Constitutionality of Statutory Provisions re: Constitutional Provisions

CC08-19 : WILLIAS MADZIMURE and SEKAI HOLLAND and OTHERS vs PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

The applicants alleged that the conduct of the Speaker and the President of the Senate, in “expelling” them from Parliament, infringed their fundamental right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution. They also alleged a violation of the right to form, join and participate in the activities of a political party of their choice in terms of section 67(2)(a); the right to stand for election for public office, and, if elected, to hold such office in terms of section 67(3)(b); the right to administrative justice in terms of section 68; and the right to a fair hearing in terms of section 69(3) of the Constitution.

The respondents opposed the applications. They argued that the conduct of the Speaker and the President of the Senate, in announcing that the seats occupied by the applicants in the respective Houses had become vacant, was lawful….,. The respondents' contention was that the seats became vacant as a result of the operation of the provisions of section 129(1) as read with section 129(1)(k) of the Constitution.

Section 129 of the Constitution provides:

“129 Tenure of seat of Member of Parliament

(1) The seat of a Member of Parliament becomes vacant -

(a)–(j)…,.(not relevant);

(k) If the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the Member has ceased to belong to it.”…,.

The ancillary question is whether an act done in terms of the provisions of the Constitution can violate a person's rights in terms of the same Constitution. The question is answered in the negative. An act lawfully done in terms of the Constitution cannot violate a person's rights under the same Constitution.

The applicants sought to challenge the validity of the actions by the Speaker and the President of the Senate on the basis of the allegation that they violated the fundamental rights enshrined in sections 69(3), 68(1) and 56(1) of the Constitution.

A Member of Parliament loses his or her seat in the specific circumstances prescribed under section 129 of the Constitution. Section 129(1)(k) of the Constitution provides for one of the circumstances prescribed. One cannot read any other value into the section because section 129(1)(k) of the Constitution is a complete provision that is not subject to the Bill of Rights. The wording of section 129(1)(k) of the Constitution is clear. Like any other provision of the Constitution, section 129(1)(k) is a fundamental law, partaking of the status of supremacy of the Constitution against which the validity of conduct can be measured. It is not permissible to import notions from other constitutional provisions to impose a duty that was not intended to be part of the requirements of a particular constitutional provision.

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

Section 328(5) of the Constitution is not in conflict with any other provision of the supreme law. The matters it regulates are exclusive to its provisions.

CC04-18 : GABRIEL SHUMBA and SIBONILE MFUMISI and DARLINGTON NYAMBIYA vs MINISTER OF JUSTICE and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

Counsel for the first, fourth, fifth and sixth respondents argues that there is a presumption of coherence of the Constitution and the provisions of the Constitution should not be read in isolation....,.It is important to note, as stated in the case of Rushesha and Others v Dera and Others CC24-17, ...

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CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is an appeal against the entire judgment of the High Court, sitting at Harare, in which it dismissed a constitutional application placed before it.

The appellants approached the court a quo seeking an order that section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] (hereinafter the “Communal Land Act”) be declared ultra vires the Constitution of Zimbabwe 2013 (“the Constitution”).

The application was prompted by a series of legal instruments passed by the Government which gave notice of the setting aside of 12,940 hectares in the administrative district of Chiredzi, initially for 'lucerne production.' A subsequent statutory instrument altered the purpose of the reservation of the area to an “irrigation scheme.”

The court a quo did not find merit in the application. It held that there was nothing unconstitutional with the provisions of sections 4 and 6 of the Communal Land Act. It accordingly dismissed the application.

Irked by that decision, the appellants appealed to this Court in terms of section 175(4) of the Constitution.

FACTUAL BACKGROUND

The appellants in this matter are members of the Hlengwe Shangani ethnic group. They are peasant farmers who occupy tracts of land in the Chilonga area in Chiredzi. They practise mixed farming. The community occupies the south-eastern Lowveld of Zimbabwe, particularly areas bordering or falling within Chikombedzi, Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi, and Triangle. The land in question falls along the Save, Runde, and Limpopo Rivers. The same ethnic group also occupies parts of Mozambique and South Africa. It claims occupation of the land in question well before the advent of colonialism in the 1890s.

The first and second respondents are Cabinet Ministers responsible for the administration of the Ministry of Lands, Agriculture, Water, Climate, and Rural Settlement and the Ministry of Local Government and Public Works, respectively.

The third respondent is the President of the Republic of Zimbabwe (hereinafter referred to as the “President”) with the fourth respondent being the State's principal legal advisor (Attorney General of Zimbabwe).

On 26 February 2021, a statutory instrument, S.I.50/21, was published by the Minister of Local Government, Urban, and Rural Development, giving notice, that, acting in terms of section 10 of the Communal Land Act, he had set aside 12,940 hectares in the district of Chiredzi for lucerne production. On the same date, the President, acting under section 6 of the Communal Land Act, published S.I.51/21, giving notice that a piece of land in extent of 12,940 hectares had been set aside from the district of Chiredzi.

It is common cause that the two legal instruments contained errors.

The first, S.I.50/21, cited the wrong Minister as the administrative authority. This was corrected by the publication of S.I.63A/21 on 9 March 2021 which cited the Minister of Local Government and Public Works. In addition, the purpose for the setting aside of the 12,940 hectares was altered from that of lucerne production to an irrigation scheme. On the same day, the President published S.I.72A/21. The Statutory Instrument repealed S.I.51/21and gave notice, that, the President, acting in terms of section 10 of the Communal Land Act, had set aside a piece of land in extent of 12,940 hectares in the district of Chiredzi for the setting up of an irrigation scheme.

Feeling threatened by the imminent reservation of land within their area of habitat, the appellants applied to the High Court (“the court a quo”) impugning the constitutional validity of section 4 and section 6(1)(b) of the Communal Land Act.

The first appellant averred, that, the land that had been set aside, in extent 12,940 hectares, formed a significant part of their ancestral lands. He averred, that, the land was part of their ancestral heritage and that the Hlengwe-Shaangani communities had inhabited the area for over half a millennium. He averred, that, given the length of time the community had been in occupation of the same, they could not be dispossessed of the land at the mere whim of the respondents, and that, as a result, the reservation of the identified piece of land impacted on their fundamental human rights.

The first appellant listed the fundamental rights contained in sections 51, 48, 71, 63 and section 56(1) of the Constitution of Zimbabwe as being violated by the respondents actions. He asserted that sections 4 and 6(1)(b) of the Communal Land Act were the offending sections that enabled the violation of their fundamental rights.

Section 4 of the Communal Land Act was criticized as unconstitutional and labelled a relic from the colonial era that reinforced the notion that Africans could not own or vindicate property rights. The first appellant challenged the status quo, which he alleged prevented “indigenous peoples” from owning property rights to their ancestral homes in communal areas. Section 4 of the Communal Land Act was further impugned as being discriminatory due to the absence of private individual ownership rights for inhabitants of communal lands.

He averred that section 6(1)(b) of the Communal Land Act enabled the excision of portions of communal land by the third respondent (the President of the Republic of Zimbabwe) and that this provision breached the property rights enshrined in section 71 of the Constitution. He tied this breach to the right to life as protected by section 48 of the Constitution. Furthermore, he asserted that the prospective loss of their ancestral land would negatively impact on their right to dignity, which he tied to their ancestral land.

The first appellant averred that their right to practise their culture, under section 63 of the Constitution, would be affected by their forced relocation from their ancestral lands. He posited that this also violated their dignity. He stated that the impugned provisions violated their community's fundamental human rights as enshrined in the Constitution.

The appellants categorized the application before the court a quo as an attempt to reverse two hundred years of colonialism. The first appellant alleged, that, there existed inconsistencies in the system of land tenure in that the law had permitted the expropriation of commercial farmland from white farmers through the Land Reform Programme, and yet, in contrast, the communal land ownership system remained intact. He asserted that section 6(1)(b) of the impugned Act enabled the expropriation of communal land without any due process and compensation.

He submitted, that, the evolution of the Communal Land Act from the purported racist Land Apportionment Act and the Tribal Trust Land Act are regarded as incontrovertible evidence of its unconstitutionality. He reiterated that the impugned sections were discriminatory as they breached the appellants right to equal protection of the law enshrined in section 56(1) of the Constitution.

He stated that the land was a source not only of their food but their medicine as well. He averred that the proposed irrigation scheme was dubious, and he felt it was just an excuse to scout for mineral deposits in the area. The first appellant also insisted that the true purpose of their displacement was to pave the way for lucerne production in favour of a company named DenDairy (Pvt) Ltd.

In addition, the first appellant averred that there was no prior consultation with the local people by the third respondent before the exercise of the prerogative under section 6(1)(b) of the Communal Land Act. This was said to be a breach of the Administrative Justice Act [Chapter 10:28] and, consequently, section 68 of the Constitution.

He, therefore, sought a retrospective order nullifying the notices published by the respondents earlier in the year....,.

The Court noted, that, the appellants had not sought to impugn section 10 of the Communal Land Act and whether there existed a cause of action in the matter due to the failure to attack the particular statutory instrument that set aside the appellants land.

Counsel for the appellants submitted, that, despite the first respondent's use of section 10 of the Communal Lands Act in setting aside land for an irrigation scheme there was a cause of action before the Court. He argued, that, at the relevant time of filing in the court a quo, there were three statutory instruments in terms of which the first respondent had acted when he set aside the land in contention.

