THE Parliament of Zimbabwe has conceded that President Emmerson Mnangagwa did not assent to the Constitution of Zimbabwe Amendment (No.1) Bill before it became an Act, paving way for a potentially intriguing legal battle with Law Society of Zimbabwe lawyers, fighting the President’s constitutional amendments designed to facilitate his power consolidation drive.
OWEN GAGARE
The LSZ, through its executive secretary Edward Mapara, in May 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. Mnangagwa was cited as the fourth respondent.
Parliament of Zimbabwe (first respondent), President of Senate Mabel Chinomona (second respondent), Speaker of the National Assembly Jacob Mudenda (third respondent) and Justice minister Ziyambi Ziyambi (fifth respondent) were also cited. The Amendment (No.1) Act enables the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without them undergoing public interviews.
The Amendment (No.2) Act allows judges of the Constitutional Court and the Supreme Court to continue to serve beyond the previous retirement age of 70, if the President, after consulting the Judicial Service Commission, consents to their doing so.
It also permits the President to promote judges of the High Court and the Supreme Court to a higher court on the recommendation of the JSC, without the need for public interviews, thereby opening the door to promotions and tenure extensions on the basis of political suitability and cronyism, as was the case with Chief Justice Luke Malaba.
The behind-the-scenes manoeuvres to extend Malaba’s tenure by hook or by crook were orchestrated by Mnangagwa – the ultimate beneficiary of the extension.
Mnangagwa needs Malaba to help him navigate possible constitutional and legal minefields ahead of the 2023 elections.
In its application, the LSZ sought an order declaring that the Constitution of Zimbabwe Amendment (No.1) Bill, 2017 (alternatively Constitution of Zimbabwe Amendment No.1 Act, 2021), passed by Parliament on 6 April was invalid. The LSZ noted that the President had not yet assented to the Bill.
“Should he subsequently do so, the grounds of invalidity remain the same, The Bill is invalid on the ground that Parliament failed to fulfil a constitutional obligation in that: It passed the Iapsed Constitution of Zimbabwe Amendment (No.1) Bill, 2017 (“Constitutional Bill No.1”) 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 Constitutional Bill (No.1).”
Section 147 states that, upon 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 the House 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 also challenged 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 read.
However, Speaker of the National Assembly Mudenda on behalf of Parliament argued in his opposing affidavit that there was no need for Mnangagwa to assent given that former president Robert Mugabe had already assented to the Bill.
“The 1st respondent did not present the Constitutional Amendment Bill to the 4th respondent (Mnangagwa) for re-assent as alleged, as the former President had already assented to the Act,” Mudenda said.
“The Constitutional Amendment Bill (No.1) of 2017 became law on the 7th September 2017, long before the dissolution of the eighth Parliament- hence the Bill was not pending before Parliament on the 29th of July and for this reason, it did not lapse, as alleged or at all.
“The Act was not a Bill pending before Parliament on the dissolution of the 8th Parliament as alleged. This Court only suspended the declaration of invalidity on condition that the Senate complies with its order in terms of Section 175 (6) (b) of the Constitution. Otherwise, the said Act was not set aside. In any event, the declaration of invalidity was going to take effect from the date of judgement, being the 31st of March 2020 and not before.”
The LSZ is arguing that the admission was confirmation of a “clear violation of section 328[10][b] of the Constitution which requires that a certificate from the President of the Senate, that at its final vote in the Senate the Bill received the affirmative votes of at least two-thirds of the membership of Senate, be presented to the President for assent and signature.”
“The assent of the former President was obtained on basis of an invalid certificate as there was no affirmative vote of two-thirds of Senate in the 8th Parliament. That assent and Signature, following as it did upon an invalid certificate, could not enact the Bill then in 2017. The President can only assent to a Bill that has been passed constitutionally by Parliament,” the LSZ argued in its answering papers filed on Tuesday.
“This Court has already held that the Senate vote was unconstitutional as it fell short of the two-thirds requirement. This Court returned a Constitutional Bill to be voted upon. It can only become an Act through an assent given by the President after the constitutional vote.”
The LSZ further argued that the Senate of the 9th Parliament could not constitutionally pass a Bill that had not been passed by the National Assembly of the 9th Parliament.
“It is a jurisdictional fact,” the LSZ said.
The LSZ said there was an important constitutional principle behind section 147 of the constitution.
It said the requirement that on dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses is intended to ensure that with each general election, the new Parliament and the government are to introduce their own agenda.
The Bill was initially gazetted on 3 January 2017 after the nullification of general notice 434 of 2016, which was published in the extraordinary gazette on 23 December 2016.
It was then introduced to the House of Assembly later in 2017 and passed on 25 July 2017.
Senate passed it on 1 August 2017, but failed to garner the required two-thirds majority in terms of section 328 (5). On the day, 53 senators out of the total membership of 80 voted. That was one vote short of two-thirds.
However, senate fraudulently claimed it had met the two-thirds majority threshold since one seat was vacant and the Upper House then had 79 members, which equalled two thirds. But the law required at least 54 votes to pass the Bill, not 53.
As a result, legislators Jessie Majome, now a Zimbabwe Anti-Corruption Commission commissioner, and Innocent Gonese challenged the process at the ConCourt, arguing the Bill should have been passed after a two-thirds affirmative vote by members of each House, in line with section 328 (5) of the constitution. The ConCourt heard the consolidated case on 31 January 2018, but only passed judgment on 31 March 2020.
In the judgement written by Malaba, the court concurred that a two-thirds majority was not met in the Senate, while dismissing the allegation that a two-thirds majority was not secured in the National Assembly.
On 25 September 2020, parliament lodged two simultaneous applications at the ConCourt, a substantive application seeking an extension to the 180-day period, and an urgent ex parte chamber application for a provisional order extending the 180-day period and also suspending the coming into effect of the court’s declaration of the invalidity of the Bill.
The ex parte order was granted on 28 September, paving way for the substantive application to be heard by Justices Rita Makarau, Anne-Marie Gowora and Bharat Patel.
On 25 February 2021, the ConCourt granted a 90-day extension to the Senate by a 2-1 decision and, on 24 March, the Senate approved a motion by Justice, Legal and Parliamentary Affairs minister Ziyambi to restore the Bill to the Order Paper.
It was passed on 6 April, but Mnangagwa did not assent to it, hence the current legal battle.
Parliament is arguing that the amendments were procedurally done and that adequate consultations were done with members of the public.
