The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.Ultimately, the applicant ...
The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.
It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.
Ultimately, the applicant seeks an order that both be set aside following a declaration of invalidity.
THE PARTIES
The applicant herein, the Law Society of Zimbabwe (hereinafter 'the LSZ') is a statutory corporate body set up in terms of the Legal Practitioners Act [Chapter 27:07]. It is the body responsible for the welfare and regulation of and for representing the legal fraternity in the country. It is capable of suing and being sued in its own right.
The first respondent is the Parliament of Zimbabwe (“Parliament”), with the second and third respondents being the heads of the Senate and the National Assembly, respectively.
The third respondent (hereinafter the 'Speaker') has deposed to the opposing affidavit on behalf of Parliament and the second respondent.
The fourth respondent is the President of Zimbabwe (hereinafter referred to as the 'President'), and the fifth respondent is the Minister of Justice, Legal and Parliamentary Affairs (hereinafter referred to as the 'Minister').
The sixth respondent is the Attorney-General of Zimbabwe. He is the Chief Legal Adviser to the government and has deposed to the opposing affidavit on behalf of the fourth and fifth respondents as well as himself.
Mr. Mubaiwa appears as amicus curiae.
THE FACTS
Sometime in 2017, Parliament enacted the Constitutional Amendment No.1 Act after it had gone through both the National Assembly and Senate. Its promulgation was challenged in this Court on the premise that it had not been validly enacted.
On 31 March 2020, the Constitutional Court set aside the proceedings of the Senate of 1 August 2017 because a two-thirds majority had not been reached. The Senate was directed to conduct a vote by the procedure set out in section 328(5) of the Constitution within a prescribed period.
For reasons not germane to this dispute, the Senate could not conduct a vote and applied to the Constitutional Court for an extension of the time to do so.
On 6 April 2021, the Senate passed the Constitution Amendment No.1 Bill pursuant to an order of the Constitutional Court granting an extension.
The applicant contends, that, the Constitution Amendment No.1 Bill, alternatively, Constitution Amendment No.1 Act 2021, is invalid for the reason that Parliament failed to fulfil a constitutional obligation, in that:
(i) It passed the Constitution Amendment No.1 Bill 2017 in violation of section 147 of the Constitution;
(ii) It failed to follow the procedure set out in section 328 of the Constitution;
(iii) It acted contrary to its constitutional duty, under section 119 of the Constitution, in failing to protect the Constitution and promote democratic governance in Zimbabwe;
(iv) In conformity with its constitutional duty, under section 119 of the Constitution, it still needs to ensure that its provisions are upheld and that it acts constitutionally and in the national interest.
On 17 January 2020, Parliament gazetted the Constitutional Amendment No.2 Bill.
On 8 June 2020, Parliament notified the public, through the Clerk to Parliament, that the Portfolio Committee on Justice, Legal & Parliamentary Affairs was to conduct nationwide public hearings on the Constitutional Amendment (No.2) Bill. The dates scheduled in the notice were 15 to 19 June 2020.
The record shows that the hearings were conducted from 14 to 19 June 2020.
On 20 April 2021, Parliament passed the Constitutional Amendment (No.2) Bill of 2019.
The applicant contends, that, Parliament failed to comply with the provisions of section 328(4) of the Constitution in that it did not immediately invite members of the public, as required by the section, to express their views on the proposed Bill in public meetings.
The applicant contends, that, Parliament should have convened meetings or availed facilities for holding public meetings for the said consultations.
In this regard, the applicant argues that Parliament failed to fulfil a constitutional obligation.
Consequently, it seeks relief against Parliament only, in respect of both Constitutional Amendment No.1 Act and Constitutional Amendment No.2 Act, more specifically, an order declaring that both were promulgated in violation of the Constitution and are thus invalid.
The respondents have all filed papers opposing the application on various bases.
Parliament has raised preliminary points in its opposing papers.
Although the other respondents did not raise any preliminary objections in their sole opposing affidavit, counsel for the fourth, fifth and sixth respondents, has, in oral argument before the Court, set out several points in limine, which I will advert to hereunder before determining the merits of the application.
At the outset of the matter being heard, counsel for the applicant informed the Court, that, the applicant no longer relied on section 85 of the Constitution to seek relief. He submitted that the applicant did not seek an express declaration of rights. Therefore, the application would be solely based on the provisions of section 167(2)(d) of the Constitution in that, in respect of both matters, Parliament had failed to fulfil its obligations under the Constitution in the manner in which both Acts were passed into law.
The first, second, and third respondents have raised several points in limine, which they contend are dispositive of the application, thus obviating the need to determine it on the merits.
The fourth, fifth, and sixth respondents did not raise any objections in the opposing affidavit or their heads of argument. The objections were, however, raised in oral argument by counsel at the inception of the hearing.
They are all on points of law relating to the procedural aspects of the application, and, therefore, stand for resolution by the Court.
This is a trite position in our court system which requires, that, any issue placed before the court by the parties must be determined and a decision rendered in respect of the same.