Counsel for the appellants advanced, that, there thus was a sufficient basis for challenging the constitutionality of sections 4 and 6 of the impugned Act....,.

Counsel for the respondents argued, that, communal land is vested in the President, who has the authority to permit land usage within the confines of the Communal Land Act.

As a consequence, she submitted that all the procedures were followed.

She contended, that, the appellants failure to impugn section 10 of the Communal Lands Act left them bereft of a cause of action....,.

In conclusion, she submitted that the law currently vests all communal land in the President, who may set aside part of such land under the provisions of the Communal Land Act, was beyond dispute.

She argued that whether or not that land should no longer remain vested in the President, and title given to communal land occupants, is a matter for the executive and Parliament.

She accordingly moved for the dismissal of the appeal.

ISSUES FOR DETERMINATION

The appellants have raised five grounds of appeal. However, from those grounds, only three arise issues for determination:

(i) The first is whether or not the court a quo erred in failing to find that sections 4 and 6 of the Communal Land Act were unconstitutional, as contended by the appellants. Aligned to this is whether the appellants claim to a right to property under section 71 of the Constitution is well founded.

(ii) The second is whether or not the court a quo correctly found that the matter was one of policy and entirely in the hands of the executive and the legislature.

(iii) The third and last issue is whether or not the court erred in concluding that the provisions were reasonable and justifiable in a democratic society, and, thus, did not violate the appellants constitutional rights as alleged....,.

The appellants have alleged a violation of several provisions of the Constitution.

In considering the impugned legislative provisions, the task of the Court is to interpret the Constitution to safeguard and guarantee the protection and enforcement of enshrined fundamental rights under Chapter 4. Accordingly, the Court must adopt an approach that results in an expansive and broad interpretation of the provisions that protect human rights....,.

Consequently, the Court must consider and interpret all relevant provisions to give effect to the objects of the Constitution and best serve its interest and purpose....,.

Following up on the test established in In Re Munhumeso & Ors 1994 (1) ZLR 49 (S), a guiding tool for the Court was found in the case of Kawenda v Minister of Justice, Legal & Parliamentary Affairs & Ors CC03-22. In that case, MAKARAU JCC stated the following:

“There is an expansive body of jurisprudence from this jurisdiction and beyond on the approach that a court must take when determining whether a statute or other law is in conflict with the Constitution.

One begins with an interpretation of the relevant provisions of the Constitution. The purpose of interpreting the Constitution first is to set the framework, the backdrop, or the yardstick against which the impugned law will then be examined or measured. One starts with a discernment of the law: see Zimbabwe Township Developers (Pvt) Ltd v Lous Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC) at 383F; and Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC09-18.

In interpreting the constitutional provisions, the ordinary rules of interpretation of statutes apply. The Constitution is but a statute.

It is however settled, that, in interpreting constitutional provisions, the preferred construction 'is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose.' See Rattigan and Others v The Chief Immigration Officer and Others 1994 (2) ZLR 54. See also Smythe v Ushewokunze and Another 1997 (2) ZLR 544 (S).

In particular, when interpreting provisions that guarantee fundamental rights, the widest possible interpretation is adopted to give each right its fullest measure or scope.

After interpreting the appropriate provisions of the Constitution, one then presumes that the impugned law is constitutionally valid.

The presumption of constitutional validity serves, firstly, to place the onus on whoever is alleging invalidity to prove such invalidity, and, secondly, and, equally important, to guide the court in interpreting the impugned law in favour of validity where the piece of legislation is capable of two meanings. The presumption holds that where a piece of legislation is capable of two meanings, one falling within and the other falling outside the provisions of the Constitution, the court must perforce uphold the one that falls within.

The presumption in favour of constitutionality is entrenched in our law.

As the next and final logical step, the Court must then examine the effect of the impugned law on the fundamental right or freedom in question. If the effect of the impugned law is to abridge a fundamental right or freedom or is inconsistent with the provisions of the Constitution providing for the right or freedom, the object or subject matter of the impugned law will be less important or irrelevant: see In re Mhunhumeso 1994 (1) ZLR 49 (S).

If the court finds the impugned law to infringe upon a fundamental right or freedom or to be inconsistent with the provisions of the Constitution on a fundamental right or freedom, the court must proceed to determine whether the infringement or inconsistency is permissible in terms of section 86(2) of the Constitution.”

The remarks of MAKARAU JCC are apposite.

The steps to be followed have been settled and it will not add value to the above remarks to make any further comment. I will therefore proceed accordingly.

I commence with the claimed rights of ownership.

RIGHT TO OWNERSHIP UNDER SECTIONS 71 AND 72 OF THE CONSTITUTION

It seems to me that the fundamental rights upon which the appellants base their claim for breach of the Constitution have their genesis in an alleged right to ownership over the piece of communal land which the appellants occupy that has been set aside under the Communal Land Act. The right is claimed under section 71 of the Constitution. The appellants link the rights to dignity and life premised on the right under section 71.

An applicant who alleges a violation of a fundamental right must establish the existence of the right, that the provision under which the right is claimed applies to the applicant, and that the respondent has violated the right.

The appellants have alleged that they own the land they occupy in their affidavits. They allege that their right to ownership of this land is guaranteed under section 71(2) of the Constitution and they contend that this right has been violated by the setting aside of 12,940 hectares of the land they occupy. They aver that the vesting of the land in the President has violated this right to ownership. Furthermore, they claim the right to ownership due to continued occupation for several hundred years before the incidence of colonialism.

As a consequence, it seems to me that section 71 of the Constitution is the premise upon which all the other claimed rights must flow from. It is the provision that must inform the Court of the existence of the other alleged rights.

It is only logical that the inquiry into the dispute commence with an examination of section 71 of the Constitution and what rights it provides for and protects. That section provides, in relevant part, as follows:

“71 Property Rights

(1) (not relevant)

(2) Subject to section 72, every person has the right, in any part of Zimbabwe 'to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property, either individually or in association with others.'”…,.

Since the rights enshrined under section 71(2) of the Constitution are subject to section 72, before the Court can determine whether or not the appellants can claim a right under section 71(2), the Court inevitably must construe the provisions of section 72 of the Constitution.

In casu, the Constitution has made section 72 of the Constitution the dominant provision, and, the two sections must be construed together.

This is in tandem with the canons of interpretation that a court must construe all the relevant provisions of the Constitution to arrive at an interpretation that best serves the objects and interests of the Constitution.

Accordingly, the right to ownership of the land claimed by the appellants under section 71(2) of the Constitution must be construed in light of the provisions of section 72.

The section provides as follows:

“72 Rights to Agricultural Land

(1) In this section —
'agricultural land' means land used or suitable for agriculture, that is to say, for horticulture, viticulture, forestry, or aquaculture or for any purpose of husbandry, including —
(a) The keeping or breeding of livestock, game, poultry, animals, or bees; or

(b) The grazing of livestock or game; but does not include Communal Land or land within the boundaries of an urban local authority or within a township established under a law relating to town and country planning or as defined in a law relating to land survey;”…,.

The appellants seek to assert rights under the Bill of Rights in respect of ancestral land located within the country's rural areas.

The appellants claim that they survive on the land for all aspects of their livelihood.

This is not in dispute; their land use is in keeping and in accord with the law. As such, it is land that serves many purposes for the community that occupies it. It is where their residences are located. It is also land upon which the community farms and is thus a source of livelihood.

They aver that some of the inhabitants do contract farming for Delta Beverages Corporation and some are cotton producers.

Finally, when regard is had to the meaning ascribed to “agricultural land usage” their land constitutes farmland in that it is land used for agriculture, including the keeping of animals, whether domestic or wild, poultry, and all other facets that go with agricultural land.

Section 72 of the Constitution provides that land located in a communal land or within the boundaries of an urban local authority or a township is expressly excluded from the definition of what constitutes agricultural land.

It seems to me, that, section 72 of the Constitution has not provided for the right to occupy or use agricultural land.

What it has done in subsection (1) is to delineate what constitutes agricultural land. Most importantly for this dispute, section 72 of the Constitution has stated explicitly that rights to agricultural land in communal areas are to be governed by the Communal Land Act.

The appellants have not, either before this Court or even the court a quo, made any attempt to establish the alleged violation of the right sought to be relied on under section 71 of the Constitution.

They have also not linked their alleged right of ownership to the provisions of section 72 of the Constitution.

All that they contend is that the impugned provisions of the Communal Land Act continue to serve a colonial construct denying local indigenous people proprietary rights to land, which they allege are enshrined under section 71 of the Constitution.

Given that the land in issue is communal land, it is governed by the Communal Land Act and the right they assert is specifically to be found in that Act.

I am persuaded that the Constitution itself has excluded, in specific terms, a right to own land under section 71 of the Constitution for communal land dwellers except for the specific rights of occupation and ownership spelt out in the Communal Land Act itself.

In turn, despite section 71 of the Constitution being subject to section 72, section 72 of the Constitution has not spelt out any provisions related to communal land rights. This means, that, to assert a right under section 71 as read with section 72 of the Constitution, regard must be had to the Communal Land Act itself.

Therefore, this Court must construe all provisions relating to the occupation, use, and deprivation of land provided in the Communal Land Act. In my view, sections 4, 6, 8, 9, 10, and 12 of the Communal Land Act are relevant and pertinent in establishing the rights of dwellers in communal land.

These sections, in my view, confirm or lay to rest the allegations by the appellants of the violations of their fundamental rights on the implementation or exercise of statutory power by the President and the second respondent (Minister of Local Government and Public Works) respectively.

