WAY from the previous article’s talk of the Supreme Court ruling where it upheld the High Court’s verdict rendering Nelson Chamisa an illegitimate leader of the MDC-T, the Constitutional Court in a case which started in 2017, made a ruling which was missed out on by many.
Guest Column by Thabani Mnyama
The Gonese & Anor v Parliament of Zimbabwe & 4 Others (CCZ 4/20. Const. Application Nos 57/17 & 58/17) was a case in which former legislators Jessie Majome and Innocent Gonese, alleged failure by Parliament to meet the constitutional procedural requirement as specified in section 328 of the Constitution, to pass a proposed constitutional Bill seeking to amend the Constitution.
Contrary to other schools of thought, the amendment of constitutions is not a problem, as these documents reflect the desires of the people and these evolve with time, therefore, the law should move at the same pace.
The Zimbabwean Constitution is imperfect and like all other constitutions world over, needs to be amended time and again to suit the desires of the people and to correct the limitations which exist in respect of the protection of human rights and civil liberties.
An important point to note, however, is that almost all amendments that have so far been made to the Constitution have actually further entrenched State power while undermining the protection of civil rights and liberties.
Some of these amendments were attempts to reverse judicial rulings which should be used as standards for constitutional conduct by the State.
Challenging Constitutional Amendment No 1 The applicants, (Gonese and Majome) sought to challenge the constitutional validity of the procedure which the first respondent (Parliament of Zimbabwe) took in passing the Constitutional Bill which intended to amend section 180 of the Constitution.
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This section deals with the procedure on the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court.
Added on was a provision relating to appointment of senior judges other Labour Court and the Administrative Court by the Chief Justice.
In a country like Zimbabwe, which is a constitutional democracy, there must be a clear separation of powers between the main branches of the government, namely, the Executive, the Judiciary and the Legislature.
Many a time, this line has been crossed without any challenge to such unconstitutional decisions. The applicants challenged the passing of the Constitutional Bill, by contending that the processes in both the National Assembly and the Senate were not adequately followed as required by the law in section 328 of the Constitution, which clearly outlines the process to be followed in amending the Constitution.
Sub-section (5) of section 328 stipulates that: “A constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House.”
The applicants contended that this was not followed as the minimum threshold of affirmative votes was not reached in passing the Bill in both the National Assembly and the Senate.
These cases were consolidated and heard as one.
The court in its finding concluded that in respect of the National Assembly, the applicants lacked evidence to support the allegation.
The applicants cited irregularities in the voting and violation of standing orders. The applicants also cited that some members who were not in Zimbabwe on the day were recorded as part of the members who voted in favour of the Bill.
According to the calculation by the applicants, there were only 171 votes in support of the Bill which is short of the required threshold of 180 votes in favour of the proposed amendment in the National Assembly. They further alleged that the Bill was passed in the Senate by 53 votes while the minimum threshold for the votes in favour was 54 votes. In their arguments, they relied on the unrevised Hansard.
In the opposing application, the first (Parliament of Zimbabwe), second (Speaker of the National Assembly) and third respondents (Senate president), argued that Parliament was not a legal persona, meaning before the law it could not sue nor be sued. The first and third respondents also argued that the threshold for a two-thirds vote in favour of the Bill was complied with.
The second respondent maintained that Standing Order 127 was not violated as all members present were moved into the chamber when the bells were rung. He maintained that he appointed tellers and divided the House by directing the “ayes” to go to the right and the “noes” to go to the left and then an objection was raised when the House had already been divided.
The applicants relied on the unrevised Hansard which had not captured everything that transpired. The revised Hansard and the audio recording showed that the voting was conducted properly.
The first and the second respondents relied on the journal of the House and alleged that the unrevised Hansard relied on by the applicants was corrected after a reconciliation with the audio recording.
In relation to the Senate, the third respondent opposed the application maintaining that the two-thirds minimum requirement of the votes was reached since membership of the Senate was reduced from 80 to 79 following the passing on of senator Alfina Juba on July 9 2017.
The court ruled that the applicants failed to show that the Constitutional Bill was not passed in the National Assembly in a manner prescribed by the Constitution.
They were, however, able to show that the Constitutional Bill failed to garner the requisite 54 votes needed for it to be passed in the Senate.
It is the duty of Parliament not to pass a Constitutional Bill in the Senate when the votes in favour of the proposed amendment are less than the required two-thirds of the membership of the House and Parliament is able to sue and be sued.
The court maintained that there was a violation of the Constitution therefore, in accordance with section 175 (6), it declared the law invalid as it was inconsistent with the Constitution.
The Senate was, therefore, directed to conduct a vote in accordance with the procedure for amending the Constitution as prescribed in section 328 (5) within 180 days of the order, failing which the declaration of invalidity of the Constitutional Amendment Bill (No 1) of 2017 shall become final.
This is a progressive ruling as it opens up Parliament to lawsuits for violation of the Constitution in the conduct of its business, which helps in strengthening democratic processes and ensuring that the Constitution as a document which is the supreme law of the land is not willy-nilly violated by any juristic person such as Parliament.
It was a win for constitutionalism, hopefully similar challenges to violations of the Constitution by a body of the State become the norm as we strengthen our rule of law and safeguard against the violation of the supreme law of the land.