OBJECTIONS IN LIMINE BY PARLIAMENT
The first objection raised by Parliament, the first respondent herein, is that the applicant lacks the required locus standi to approach this court for the relief sought.
Counsel for the first respondent argued, that, the concession by the applicant, that it was no longer proceeding under section 85 of the Constitution, left it without a cause of action.
Secondly, it is contended on behalf of Parliament, that, the matter is not properly before the Court.
In this regard, Parliament suggests, that, the challenge by the applicant, of both the Constitution of Zimbabwe Amendment No.1 Act and the Constitution of Zimbabwe Amendment No.2 Act, on the basis that the respondents have failed to fulfil a constitutional obligation, cannot be bundled up in one application. The obligations sought to be invoked are disparate and distinct.
A challenge to the alleged absence of jurisdiction on the part of the Court, raised in the opposing affidavit, was not motivated in the written submissions, nor was it moved in the oral argument.
I take the view that it has been abandoned.
The last objection is that the applicant has no causa for the relief it seeks from the Court.
Counsel for the first respondent submitted, that, the applicant conceded that the Constitution of Zimbabwe Amendment No.1 Act was promulgated pursuant to an order of court. It is the position of counsel for the first respondent, that, once the applicant accepted that the amendment was effected in compliance with an order from the Court, then, it cannot found a cause of action under section 167(2)(d) of the Constitution alleging that the respondents had failed to fulfil a constitutional obligation.
SUBMISSIONS ON BEHALF OF THE FOURTH, FIFTH AND SIXTH RESPONDENTS
Counsel for the fourth, fifth, and sixth respondents, submitted that the application was invalid.
This objection stemmed from the fact, that, in the founding affidavit, the applicant states that the application was premised on section 167(2)(d) as read with section 85 of the Constitution and Rule 27 of the Constitutional Court Rules 2016. He argued, that, the validity of the application was determinable at the date of filing at which stage the applicant had stated that it was proceeding in terms of the provisions stated above.
Counsel argued further, that, the Constitutional Court enjoys exclusive jurisdiction under section 167(2)(d) of the Constitution, and the joinder of an application under section 85 of the Constitution was impermissible.
In this instance, he argued, that, the combination of the two causes of action rendered the application a nullity.
The second objection related to the relief being sought.
He argued that the draft order was defective as it was unclear whether the Court was being asked to invalidate the Act or the Bill.
Regarding the issue of locus standi, counsel argued that the relief in the application was not sought in terms of section 85 of the Constitution. The applicant did not seek a declaratur that a fundamental right had been violated and that consequential relief be issued by way of redress. Consequently, the cause of action had failed to relate to the relief being sought from the Court.
SUBMISSIONS ON BEHALF OF THE APPLICANT
Counsel for the applicant made the following submissions in response:
Counsel submitted, that, the applicant had not sought an express declaration of a violation of a right enshrined in [Chapter 4] of the Constitution. As a result, he was no longer relying on section 85 of the Constitution for relief.
Instead, he would pray for an order to the effect that Parliament had failed to fulfil its constitutional obligation in passing both Constitutional Amendment Act No.1 and No. 2 and that, consequently, both are invalid and should be set aside.
Regarding locus standi, counsel submitted, that, the applicant had standing under the Legal Practitioners Act. He contended, that, the applicant had alleged that it had a substantial and direct interest in the matter, thus establishing its standing.
He argued further, that, his counterparts were misconstruing the principle in Mudzuri & Anor v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) and that instead of limiting standing, the authority extended the basis on locus for any approach to the Constitutional Court.
SUBMISSIONS BY THE AMICUS CURIAE
Mr. Mubaiwa, who appeared as amicus curiae at the behest of the Court, made the following submissions:
He suggested that the applicant had pleaded standing under section 85 of the Constitution. As a result, it was his view that its reliance on section 167 of the Constitution, for standing, did not pass muster.
He contended, that, the applicant must have pleaded standing under section 167 of the Constitution, but failed to do so. The abandonment of section 85 of the Constitution left the applicant needing locus standi to approach the Court.
He prayed that, as a consequence, the application should be dismissed.
Counsel for the applicant, in supplementary heads of argument filed in response to the written submissions of the amicus curiae, has raised a number of issues relating to the appointment of the amicus curiae, the terms of his appointment by the Court, whether it was good practice for the parties herein to express their views on the matter, and the importance for the Court not to follow a procedure that does not speak to the transparency of the process of appointment.
As regards the substance of the submissions by the amicus curiae, counsel contended, that, an amicus should not seek the dismissal of a matter. His contention was that the prayer by the amicus, for the dismissal of the application, was irregular.
The appointment of amicus curiae in proceedings before the Constitutional Court is provided for in the Constitutional Court Rules 2016.
Rule 10 of the Constitutional Court Rules provides as follows:
“10. Amicus curiae
(1) The Court may invite any person with particular expertise which is relevant to the determination of any matter before it to appear as amicus curiae, and, the amicus curiae so invited shall file heads of argument within the time stipulated by the Court.