I therefore proceed to consider the law relating to their right to occupy land in communal areas.

RIGHTS OF OCCUPATION UNDER THE COMMUNAL LAND ACT

I start the inquiry by examining section 8 of the Communal Land Act. That section reads as follows:

“8. Occupation and use of Communal Land for agricultural or residential purposes

(1) Subject to this Act and the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, a person may occupy and use Communal Land for agricultural or residential purposes with the consent of the rural district council established for the area concerned.

(2) Subject to subsection (3) and the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, when granting consent in terms of subsection (1), a rural district council shall —

(a) Where appropriate, have regard to customary law relating to the allocation, occupation, and use of land in the area concerned; and

(a1) Consult and co-operate with the chief appointed to preside over the community concerned in terms of the Traditional Leaders Act [Chapter 29:17]; and

(b) Grant consent only to persons who, according to the customary law of the community that has traditionally and continuously occupied and used land in the area concerned, are regarded as forming part of such community or who, according to such customary law, may be permitted to occupy and use such land:

Provided that, if no community has traditionally and continuously occupied and used land in the area concerned, the district council shall grant consent only to such class of persons as the Minister, by notice in writing to the district council, may specify.

(3)…,. n/a

(4)…,.n/a

(5)…,.n/a

(6) Where a rural district council is established for any area of Communal Land or any area of Communal Land is incorporated within the area of a rural district council, any person lawfully occupying or using land in such area for agricultural or residential purposes on the date of such establishment or incorporation, as the case may be, shall be deemed to have obtained the consent of such rural district council for the purposes of subsection (1).”…,.

Thus, section 8 of the Communal Land Act gives rights of occupation to community members that have occupied the land, traditionally and continuously, for extended periods.

My reading of the section leads me to conclude, that, a community member in occupation of such land only has to prove that he or she is a member of a community that has traditionally and continuously been in occupation of such land.

That established an entitlement to occupation.

All that is required is that the person is part of a community that has continuously and traditionally occupied the land.

However, a community must have services through schools, churches, hospitals, and other amenities.

The law provides the grant of permits for occupation by persons or parties who are not part of the traditional dwellers. The provision that permits such rights is found in section 9 of the Communal Land Act. It provides:

“9. Permits to occupy and use Communal Land

(1) A rural district council may, with the approval of the Minister, issue a permit authorizing any person or class of persons to occupy and use, subject to the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, any portion of Communal Land within the area of such rural district council, where such occupation or use is for any of the following purposes —

(a) Administrative purposes of the State or a local or like authority;

(b) Religious or educational purposes in the interests of inhabitants of the area concerned;

(c) Hospitals, clinics, or other such establishments for the benefit of inhabitants of the area concerned;

(d) Hotels, shops, or other business premises;

(e) Any other purpose whatsoever which, in the opinion of the rural district council, is in the interests of inhabitants of the area concerned;”

Although the word “permit” has not been defined in the Communal Land Act, section 2 defines use as:

“use, in relation to Communal Land, includes the erection of any building or enclosure, ploughing, hoeing, the cutting of vegetation, the depasturing of animals or the taking of sand, stone or other materials therefrom.”

This definition accords with the purposes or definition of agricultural land in section 72 of the Constitution.

The appellants occupy land that they utilise both for agricultural and residential purposes. Their right to occupy, as a community, can only be in accordance with section 8 of the Communal Land Act.

A perusal of the section reveals that the law recognizes the right of a community to occupy communal land that such a community has occupied continuously. It does not define the amount or length of time for such occupation.

When regard is had to section 71(1) of the Constitution, it becomes clear that the provisions of section 8(1) of the Communal Land Act are not only consistent with, but give effect to the right to property being claimed by the appellants.

That right is not restricted to ownership. It is broader than ownership. It is the right to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property.

The suggestion by the appellants that the right in section 71 of the Constitution is strictly that of individual private ownership of land, wherever situate, is not borne out by the text of the constitutional provision being relied on.

The appellants do not challenge the right accorded under the governing Act.

They do not suggest that this right is not in accordance with that enshrined under section 71(2) of the Constitution or that they are not permitted to acquire, hold, use, transfer, hypothecate, lease, or dispose of land within the boundaries of communal land.

It is apparent from the above, that, the occupation of communal land is entirely consistent with the occupation of agricultural land under section 72 of the Constitution.

An occupier requires permission or consent from an authority duly empowered by an Act of Parliament.

Thus, there is no discernible difference between an occupier of communal land and an occupier of agricultural land. This is because both classifications of land are vested in the State.

The further contention by the appellants, that the right in section 71 of the Constitution relates to individual ownership of property, is incorrect.

Individuals or persons can exercise the right in association with others.

In terms of section 8(2)(b) of the Communal Land Act, the right of a community that has traditionally and continuously occupied land located in communal lands is guaranteed by the denial of permits of occupation to persons who have not continuously and traditionally been in occupation thereof.

In addition, it is clear that section 8(2)(a) and (b) of the Communal Land Act accord preference to the customs of the community that has been in occupation.

The special provision ensures that a rural district council, in granting consent to dwellers, must have regard to customary law.

Therefore, the customs of a community take precedence when the local authority is making decisions affecting the community itself. In addition, where a community has been in continuous occupation of communal land, a district council shall deem that such community has the appropriate consent to occupy the same.

It, therefore, stands to reason that the same meaning should be ascribed to the word permit in section 8 of the Communal Land Act.

Consequently, contrary to the position adopted by the appellants, the rights they claim are fully protected under sections 8 and 9 of the Communal Land Act. The Act is not inconsistent with the Constitution, as suggested by the appellants. A careful reading of section 8(2)(b) of the Communal Land Act, taken as a whole, establishes that the law has been crafted to protect the community's rights to occupy communal land....,.

The preamble to the Communal Land Act reads:

“AN ACT to provide for the classification of land in Zimbabwe as Communal Land and for the alteration of such classification; to alter and regulate the occupation and use of Communal Land; and to provide for matters incidental to or connected with the foregoing.”

In turn, section 4 of the Communal Land Act, which is the provision at the centre of this litigation, reads:

“4. Vesting of Communal Land

Communal Land shall be vested in the President, who shall permit it to be occupied and used in accordance with this Act.”...,.

The Regional Town and Country Planning Act [Chapter 29:12] defines what ownership, as it pertains to property, means. An owner means:

“(a) In the case of land which is vested in the President —
(i) If it is not Communal Land, the Minister responsible for the administration of the land concerned; or
(ii) If it is Communal Land, the Minister responsible for the administration of the Communal Land Act [Chapter 20:04];

(b) In the case of land which is not vested in the President —
(i) The person who is registered in the Deeds Registry as the owner of the property; or
(ii) A local authority or a statutory body to which the ownership of the property has been transferred or vested by any enactment; or
(iii) The person lawfully holding the property in accordance with any enactment or agreement with the State or a local authority or a statutory body which entitles that person to obtain title thereof on the fulfilment by him of the conditions fixed by or in terms of such enactment or agreement; and includes —

A. The legal representative of a person referred to in subparagraph (i) or (iii) of paragraph (b) who has died, has become insolvent, is a minor, is of unsound mind or is otherwise under disability; or

B. The liquidator of a company which is a person referred to in subparagraph (i) or (iii) of paragraph (b).”...,.

Section 4 of the Urban Councils Act reveals that land, unless excised to a council, is vested in the President.

Accordingly, the pertinent provisions of section 4 of the Urban Councils Act are set out hereunder and read as follows:

“4. Provisions relating to establishment, alteration or abolition of municipalities, towns, councils and council areas

(1) Whenever the President considers it desirable, he may, subject to this Act, by proclamation in the Gazette, after any local authority concerned has been consulted, establish a municipality or town and —
(a) Shall establish a municipal council or a town council, as the case may be, therefor; and
(b) Shall fix the area of the municipality or town; and
(c) Shall assign a name to the municipality or town; and
(d) May, after consultation with the Commission, divide the council area into any number of wards.

(2) At any time after the establishment of a council, the President may, subject to this Act, by proclamation in the Gazette, and after consultation with the council and (in relation to the division or redivision of the council area into wards) the Commission —
(a) Alter the name of the municipality or town;
(b) Divide or redivide the council area into any number of wards, create one or more additional wards, alter or abolish one or more wards or abolish the division of the council area into wards;
(c) Alter the boundaries of the council area by adding thereto and additionally, or alternatively, subtracting therefrom any area, determine any question arising therefrom and redefine the council area:
(d) Abolish the municipality, town or council.

(3) Where a municipality or town is abolished or the whole or any part of the area of a local authority is included in a council area or a separate council is established for that area, the President shall —
(a) Make such transfer, disposal or apportionment of property, assets, rights and liabilities; and
(b) n/a

(4) n/a

(5) n/a

(6) Where the President has —
(a) In terms of subsection (3) transferred or apportioned any property or assets to a municipality or town, the ownership of such property or assets shall vest in that council with effect from such date as may be specified by the President, and, in the case of immovable property, a Registrar of Deeds shall, at the request of that council, cause, free of charge, the name of that municipality or town to be substituted as the owner of the property concerned in the appropriate register in the Deeds Registry and on the deeds relating to that property;
(b) Given any direction in terms of subsection (3), the person to whom that direction has been given shall forthwith comply with that direction.”

Under the sections referred to above, the President is empowered to transfer land and alter boundaries within municipal areas. Once he has done so, the property transferred vests in the local authority concerned. Where it involves immovable property, the municipality then owns the land, with ownership thereof being registered in the Deeds Registry.

