of the constitution, the obligations imposed by the constitution are binding on every person, whether natural or juristic, including the State and all executive, legislative, and judicial institutions (which include this Honourable Court) and agencies of government at every level, and must be fulfilled by them.

“I am advised that this entails that parliamentary processes as well as decisions of this Honourable Court relating to such processes should find their basis in the Constitution. I am advised that if the 1st respondent makes a decision that violates a provision of the Constitution insofar as the conduct of its processes is concerned, and if this Honourable Court also makes a decision which is at odds with the provisions of the constitution, then all such processes and decisions would be a nullity to the extent of their inconsistency with the Constitution as the supreme law.”

The Sithole application then summarises the case and outlines the declaratory order sought.

“I am advised that the restoring and passing of the Constitution of Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] by the senate of the ninth parliament was incompetent in that the Constitutional Bill had lapsed by operation of section 147 of the constitution,” it says. 

 “Nothing can therefore arise from the passing by the senate of the ninth parliament of the Constitution of Zimbabwe Amendment (No. 1) Bill, [H.B. 1A, 2017] as the entire exercise of that legislative authority was constitutionally invalid, and even the assent to the Constitutional Bill by the 5th respondent in the circumstances would be of no moment.

“I am advised that if the 1st respondent desired to steer through the Constitutionof Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017], it should have commenced the process afresh in keeping with the procedures prescribed in section 131 of the Constitution.

“I am advised that anything other than the constitutionally prescribed process is of no consequence in that it could not bring about any lawful exercise by the 1st respondent of the legislative authority vested in it.”

As a result, the application says the amendment must be declared null and void.

“I therefore seek the declaratory orders and consequential relief in the following terms: It is declared that 1st respondent through the senate failed to exercise its legislative authority under section 131(2) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 in accordance with the constitution by passing a motion to restore the Constitution of   Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] to the order paper on the 24th of March 2021 when the said Constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of       the Constitution of Zimbabwe,” it says. 

“It is declared that 1st respondent through the senate failed to     exercise its legislative authority under section 131(2) of the Constitution by of Zimbabwe Amendment (No.20) Act, 2013 in         accordance with the Constitution by presenting and passing the Constitution of Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] on the 6th of April 2021 when the said Constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of the Constitution of Zimbabwe. 

“It is declared that all processes arising from the restoration and passage of Constitution of Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] by the senate on the 24th of March 2021 and the 6th of April   2021 are of no force or effect. The costs of suit to be paid by any respondent that opposes this application. I submit that I have made out a good case for the relief sought.”

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