TWO lawyer groupings, one in Harare and another in Bulawayo, are preparing to challenge the passing of the Constitution of Zimbabwe Amendment (No. 1) Bill in parliament last Tuesday, a move which potentially derails Chief Justice Luke Malaba’s controversial plan to extend his tenure.
The extension plan is linked to President Emmerson Mnangagwa’s 2023 re-election bid.
Malaba seemed on course for a politically and constitutionally problematic extension of his tenure after high-level official interventions and the passing of the Bill, which is now awaiting Mnangagwa’s assent.
Constitutional Amendment (No.1) Bill, among other things, seeks to allow the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without subjecting them to the open selection process and public interviews.
This will allow Mnangagwa to retain Malaba at the helm of the judiciary after the approval of Constitutional Amendment (No.2) Bill, which is set to be railroaded through parliament, to enable Malaba to serve when he is over 70.
The NewsHawks is however reliably informed that lawyers linked to Veritas in Harare and Abameli in Bulawayo will challenge the passing of the Bill on a number of fronts, including the supremacy of the constitution as enshrined in section 2. They will also argue that sections 147 and 328 of the constitution were violated in passing the Bill.
Malaba, by operation of law, ceases to be chief justice at midnight on 15 May when he turns 70.
The Bill was initially passed in August 2017 and published as law on 7 September 2017.
However, legislators Jessie Majome, who is now a Zimbabwe Anti-Corruption Commission commissioner, and Innocent Gonese challenged the process in the Constitutional Court, arguing the Bill should have been passed after two-thirds affirmative votes by membership of each house, in line with section 328 (5) of the constitution.
However, at its last reading in the Senate on 1 August 2017, it received 53 affirmative votes whereas the full membership of the Senate is 80. A two-thirds majority meant that at least 54 senators should have voted for the Bill.
The Constitutional Court sat on 31 January 2018 to hear the case, only to pass judgement 31 March 2020.
In a judgement written by Malaba, the court concurred that a two-thirds majority was not met in the Senate.
The Chief Justice and his colleagues, however, did not just make a simple declaration that the Bill had not been validly passed by Parliament – which would have meant that the resulting Act and anything done under it were also invalid.
Instead, it saw fit to suspend its declaration of invalidity for 180 days to allow the Senate to conduct another Third Reading which, again, is set to be challenged by lawyers.
The lawyers will argue that the Bill should have been declared null and void after failing to meet requirements of section 328 (5) of the constitution which requires a two-thirds majority for it to pass.
“They will also argue that section 147 of the constitution was violated when the Constitution of Zimbabwe Amendment (No.1) Bill was passed because it straddled two different lives of parliament, which is unconstitutional,” a lawyer said.
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.
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.”
When parliament, is dissolved all unconcluded bills are liquidated. If the executive wants to push through a Bill, it has to be first reintroduced in the new parliament.
However, with Constitution of Zimbabwe Amendment (No. 1) Bill, the executive picked up from where it had left in the life of the eighth parliament.
The violation of section 147 of the constitution was the main reason why Justice Anne-Marie Gowora gave a dissenting judgement when a three-judge ConCourt, also consisting of Justices Rita Makarau and Bharat Patel, heard a substantive application on 10 November 2020 by parliament before granting another extension in a judgement delivered on 26 February 2021.
While Makarau was in favour of granting a 90-day extension, Patel sat on the fence and said he agreed with both judges although crucially he leaned towards Makarau who argued that accepting that section 147 of the constitution was violated would question the constitutionality of the 31 March court order.
She said this would be inconsistent with the principle of finality of a Constitutional Court decision in a particular case.
Gowora ruled that parliament’s application was unconstitutional as it breached section 147 of the constitution.
“The order of invalidity as regards the Bill cannot be ignored. This is the first premise in the consideration of the application. It was adjudged as being invalid. That said, the Bill cannot be resuscitated through this application,” Gowora said.
“It lapsed by operation of law. The granting of the application in these circumstances would be inconsistent with the constitution.
“…For the above reasons, it is my view that the application should be dismissed with no order as to costs.”
Patel said he agreed with both judges although he crucially sided with Makarau. He however suggested that the violation of section 147 of the constitution could be challenged separately.
“I cannot but agree with Gowora AJCC that the supremacy of the constitution, as enshrined in section 2 of the constitution, dictates that any law, practice, custom or conduct that is inconsistent with the supreme law is invalid to the extent of the inconsistency. The ineluctable consequence of this principle is that anything done by Parliament that is contrary to the provisions of the constitution, including section 147, would be invalid and unconstitutional to the extent of such inconsistency,” Patel said.
“Nonetheless, in the particular circumstances of this matter, despite the clear substantive implications of section 2 of the constitution, I am inclined to concur with the predominantly procedural stance adopted by Makarau AJCC in the determination of this application. I do so for the following reasons and in accordance with the principles that she has fully and ably expounded.”
Patel said the order granted by the court on 31 March 2020 is a final order but suggested it can be reviewed in a separate matter.
“As such, it may only be reviewed or overruled by this court in a separate and distinct matter that might arise for determination in the future, where such departure is appropriate and justified. It cannot be departed from in the same matter, as is the case with the application before us, wherein the original cause of action has remained unaltered,” Patel said.
Lawyers will also strongly argue that the supremacy of the constitution was undermined by allowing section 147 of the constitution to be violated.
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