This is in accord with the description of owner that is found in the Regional, Town, Country, and Planning Act.

If regard is had to the provisions of section 4 of the Communal Land Act and the definition of “owner” that appears in the Regional, Town, and Country Planning Act, it stands to reason that the claim by the appellants, that they are owners in their own right of the land they occupy, is not justified under the law.

It goes without saying, that, all land that is not privately owned is State land and is vested in the President. It becomes evident that all State land is controlled by and the manner of dealing with it is the preserve of the Executive.

The appellants have not shown that their land is not part of State land....,.

Land is a national resource and its use and occupation must be regulated. It is, therefore, only logical that a central authority be vested with the power and the obligation to ensure that use and domain are held for the good and benefit of the country's inhabitants.

Ownership and control are, as a result, therefore, vested in a responsible party or authority in a nominal capacity....,. The President merely holds the land in communal areas as a trustee....,.

Where land is vested in the President, it is vested in him as a trustee. Accordingly, it is transferred, excised, or disposed of, as the case may be, in accordance with the legislative provisions pertaining to the particular land designation that the law provides....,.

As the alleged infractions by the respondents were based upon a non-existent right to land under section 71 of the Constitution, it follows that all the other alleged rights cannot be vindicated.

In the case of Mutasa and Anor v The Speaker of the National Assembly and Ors CC18-19, it was held…, that:

“It would be absurd to come to a conclusion that an act done in terms of the provisions of the Constitution can violate someone's rights under the same Constitution. In other words, the applicants could not have been successful in challenging an act that was sanctioned by the supreme law of the land.

The Constitution is one document that contains provisions that are consistent with each other. One provision of the Constitution cannot be used to defeat another provision in the Constitution. Different provisions of the Constitution must be interpreted with a view to ensuring that they operate harmoniously to achieve the objectives of the Constitution.”

A Constitution is an ultimate law in any jurisdiction. It can be amended where its amendment is provided for. However, it binds all that is subject to it. It cannot be challenged or impugned, and it cannot be criticized. It represents the will of its subjects.

In this case, the Constitution has found it appropriate to set out the rights to occupy and own land in communal land within the parameters and the four corners of the statute governing occupation of that land. The same conditions of occupation of that land are replicated in the provisions of section 72 of the Constitution. The Court cannot, in the circumstances, hold that the provisions of the Communal Land Act are inconsistent with the Constitution.

The Constitution itself has given the Communal Land Act validity.

CC18-19 : DIDYMUS MUTASA and TEMBA MLISWA vs SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and CHAIRPERSON ZIMBABWE ELECTORAL COMMISSION
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

After perusing documents filed of record and hearing counsel, the unanimous decision of the Constitutional Court (“the Court”) was that the matter be dismissed with costs. The Court indicated that reasons for the decision would be given in due course. These are they.BACKGROUNDThe applicants are former members of the National ...

BACKGROUND

The applicants are former members of the National Assembly, one of the two Houses of Parliament. They were elected members of the National Assembly on 31 July 2013 during the harmonised elections. Their candidature for election as Members of Parliament was on the ticket of the Zimbabwe African National Union (Patriotic Front) party (“ZANU-PF”).

ZANU PF is a political party with a detailed Constitution that governs, inter alia, matters relating to membership.

The applicants approached the Constitutional Court in terms of section 85(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The first applicant, in his founding affidavit, averred that ZANU-PF, as a political party, had been experiencing internal squabbles since the beginning of 2014. These squabbles culminated in a meeting held by some members in December 2014 which was referred to as a “congress” by those who attended.

Amongst some of the resolutions of the meeting was the suspension of the applicants from ZANU-PF.

On 3 March 2015, the first applicant instituted proceedings in the High Court seeking an order declaring the meeting illegal, which proceedings were still pending at the time of this application.

On 26 January 2015, the first applicant wrote a letter to the President and First Secretary of ZANU-PF. In his correspondence, the first applicant invited the party President to solve the conflicts in the party.

This letter is filed of record.

The first applicant claimed that this letter was not favoured with a response. It was further averred by the first applicant, that, there was a meeting of the ZANU-PF Politburo on 18 February 2015, at which a decision was taken to expel him and the second applicant from the party.

He claimed that he heard about the meeting and the decision to expel him and the second applicant through the media.

On 19 February 2015, the Secretary for Administration of ZANU-PF addressed a letter to the first respondent, advising him that the applicants had ceased to be members of ZANU PF. This letter was received by the first respondent on 23 February 2015.

Aggrieved by this correspondence, the first applicant wrote to the first respondent, on 27 February 2015, stating that his expulsion, and that of the second applicant, from ZANU-PF were null and void.

In the letter, the first applicant articulated reasons for his opinion that his dismissal, and that of the second applicant, were null and void.

By letter dated 2 March 2015, the first respondent replied to the letter of “protest” authored by the first applicant. In his response, the first respondent communicated that any allegation of unfairness in the first applicant's expulsion was supposed to be raised with his political party.

With reference to section 129(1)(k) of the Constitution, the first respondent stated that he was under an obligation to act upon the notification by a political party that a Member of the National Assembly had ceased to be a member of the political party of which he or she was a member when elected to Parliament.

On 3 March 2015, the first applicant learnt from the second applicant that the first respondent had announced that his seat in the National Assembly had become vacant in terms of section 129(1)(k) of the Constitution.

This announcement did not sit well with the applicants.

It prompted them to approach the Constitutional Court in terms of section 85(1) of the Constitution. They sought an order couched in the following terms:

“IT IS ORDERED:

1. That, the applicants fundamental right to the equal protection and benefit of the law, protected by section 56(1) of the Constitution of Zimbabwe 2013, has been infringed by the first respondent's conduct consisting of his announcement and/or declaration on or about 3 March 2015 that their seats in the National Assembly had become vacant;

2. That, the applicants fundamental right to stand for election for public office, and, if elected, to hold such office protected by section 67(3)(b) of the Constitution of Zimbabwe 2013 has been infringed by the first respondent's conduct consisting of his announcement and/or declaration on or about 3 March 2015 that their seats in the National Assembly had become vacant;

3. That, the applicants fundamental right to administrative justice protected by section 68 of the Constitution of Zimbabwe 2013 has been infringed by the first respondent's conduct consisting of his announcement and/or declaration on or about 3 March 2015 that their seats in the National Assembly had become vacant;

4. That, the applicants fundamental right to a fair hearing protected by section 69(3) of the Constitution of Zimbabwe 2013 has been infringed by the first respondent's conduct consisting of his announcement and/or declaration on or about 3 March 2015 that their seats in the National Assembly had become vacant;

5. That, as appropriate relief in terms of section 85(1) of the Constitution of Zimbabwe, the first respondent's conduct consisting of his announcement and/or declaration on or about 3 March 2015 that their seats in the National Assembly had become vacant be and is hereby declared null and void and of no effect whatsoever;

6. That, for the avoidance of doubt, and as further appropriate relief in terms of section 85(1) of the Constitution of Zimbabwe:

6.1 The first applicant is still a member of the National Assembly for the Headlands Constituency;

6.2 The second applicant is still a Member of the National Assembly for the Hurungwe West Constituency;

7. That, there are no vacancies for the Headlands and Hurungwe West Constituencies in the National Assembly;

ISSUE

8. That, the second and third respondents be and are hereby ordered not to cause the holding of by-elections in the Headlands and Hurungwe West Constituencies pursuant to any notice of a vacancy they may have received from the first respondent.

9. That, the first respondent pays costs of this application on an attorney and client scale.”

The issue that fell for determination by the Constitutional Court was whether any of the applicants fundamental human rights were violated by the announcement and/or declaration that their seats in the National Assembly had become vacant in terms of section 129(1)(k) of the Constitution.

The fundamental rights that the applicants alleged had been violated were the right to equal protection and benefit of the law in terms of section 56(1), the right to stand for election for public office, and, if elected, to hold such office in terms of section 67(3)(b), the right to administrative justice in terms of section 68, and the right to a fair hearing in terms of section 69(3) of the Constitution.

At the heart of the application is the need for a correct interpretation of section 129(1)(k) of the Constitution. Its centrality to the issue under consideration necessitates its reproduction. It reads as follows:

“129 Tenure of seat of Member of Parliament

(1) The seat of a Member of Parliament becomes vacant:
(a)–(j) (not relevant);
(k) If the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament, and, the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the Member has ceased to belong to it.”

SUBMISSIONS BY THE PARTIES

THE APPLICANTS SUBMISSIONS

A perusal of the applicants heads of argument reveals one critical point taken in motivating the application. The point is that principles of constitutional interpretation dictate that the rule of law and good governance, entrenched in section 3 of the Constitution, must be promoted.

The applicants urged the Court to adopt a purposive approach in interpreting section 129(1)(k) of the Constitution.

According to the applicants, section 129(1)(k) of the Constitution has two cumulative requirements that must be satisfied for its application:

(i) The first requirement is that a Member of Parliament must have lawfully ceased to belong to the political party of which he or she was a member when he or she was elected to Parliament.

(ii) The second requirement is that a bona fide written notice must be forwarded to the Speaker of the National Assembly (“the Speaker”) or the President of the Senate by the political party concerned declaring that the Member of Parliament has ceased to be its member.

It is the applicants submission, that, section 129(1)(k) of the Constitution is silent on how these two requirements must be fulfilled.

