Court dismisses Constitutional Amendment No 1


THE Constitutional Court yesterday ruled that the Constitutional Amendment No 1 of 2017, which sought to give President Emmerson Mnangagwa more powers in the appointment of the Chief Justice and his deputy, was unconstitutional.

By Desmond Chingarande

The amendment also sought to give Mnangagwa the powers to appoint the Judge President of the High Court in consultation with the Judicial Service Commission.

Zimbabwe made it first amendment to the Constitution adopted by a popular vote in 2013 through an Act published in an Extraordinary Government Gazette of September 7, 2017 to commence with immediate effect.

But in October, two MDC-T legislators, Innocent Gonese and Jessie Majome filed a constitutional application seeking the nullification of Parliament proceedings that led to the passing of the Constitutional Amendment Bill (No 1).

The lawmakers argued that when the process was done, the National Assembly and Senate were not fully constituted.

Justice Paddington Garwe yesterday upheld Gonese and Majome’s position, setting aside the amendment on the grounds that a two-thirds majority was not reached in Senate when the amendments were done.

“It is decided that the passing of the Constitutional Amendment Bill No 1 of 2017 by the Senate on August 1, 2017 was inconsistent with the provisions of s328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House,” Justice Garwe ruled.

“Constitutional Amendment Bill (No 1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order, but is suspended for a period of one hundred and eighty-eight days, subject to the provisions of paragraph 1(b).”

Justice Garwe added: “The court directed Senate to conduct a vote in accordance with the procedure for amending the Constitution prescribed by s328(5) of the Constitution within 188 days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No 1) of 2017 in paragraph (1) shall become final.”

Justice Garwe noted that there was no two-thirds majority in the Lower House when the amendments were made.

In their application, Gonese and Majome argued: “Parliament failed to fulfil the constitutional obligation defined in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No 1) of 2017 on July 25, 2017 and August 1, 2017 in the National Assembly and Senate respectively.”

Gonese accused then Vice-President Emmerson Mnangagwa, who was cited as the fourth respondent in the application, of rigging an election in Parliament, which resulted in the passing of the Bill.

“The net result is that the fourth respondent, the Minister of Justice (Mnangagwa), rigged an election in Parliament.”

The then MDC-T chief whip further said even some Zanu PF MPs, who were not in the House, were counted as being present and, as such, the whole process was marred by irregularities.

In the application, Parliament of Zimbabwe, Speaker Jacob Mudenda, Senate president Edna Madzongwe, Mnangagwa and the late former President Robert Mugabe were cited as respondents.