(2) A person with the expertise described in subrule (1) may apply to the Court or a Judge for an order to appear as amicus curiae.
(3) An application in terms of subrule (2) shall be made no later than five days after the filing of the respondent's heads of argument or after the time for filing such heads of argument has expired, and shall —
(a) Describe the particular expertise which the applicant possesses;
(b) Describe the interests of the applicant in the proceedings;
(c) Briefly identify the position to be adopted in the proceedings by the applicant; and
(d) Set out the submissions to be advanced by the applicant, their relevance to the proceedings, and the applicant's reasons for believing that the submissions will be useful to the Court and different from those of the other parties.
(4) The Court or a Judge may, if it or he or she considers it to be in the interests of justice, grant the application upon such terms and conditions, including the date of filing the written argument, and with such rights and privileges as it or he or she may determine.
(5) An amicus curiae shall have the right to file heads of argument which raise new contentions which may be useful to the Court and do not repeat any submissions set forth in the heads of argument of the other parties.
(6) An amicus curiae shall be limited to the record on appeal, application, or referral and shall not add thereto.
(7) Except in the most exceptional circumstances, no order of costs shall be made either for or against any person appearing as amicus curiae.”
There is no suggestion by counsel that the appointment of the amicus was not done in terms of the rules of court.
Further, there is no suggestion, that, apart from praying for the dismissal of the application, the amicus associated himself in any other manner with any party in the dispute.
The role of amicus curiae was succinctly set out by GARWE JCC in Mushoriwa v Parliament of Zimbabwe & Anor CC04-23, wherein the learned judge said the following:
“[62] The role of amicus curiae invited by the court is to provide assistance in developing answers to difficult, and usually unsettled, questions of law.
He or she is there to provide cogent and helpful submissions that assist the court.
Amicus curiae can raise new contentions which he or she considers to be useful to the court and which contentions would otherwise not be drawn to the attention of the court. However, he or she cannot introduce new contentions that are not based on the record and which require fresh evidence.
In making submissions, amicus can choose a side it wishes to join unless requested by the court to urge a particular position. In other words, whilst the primary obligation of amicus curiae is to contribute new contentions to the court, there would be nothing amiss in amicus reiterating a party's submissions, so long as this is done colourlessly and objectively, without the impression of bias being given in favour of a particular party.
In this regard, attention may be drawn to the South African Constitutional Court decisions in Hoffman v South African Airways 2001 (1) SA 1 CC 2000 (11) BCLR 1211 (CC) at para 63; In Re: Certain amicus curiae applications; Minister of Health and Others v Treatment Action Campaign and Others (CC78/02) (2002) ZACC 13 95 July 2002).”
Similar remarks were also made by HLATSHWAYO JCC in Gonese v President of the Senate & Ors CC02-23. At paragraphs 21-23 the learned judge remarked thus:
“[21] An amicus curiae is, as of right, entitled to raise new contentions which he considers to be useful to the Court.
In Hoffmann v South African Airways 2001 (1) SA 1 (CC) at 27, para 63, the South African Constitutional Court observed, that, amici assist the Court 'by furnishing information or argument regarding questions of law or fact.'
Further, in In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign & Ors 2002 (5) SA 713 (CC) at para 5 it was observed:
'The role of an amicus is to draw the attention of the Court to relevant matters of law and fact to which attention would not otherwise be drawn…; an amicus has a special duty to the Court. That duty is to provide cogent and helpful submissions that assist the Court.'
An amicus curiae appearing upon invitation from the Court has a unique responsibility that is distinct from that of amici curiae appearing with the leave of the Court or appearing at the request of the Court to represent an unrepresented party or interest.
He or she is obliged to advance submissions that s\he considers useful to the Court with objectivity. He or she must advance a rational, legal, and logical argument of the position he or she urges the Court to reach.
An amicus curiae will not be faulted for reaching an incorrect conclusion of the law, although he likely will reach a correct conclusion by reason of his presumed disinterest.
An amicus curiae appearing upon the Court's invitation must be courteous to the Court and treat the actual litigants submissions with due consideration and respect. He or she must ride on his dis-interest to settle on legal positions and resist the temptation of subjectivism that the actual parties may, themselves, be wont to display. Finally, s\he must put themselves in the Court's position and wonder what conclusion he would have reached on the evidence available and the law.”
In casu, on closer examination, it seems to me that counsel's objections stemmed mainly from a perceived impression that the Court was obliged to consult the parties to the dispute on the decision to appoint amicus curiae and the identity of the person to be so appointed.
The suggestions from counsel imply, that, the court required the consent of the parties prior to inviting a person to appear as amicus.
The Rules are clear and unambiguous.
The decision remains that of the Court in the exercise of its inherent jurisdiction to control its processes.
The objection to the prayer by the amicus curiae, for the dismissal of the application, was well taken.
However, such prayer does not move the Court into reaching a conclusion to dismiss the application on that score alone. The Court is alive to the fact, that, the amicus is not a party to the dispute and that he or she cannot move for a particular relief. That is not the role of an amicus.