The applicants contend, that, the Speaker of the National Assembly or the President of the Senate is under a duty to enquire from the Member of Parliament in question whether he or she has in fact ceased to be a member of the political party concerned.

According to the applicants, if the member in question disputes the veracity of the declaration of the fact that he or she has ceased to be a member of the political party concerned, the Speaker of the National Assembly or the President of the Senate cannot act in terms of section 129(1)(k) of the Constitution.

It was argued further, that, the Speaker of the National Assembly or the President of the Senate has a duty to inform the political party concerned of the position taken by the Member of Parliament who claims that he or she has not ceased to be its member.

To buttress this interpretation of section 129(1)(k) of the Constitution, the applicants invited the Court to take the view, that, the unbridled power of political parties to cause termination of membership of Parliament of elected Members is contrary to the spirit of the Constitution.

The contention was that an interpretation of section 129(1)(k) of the Constitution which recognises in the Speaker of the National Assembly or the President of the Senate power to “declare” the seat of a Member of Parliament vacant upon receipt of a written notice from a political party, declaring that the Member no longer belongs to it, would be contrary to the spirit of the Constitution.

THE RESPONDENTS SUBMISSIONS

The respondents vehemently opposed the application. The main points advanced by the first respondent, in particular, were as follows:

(a) Upon receiving a written notice from a political party, declaring that a Member of Parliament is no longer a member of the political party concerned, the Speaker of the National Assembly or the President of the Senate is required, by the provisions of section 129(1)(k) of the Constitution, to announce in Parliament that the seat of the Member has become vacant.

(b) The Speaker of the National Assembly or the President of the Senate has no power, under section 129(1)(k) of the Constitution, to create a vacancy in the seat of a Member of Parliament.

(c) The words used in section 129(1)(k) of the Constitution to describe what should be done, by whom, under what circumstances, and the effect thereof, are clear and unambiguous.

The intended meaning of section 129(1)(k) of the Constitution is the ordinary and grammatical meaning of the words used by the makers of the Constitution. There is no cause for interpreting the provisions of section 129(1)(k) of the Constitution in terms of the spirit of the Constitution when the purpose of the constitutional provisions is served by the clear and un-ambiguous language used to give effect to it.

The Constitutional Court was referred to the decision of the Supreme Court in Capital Radio P/L v Broadcasting Authority of Zimbabwe 2003 (2) ZLR 236 (S)…, where CHIDYAUSIKU CJ said:

“It is trite that in interpreting statutes, including the Constitution, the golden rule is that in order to ascertain the intention of the legislature, the words of a statute or legislation are to be given their ordinary or primary meaning. It is only where that primary meaning of words is obscure or leads to absurdity that other principles of interpretation are invoked to assist in the ascertainment of the intention of the legislature.”

It was also the first respondent's argument, that, section 129(1)(k) of the Constitution does not impose on the Speaker of the National Assembly or the President of the Senate a duty to enquire into the legality or otherwise of the termination of membership of the political party concerned as declared in the written notice received by him or her.

INTERPRETATION OF SECTION 129(1)(K) OF THE CONSTITUTION

The Constitution provides guidelines on how it should be interpreted. Section 331 of the Constitution provides as follows:

“331 General principles of interpretation of the Constitution

Section 46 applies, with any necessary changes, to the interpretation of this Constitution apart from Chapter 4.”

It is common cause that section 129(1)(k) of the Constitution is not part of Chapter 4. It therefore follows, that, section 46 of the Constitution applies, with any necessary changes, to its interpretation.

Section 46 of the Constitution provides:

“46 Interpretation of Chapter 4

(1) When interpreting this Chapter, a court, tribunal, forum or body -

(a) Must give full effect to the rights and freedoms enshrined in this Chapter;

(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section 3;

(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) Must pay due regard to all the provisions of this Constitution, in particular, the principles and objectives set out in Chapter 2; and

(e) May consider relevant foreign law, in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.

(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.”

In interpreting section 129(1)(k) of the Constitution, the Court is under an obligation to give full effect to the founding values enshrined in section 3 of the Constitution, including the supremacy of the Constitution and the rule of law.

The supremacy of the Constitution means, that, the provisions of the Constitution are supreme, and, any law repugnant to them is invalid. The rule of law also dictates that decisions must be based on and sanctioned by the law.

Section 129(1)(k) of the Constitution regulates the tenure of office of Members of Parliament.

In terms of the section, the seat of a Member of Parliament becomes vacant if the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker of the National Assembly or the President of the Senate, as the case may be, has declared that the Member has ceased to belong to it.

The Constitutional Court, on a previous occasion, has held, that, in general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean, within the context in which they appear. If the words used are clear and unambiguous, then, no more is necessary than to construe them in their natural and ordinary sense: see Mawarire v Mugabe N.O. and Others 2013 (1) ZLR 469 (CC).

In Chihava and Others v Provincial Magistrate and Another 2015 (2) ZLR 31 (CC)…, the Court said:

“In this respect, it is pertinent to note, that, a Constitution is itself a statute of Parliament. Therefore, any rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation can only be additional to the general rules governing the interpretation of statutes.”

In Zimbabwe Revenue Authority and Anor v Murowa Diamonds (Pvt) Ltd 2009 (2) ZLR 213 (S), the general principle of interpretation of statutes was set out…, as follows:

“The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but, no further: see Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) at p264D-E; Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374 (S) at p377A-D.”

The applicants bore the onus of showing that the grammatical and ordinary meaning of the words used in section 129(1)(k) of the Constitution would lead to an absurd result or inconsistency with the rest of the Constitution if adopted by the Court.

It was necessary for the applicants to show, that, there was need to depart from the ordinary and grammatical meaning of the words used in section 129(1)(k) of the Constitution.

The ordinary meaning of the words used in section 129(1)(k) of the Constitution is that a Member of Parliament ceases to be a Member when he or she ceases to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker of the National Assembly or the President of the Senate, has declared that the Member has ceased to belong to it.

The provisions of section 129(1)(k) of the Constitution do not clothe the Speaker of the National Assembly or the President of the Senate with power to inquire into the legality or otherwise of the fact of cessation of membership of the political party concerned by the Member of Parliament.

Section 129(1)(k) of the Constitution envisages that every political party, as an organisation, has in its administrative structure an individual tasked with the duty of communicating the fact of the Member of Parliament having ceased to be its member in the appropriate form to the Speaker of the National Assembly or the President of the Senate.

The Constitution places a duty on the Speaker of the National Assembly or the President of the Senate to act on the notification from a political party that communicates the prescribed fact in the prescribed form.

Nothing in the provisions of section 129(1)(k) of the Constitution empowers the Speaker of the National Assembly or the President of the Senate to interfere with the internal affairs of political parties and their members.

The status of having ceased to be a member of the political party concerned is a matter of fact, the legality of which is determined by reference to the provisions of the constitution of the political party concerned.

It may be a fact resulting from a process of expulsion or voluntary resignation.

When it occurs, it remains a matter affecting the internal affairs of the political party concerned. It may remain so without any effect on the tenure of seat of a Member of Parliament unless the political party concerned takes the action prescribed under section 129(1)(k) of the Constitution and communicates the fact that the Member of Parliament has ceased to belong to it to the person appointed to receive the written notice.

If a Member of Parliament is unhappy with the manner his or her membership of a political party was terminated, he or she has the legal remedies for challenging the legality of the termination of his or her membership before the political party concerned forwards the written notice required by section 129(1)(k) of the Constitution to the Speaker of the National Assembly or the President of the Senate.

After all, it is he or she who is privy to the constitution of the political party, the rights enshrined therein, and the circumstances surrounding the termination of his or her membership of the political party.

The first respondent received a letter from the Secretary for Administration of ZANU PF, the political party under whose tickets the applicants were elected into Parliament. The letter advised the first respondent that the applicants had ceased to belong to ZANU-PF.

The first respondent acted in terms of section 129(1)(k) of the Constitution when he announced that the seats had become vacant and advised the second and third respondents of the development.

The vacancy in the seat of Parliament happens by operation of law when a written notice, which complies with the procedural and substantive requirements of section 129(1)(k) of the Constitution, is received by the Speaker of the National Assembly or the President of the Senate.

The Speaker of the National Assembly or the President of the Senate announces the vacancy of a seat of Parliament which has occurred by operation of law.

The creation of a vacancy in a seat of Parliament, in terms of section 129(1)(k) of the Constitution, is an event, the occurrence of which would not be determined by the Speaker of the National Assembly or the President of the Senate.

It should also be emphasised, that, in reading the Constitution as a whole, its founding provisions must be had regard to.

The supremacy of the Constitution, and the rule of law in particular, are important to this case.

The principle of the rule of law dictates, that, the conduct of the Speaker of the National Assembly or the President of the Senate must be in accordance with the requirements of section 129(1)(k) of the Constitution.

The conduct of the first respondent was consistent with the cumulative requirements set out in section 129(1)(k) of the Constitution.

Each applicant ceased to belong to the political party of which he or she was a member at the time of his or her election to Parliament, and the political party concerned, by written notice to the Speaker of the National Assembly, declared that each applicant had ceased to belong to it.

The seat of each applicant, as a Member of Parliament, became vacant by operation of section 129(1)(k) of the Constitution.

The Speaker of the National Assembly did not have to do anything to create vacancies in either of the applicants seats in Parliament. In other words, the vacancy in the seat of Parliament is created as a direct consequence of events, the origin of which lies outside Parliament.

Termination of the tenure of a Member to occupy the seat is what the Constitution, through the provisions of section 129(1)(k), says must happen when all the procedural and substantive requirements of the provision have been met.

The allegation that the announcement by the Speaker of the National Assembly of the fact that the seats occupied by the applicants, as Members of Parliament, had become vacant, violated the applicants rights to equal protection and benefit of the law enshrined in section 56(1) of the Constitution implies that the Speaker of the National Assembly acted contrary to the requirements of section 129(1)(k) of the Constitution.

The question of the validity or otherwise of the conduct of the Speaker of the National Assembly in announcing that the seats occupied by the applicants in the National Assembly had become vacant had to be determined by application of the provisions of section 129(1(k) of the Constitution, as interpreted by the Court, to the conduct.

If the decision of the Court was that the conduct of the Speaker of the National Assembly was inconsistent with the requirements of the provisions of section 129(1)(k) of the Constitution, there would be no need to go further and say that the conduct of the Speaker of the National Assembly violated section 56(1) of the Constitution.

The conduct complained of is either valid and constitutional or invalid and unconstitutional vis-a-vis the constitutional provision against the standard of which its legality is measured.

Section 129(1)(k) of the Constitution is a complete provision that is not subject to the Bill of Rights. Like any other provision of the Constitution, section 129(1)(k) is a fundamental law partaking of the status of supremacy of the Constitution against which the validity of conduct can conclusively be measured.

It would be absurd to come to a conclusion that an act done in terms of the provisions of the Constitution can violate someone's rights under the same Constitution. In other words, the applicants could not have been successful in challenging an act that was sanctioned by the supreme law of the land.

The Constitution is one document that contains provisions that are consistent with each other. One provision of the Constitution cannot be used to defeat another provision in the Constitution.

Different provisions of the Constitution must be interpreted with a view to ensuring that they operate harmoniously to achieve the objectives of the Constitution.

It is for these reasons that the Court found that the application was devoid of merit.

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

In this application, the applicants seek an order declaring that the Parliament of Zimbabwe (“Parliament”) and the President of the Republic of Zimbabwe (“the President of Zimbabwe” or simply 'the President') have failed to fulfil certain constitutional obligations delineated in section 328 of the Zimbabwe Constitution in passing Constitution of Zimbabwe Amendment (No.2) Act 2021 (“the Constitution Amendment Act”).

More specifically, the applicants allege that the Bill that was eventually passed by Parliament, on 7 May 2021, contained a number of major and material amendments to the original Bill.

Maintaining that the Bill that is passed by Parliament must be the same Bill as that originally gazetted, they seek, as consequential relief, an order setting aside the entire Constitution Amendment Act; alternatively, an order striking down the particular sections of the Constitution Amendment Act which they consider to have been irregularly enacted.

Various objections were taken in limine by the respondents, both in their opposing papers and heads of argument. The applicants also raised a number of preliminary points arising from the opposing papers filed by the respondents.

The court, of its own motion, invited Ms Sanhanga to appear as amicus curiae, and, consequent to that invitation, she filed heads of argument dealing with the various contentions raised by the parties.

Having considered the facts of this matter in their totality and the submissions by the parties, as well as amicus curiae, I reach the conclusion, that, the Constitution Amendment Act was properly passed.

The application must therefore fail....,.

FACTUAL BACKGROUND

The first applicant, Edwin Mushoriwa (“Mushoriwa”) is a Member of Parliament for the Dzivarasekwa Constituency in Harare, having been so elected in the 2018 harmonised elections.

The second applicant, Firinne Trust operating as Veritas (“Firinne Trust”), is a trust constituted in accordance with the laws of this country. It is a human rights organisation involved in the advocacy of human rights and constitutionalism in Zimbabwe. It further states that part of its mandate is to publicise the work of Parliament and analyse Bills and legislation to ensure adherence to constitutional principles and respect for human rights.

The third applicant, Brian Crozier (“Crozier”), is a registered legal practitioner, who, for many years, worked as the Chief Legal Draughtsman in the Ministry of Justice, Legal and Parliamentary Affairs. With others, he was involved in the drafting of the 2013 Constitution. He states that he has devoted much of his life in defending the rule of law and human rights.

The first respondent, the Parliament of Zimbabwe (“Parliament”) is the organ of State that is charged with the responsibility of initiating, preparing, considering, and rejecting legislation. Its legislative authority is exercised through the enactment of Acts of Parliament. The Legislature of Zimbabwe consists of Parliament which passes Bills and the second respondent, the President of Zimbabwe, who assents to and signs Bills presented to him by Parliament to enable Bills to become Acts of Parliament.

The Constitution of Zimbabwe Amendment (No.2) Bill (“the Constitution Amendment Bill”) was gazetted as Bill HB23/2019 on 31 December 2019 through General Notice 216/2019. It was eventually passed by Parliament on 7 May 2021.

It is common cause, that, during its second reading, the Minister of Justice, Legal and Parliamentary Affairs, in response to points made during the debate, gave notice that he would be moving amendments to the Bill at the Committee Stage scheduled for the following day. The suggested amendments were published in the order paper for the following day. In addition to the amendments proposed by the Minister, other amendments were proposed from the floor.

These amendments were accepted and adopted during the Committee Stage.

It is these amendments and their constitutionality that the applicants take issue with.

APPLICANTS CASE BEFORE THIS COURT

In his founding affidavit, Edwin Mushoriwa states that the Bill that was eventually passed by Parliament, on 7 May 2021, contained major and material amendments that were incorporated into the original Bill.

He states, that, it is unlawful for Parliament to pass a Constitutional Bill which is not, in express terms, the same as that which was originally gazetted in terms of section 328(3) of the Constitution. In other words, so he averred, the Bill that is passed by Parliament must be the same Bill as that originally gazetted.

Because the Bill that was eventually passed contained major amendments, it became materially different from the original Bill and was, consequently, invalid.

He avers that where, as in this case, there are major and material amendments to a Constitutional Bill that has been gazetted in terms of section 328(3) of the Constitution of Zimbabwe, then, such amendments should be gazetted for a further period of ninety (90) days in terms of the same section and subjected to further debate by members of the public in public meetings and through written submissions as provided for in subsection (4) of section 328 of the Constitution.

In failing to ensure that section 328 of the Constitution was complied with, both Parliament and the President failed to fulfil the constitutional obligation to pass a Bill that complied with section 328 of the Constitution.

The Bill was passed by both the National Assembly and the Senate in May 2021 and was signed and gazetted into law by the President on 7 May 2021 as Constitution of Zimbabwe Amendment (No.2), Act No.2 of 2021.

The applicants itemise the amendments they say were material that were introduced at the Committee Stage of Parliament as being the following:

(a) The proviso that was added to section 124 of the Constitution relating to a proposal by Priscilla Mushonga, for political parties to ensure that ten of the sixty women members would be persons under the age of thirty five; that women with disabilities are represented on party lists, and young women with disabilities are represented on their party lists in terms of an Act of Parliament.

(b) The amendment to section 180 of the Constitution which now made provision that an appointment of a Judge could be made by the President whenever it becomes necessary to do so rather than whenever a vacancy arose.

(c) The amendment to section 186 of the Constitution increasing the retirement age of Judges from 70 to 75 years subject to an election by the Judge to continue and approval by the President. It further provided, that, notwithstanding the provisions of section 328(7) of the Constitution, the amendment would apply to the continuation in office of the Chief Justice, Deputy Chief Justice, Judges of the Constitutional Court and Supreme Court.

(d) The amendment to section 199 providing that 10% of persons to be employed in the public service would be persons with disabilities.

(e) The amendment to section 268 providing that members of a provincial council should include ten women elected by a system of proportional representation.

(f) The amendment to section 327 excluding from Parliamentary scrutiny loans and agreements referred to in section 300(3) and (4) of the Constitution.

PARLIAMENT'S NOTICE OF OPPOSITION

The notice of opposition was deposed to by the Speaker of Parliament, Jacob Mudenda.

In his opposing affidavit, he disputed that Parliament was required to re-gazette the amendments that were incorporated into the original Bill or that there was an obligation, on the part of Parliament, to invite members of the public, once again, to express their views in respect of the same.

He stated that there is no provision in the Constitution which requires amendments to be re-gazetted or subjected to further public meetings and consultation. It was his further contention, that, had the intention been that a gazetted Bill should be passed without amendments, the section in question would have stated accordingly.

In any event, so he argued, there would be no purpose in having parliamentary debates if Parliament is not allowed, at the end of the day, to make amendments where it deems fit. Such an interpretation of section 328 of the Constitution would lead to an absurdity.

He further averred, that, Parliament did, in fact, comply with the provisions of section 328(3) of the Constitution.

The Speaker duly gazetted the Bill as required by section 328(3) of the Constitution. Thereafter, pursuant to subsection (4), Parliament duly invited members of the public to express their views on the Bill, both in public meetings and through written submissions. He further stated, that, the amendments came about as a result of parliamentary debate and that the amendments did not, in any event, change the complexion of the Bill.

Endorsing the Bill with obvious shortcomings would have constituted a failure on the part of Parliament to perform its constitutional obligation.

He further stated, that, since there is no provision which prohibits Parliament from making amendments to a Constitutional Bill, the matter does not therefore fall within the ambit of section 167(2)(d) of the Constitution.

THE PRESIDENT'S NOTICE OF OPPOSITION

The opposing affidavit of the President was deposed to by the Attorney-General who has averred that he has been authorised by the President to depose to the affidavit.

The Attorney-General has taken a number of preliminary points:

(i) First, that the application is fatally defective, having been brought in terms of section 16(2)(d) of the Constitution, which is a non-existent provision.

(ii) Second, that not having alleged a contravention of their fundamental rights espoused in Chapter 4 of the Constitution, the applicants have no legal standing to challenge the validity of the Constitution Amendment Act.

(iii) Third, that the same matter is pending before this court in the application filed by the second applicant jointly with Eric Matinenga and Ors in CCZ14/21. The matter is therefore already pending before this court and the present application ought therefore to be dismissed with costs.

(iv) Fourth, that Brian Carston Brown has no authority to bring these proceedings on behalf of Firinne Trust.

The resolution attached to the founding affidavit gives general authority to the director of the Trust, one Dr Ingram Thorpe, to institute court proceedings, which she did in case number CCZ14/21. Brian Carston Brown was given alternative authority to depose to an affidavit only in situations where Dr Thorpe would have failed to do so.

(v) Fifth, that Firinne Trust, being a trust, has not established that it has been given legal capacity, in terms of its constitution, to institute proceedings in its own name as opposed to the names of its trustees. The assertion that it has power to sue and be sued remains a bald one.

On the merits, the Attorney-General states that he does not accept that there were material differences between the Bill that was gazetted and the Bill that was eventually passed.

Further that, in any event, there is nothing in the Constitution which prevents Parliament from effecting amendments to a Bill that is passed as a law.

He also submits that no attempt has been made to identify the specific constitutional obligation that is alleged to have been breached by Parliament or the President.

He has further stated, that, the Bill in question was subjected to all the necessary requirements in terms of section 328 of the Constitution of Zimbabwe.

There is no constitutional requirement for any amendments effected to a Bill to be gazetted for the second time.

The averments made by the applicants, in their founding affidavits, show that there was publication of the Bill and interested persons were given the opportunity to make contributions in respect of the contents of the Bill.

He argues, that, the applicants are therefore introducing an additional constitutional requirement where none exists.

He states, that, taken to its logical conclusion, the proposition by the applicants is that amendments that are proposed after gazetting must themselves constitute a separate Constitutional Bill and become subject to further gazetting and the ninety-day notice in the Gazette.

On the amendments introduced during the Committee Stage, he submits that there is nothing in the Constitution that precludes Parliament from incorporating into the Bill suggestions made by members of Parliament during the Committee Stage. The intention of having debates in Parliament is to ensure that the Bills are fine-tuned, adjusted, and amended to suit the needs of society.

APPLICANTS ANSWERING AFFIDAVITS

In their answering affidavits, the applicants state that the President has duties that are defined in Part 2 of Chapter 5 of the Constitution. Section 90(1) of the Constitution makes it clear that he must uphold, defend, obey, and respect the Constitution. To the contrary, they allege that he and Parliament are responsible for its mutilation.

The applicants also take issue with the affidavit deposed to by the Speaker on behalf of Parliament.

Accepting that the Speaker is the head of Parliament, they state, however, that he is not Parliament, which consists of two chambers. The two houses should have separately resolved to defend this matter and given him specific authority to defend this application.

They further argue, that, the effect of introducing material amendments at the Committee Stage of Parliament is to deny the imperator prescribed in subsections (2), (3) and (4) of section 328 of the Constitution.

A holistic and contextual construction of section 328 of the Constitution is imperative. It must be one that seeks to protect the Constitution and not destroy it.

The applicants accept that Parliament has the right to debate a Bill and to reject some of its provisions. But, they do not accept that Parliament, at the instance of the executive, or anyone else, can introduce material amendments that were not part of the original Bill when gazetted.

Where there is a counter-proposal in the ensuing debate in Parliament, the executive must go back to the drawing board and re-gazette a fresh amendment arising out of those consultations.

In other words, the Bill presented and gazetted in terms of section 328(1), (2) and (3) of the Constitution cannot have amendments that by-pass the obligation for public participation as well as the obligation for the Speaker to give at least ninety days notice of such Bill in the Gazette specifying the precise terms of the Bill.

The applicants also take the point, that, it is not competent for the Attorney-General to depose to an affidavit on behalf of the President who is his client.

On the point taken by the President, that, the applicants cannot approach this court in terms of section 16 (2)(d) of the Constitution, the applicants say that this is an “ipse dixit…, raised by hired guns, acting on behalf of the 2nd respondent, who has no morality, no conscience, no decency other than their bottom line.”

They further state, that, the objection is “nothing but sophistry pedantism and typical of those who do not respect the Constitution and who do not respect the rule of law in this country.”

On the suggestion that the present application was the result of cutting and pasting of the Eric Matinenga and Ors CCZ14/21 application, the applicants deny that the respective causes of action are similar, regard being had to the fact, that, in Eric Matinenga and Ors CCZ14/21, the application is based on the doctrine of basic structures, which is not the position in the present matter. They submit that conflating the two applications would have been undesirable.

The applicants state further, that, the Firinne Trust has the legal capacity to sue and be sued.

They aver however that even if it does not have such capacity, the first and third applicants, who are natural persons, are before the court.

They state that there is no point “raising an objection that does not advance any cause other than irritation.”

Brian Carston Brown avers, that, the Deed of Trust of the second applicant authorises the Trust to bring and defend proceedings. He does not, however, attach a copy of the Trust Deed.

The applicants further stress, that, no material amendments can be passed at the Committee Stage of Parliament and neither can amendments which would not have been subjected to a process of participatory democracy in terms of section 328 of the Constitution.

They argue that if this were to be allowed, it would mean the Executive would ambush the public by introducing major material and far-reaching amendments on an unsuspecting public.

APPLICANTS HEADS OF ARGUMENT

In their heads of argument, the applicants submit that both Parliament and the President failed to fulfil their constitutional obligations in respect of the passage of the Constitution Amendment Act, and, more specifically, in enacting “ungazetted and unconsulted amendments.”

In summary, they submit that it is unconstitutional for Parliament to pass amendments that are not expressed in the terms originally gazetted in terms of section 328(3) of the Constitution, that have not been gazetted for ninety (90) days as required by section 328(3) and that have not been subjected to a process of public inquiry as mandated by section 328(4) of the Constitution.

They further submit that the Executive must justify its actions and show that it correctly fulfilled its constitutional obligations.

The applicants further argue that the Executive cannot, through the back door, allow such extensive amendments without them having been gazetted and debated.

They further submit, that, in interpreting section 328 of the Constitution, this court should not rely on the literal meaning of the words used but must read all the provisions of the Constitution holistically and in a generous and purposive manner.

If that approach is adopted, the conclusion would be reached that it was wrong and unconstitutional to introduce extensive amendments not previously gazetted or subjected to public scrutiny at the Committee Stage of Parliament.

They argue, that, nowhere in the Fifth Schedule to the Constitution is there provision for amendments to be made at the Committee Stage as stated in the Standing Orders. The procedure for amendments at the Committee Stage applies to normal Bills but not Constitutional Bills.

Section 328(4) of the Constitution implicitly excludes amendments that have neither been gazetted nor scrutinised by the public as there can never be amendments in respect of which members of the public are not invited to express their views on the proposed Bill.

On the remedy, the applicants submit that this is not a proper case for the court to employ a blue pencil test and excise the impugned provisions from the Constitution Amendment Act No.2. Instead, the Court should set aside the Act in its entirety.

At the hearing of the matter before this court, counsel for the applicants abandoned the preliminary point previously taken, that the Attorney-General cannot properly swear to an affidavit on behalf of the President.

Having abandoned that preliminary point, he nevertheless suggested that the judgment of this court should, obiter, express its views on the propriety of the Attorney General representing the President.

He further submitted, that, in the event that this court agrees with the applicants and holds that the amendment was unconstitutional, such decision should not have retrospective effect.

It was also his further submission, that, the Standing Orders of Parliament must be consistent with the Constitution which provides that all existing laws must be read in conformity with the Constitution.

Asked during the hearing in what way the President failed to fulfil his constitutional obligations, he told the court that the President has the obligation to scrutinise all Bills before assenting to them.

FIRST RESPONDENT'S SUBMISSIONS

In heads of argument filed on its behalf, Parliament took two preliminary points:

(i) The first was that the application ought to fail, the applicants having purported to approach this court in terms of section 16(2)(d) of the Constitution.

(ii) The second was that there has been a fatal non-joinder of both the Attorney-General and the Minister of Justice, Legal and Parliamentary Affairs, who is the Minister assigned the administration of the Act and who has a direct and substantial interest in the matter.

On the merits, Parliament has submitted as follows:

It followed the required procedure in amending the Constitution. The Bill was gazetted before it was tabled in Parliament. The requisite ninety days period of notice of the precise terms of the Bill was given.

Section 117(2) of the Constitution confers on Parliament the legislative authority to amend the Constitution in accordance with section 328. Subsection (2) of section 328 provides that an Act of Parliament that amends the Constitution must do so in express terms.

The interpretation placed on section 328 of the Constitution, by the applicants, cannot be correct.

The section requires the Speaker to give notice in the Gazette of the precise terms of the Bill before presenting it in Parliament. In other words, the terms in the Gazette, from the time of gazetting and presentation in Parliament, cannot be changed. Thereafter, Parliament must invite members of the public to express their views on the Bill. Such invitation must be done before the Bill is presented in the house, and, once it is presented, it cannot be re-gazetted or referred back to the public.

The Bill must also be passed, at its last reading, by an affirmative vote of at least two-thirds of the membership of each house.

It was Parliament's further submission, that, regard being had to section 131(4) and the Fifth Schedule of the Constitution, it has the power to amend a Bill that has been transmitted to either house of Parliament.

Paragraph 5(3) of the Fifth Schedule, in particular, provides that a Bill, which, having been transmitted to a house of Parliament, is passed by that house with amendments must be returned to the originating house with the amendments duly certified by the Clerk of Parliament and the house to which it is returned may reject, agree to or amend any of those amendments.

Subparagraph (3) also provides that where a Bill is returned to the originating house with amendments, and such amendments are rejected, or amended by the originating house, the other house may, by resolution, withdraw the amendments or agree to it being amended.

Bearing in mind the definition of “amend” in section 332 of the Constitution, it is clear that during debate, the houses may amend, vary, alter, modify, add to, delete or adapt the gazetted Bill.

It was Parliament's contention that the Constitution does not provide for any amendments effected to a gazetted Constitutional Bill to be re-gazetted or subjected to further public meetings and consultations. Had the intention been that the gazetted Bill should not be passed with amendments or that such amendments be further published and subjected to public scrutiny, then, Parliament would have said so.

Parliament further re-states, that, there would be little purpose in having debate in Parliament, from the first to the third reading, if Parliament were not to be allowed to make amendments where it deems fit.

In oral submissions, counsel for Parliament abandoned the preliminary point that the application was invalid, having been filed in terms of a non-existent section 16(2)(d) of the Constitution.

He, however, persisted with the preliminary point taken on the fatal non-joinder of the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General.

Counsel for Parliament made the following further submissions:

The Constitution provides, in paragraph 12 of Part 4 of the Sixth Schedule, that the Standing Orders that were in force before the effective date continue in force until replaced or amended in terms of the Constitution.

Therefore, it is not permissible for the applicants to challenge conduct that is allowed by a law without challenging the law that allows it.

The Standing Orders provide for amendments at the Committee Stage. Therefore, it is impermissible to impugn a process which is part and parcel of the Constitution.

He further submitted, that, the Speaker, being the presiding officer of the activities of Parliament, can quite properly attest to an opposing affidavit on behalf of Parliament.

He also argued, that, the constitutional obligation on Parliament is to solicit the views of the public in public meetings and to give the public ninety (90) days notice of the precise terms of the Bill.

That requirement was complied with in this case.

The argument whether an amendment is major or material does not arise from any of the provisions of the Constitution. Whether an amendment is major cannot be determined by this court and would require the court to delve into the actual processes of Parliament in order to make such a determination.

The argument by the applicants that a Constitutional Bill cannot be amended, as happened in this case, fails to appreciate that members of Parliament are the representatives of the masses. They make the final decisions on what to bring up during debate.

He further submitted, that, they have no legal obligation to take up the views expressed by the public during public meetings and in written submissions.

It was quite proper for proposals to be made during the debate in plenary and for amendments to be made to the Bill consequent thereto. Section 328 of the Constitution does not state what Parliament must do with the views expressed by the public. The process was intended to inform members of Parliament of the views expressed by members of the public they represent in Parliament.

SUBMISSIONS BY THE PRESIDENT OF ZIMBABWE

In heads of argument filed on his behalf, the President has submitted that section 328(3) of the Constitution does not impose any obligations on him as the President of Zimbabwe. It merely imposes obligations on the Speaker of Parliament to publish, on ninety days notice in the Gazette, the precise terms of a Constitutional Bill to be submitted to Parliament.

The Speaker's omission, if any, cannot be subjected to the jurisdiction of this court under section 167(2)(d) of the Constitution. Subsection (4) imposes an obligation on Parliament to invite members of the public to express their views in public meetings and through written submissions.

The President has also raised two preliminary points:

(i) First, that in purporting to approach this court under section 16(2)(d) of the Constitution, which section bears no relationship to the relief sought, the application is invalid and must be dismissed on that basis alone.

(ii) Secondly, that the relief sought in the application in Eric Matinenga and Ors CCZ14/21 is identical to that sought in this matter. The matter is accordingly lis pendens.

On the merits he has submitted as follows:

Section 328(3) of the Constitution imposes a disability as opposed to an obligation in that it limits the right of Parliament to receive a Constitutional Bill to only those bills that would have been published by the Speaker in the manner set out in that provision.

Therefore, a breach of section 328(3) of the Constitution does not constitute a failure to fulfil a constitutional obligation as such an obligation must be a positive duty imposed by that section.

He has further submitted, that, the public functionary upon whom the Constitution imposes a positive obligation is the Speaker of Parliament who must give at least ninety days notice in the Gazette of the precise terms of the Bill.

Neither Parliament nor the President had an obligation to gazette the Bill in terms of section 328(3) of the Constitution.

The Speaker, in compliance with section 328(3) of the Constitution, published the terms of the Bill in the Gazette and the Bill was presented to Parliament more than ninety days after such gazetting. The Bill that was presented to Parliament was the same Bill that had been published in the Gazette by the Speaker.

He submitted, that, whilst section 328(4) of the Constitution imposes an obligation on Parliament to ensure public participation, it imposes no obligation on him as President. For that reason, if the Court finds that Parliament breached that provision, such breach cannot be imputed to him as President.

He further submitted, that, immediately after gazetting the precise terms of the Bill, as was done in this matter, Parliament was required to do three things:

(i) Firstly, it was supposed to invite members of the public to express their views on the Bill.

(ii) Secondly, it was required to convene meetings and provide facilities to enable the public to air their views.

(iii) Thirdly, it was required to hold public hearings and receive written submissions.

He submitted, that, in respect of all three requirements, there was compliance by Parliament. The Bill was gazetted on 17 January 2020; the first invitation for the public to air its views was made on 22 January 2020, five days after the gazetting. Such invitation was therefore immediate; Parliament further convened public meetings during which members of the public aired their views on the Bill. There were also radio programmes and zoom meetings.

In oral submissions, counsel for the President abandoned two preliminary points previously raised. These are:

(i) Whether the application is invalid for citing section 16(2)(d) of the Constitution; and

(ii) Whether there is a pending matter involving the same parties and in which the same relief is sought.

He however submitted, that, the applicants have employed insulting and abusive language in their answering affidavit, and, for that reason, should bear the costs of the application.

On the competence of the Attorney General to represent the President, he submitted, that, since the applicants had abandoned this point, the court should not determine the matter as urged by the applicants as there is a lot of material that is not before the court; in particular, details on the sui generis position of the Attorney-General.

On the substance, he submitted that section 328 of the Constitution does not impose any obligation on the President, and, further, that there is no obligation on the President to supervise proceedings in Parliament.

In terms of section 131 of the Constitution, the President is required to assent to Bills or refuse to do so. In the context of this matter, that is his only obligation. He cannot be accused of breaching the Constitution where Parliament has committed a breach of its Rules.

SUBMISSIONS BY AMICUS CURIAE

Ms Sanhanga, as amicus curiae, submitted that it was common cause that the original Bill was duly gazetted for the minimum period of ninety days and that the public had an opportunity to comment on it before it was debated in Parliament. It was also common cause that the Bill which was originally gazetted was the same Bill which was presented to the National Assembly. It was also common cause that the Bill was amended at the Committee Stage by the National Assembly and that the Bill, as amended, was not again gazetted after the amendments and that no further consultation of members of the public took place. The Bill was then passed in both houses with the requisite two-thirds majority and was assented to by the President and gazetted on 7 May 2021.

Section 328(2) of the Constitution provides that an Act of Parliament that amends the Constitution must do so in express terms. The section refers to an Act and not a Bill. The amendments made by the Act are in express terms.

Therefore, section 328(2) of the Constitution was complied with.

She further submitted, that, whilst Parliament has the general power to amend the Constitution, pursuant to section 117(2)(a) as read with section 328 of the Constitution, there is no express provision in the Constitution for the amendment of Bills.

However, paragraph 5 of the Fifth Schedule to the Constitution provides for the amendment of Bills in general, which would also include a Constitutional Bill.

It was also her submission, that, contrary to the assertions made by the respondents, section 5 of the Fifth Schedule provides for amendments to be made to Bills in the house of Parliament to which the Bill has been transmitted and not the originating house. In other words, the section does not provide for amendments to be made by the originating house, unlike in this case where the amendments were made in the National Assembly.

Section 139 provides for Standing Orders which govern the passing of Bills, and, in section 154 of the Standing Orders, provision is made for the amendment of Bills in the National Assembly as the originating house. Based on those provisions, the originating house of Parliament is therefore entitled to amend Bills, including Constitutional Bills.

It was her further submission, that, section 328(4) of the Constitution merely provides for consultation through public meetings and written submissions. In other words, the public simply gives its opinion on the proposed amendment, and, although the legislative authorities are expected to listen to those views, they are not obliged to act on them.

It is Parliament, through the two houses, which would then take into account those views and craft a Bill which accords with the views of the public and constituencies as represented by each member of Parliament.

In her view, in such a situation, there is no requirement for gazetting the amendments as the stage for consultation would have been passed.

In any event, the applicants have not stated what the views of the public were.

Accordingly, there has been no violation of section 328(3)(4) of the Constitution and the suggestion that this court should infer requirements which are not expressly stated as being mandatory would impermissibly undermine the legislature which is itself a representative of the people.

This, she further submitted, would not only result in arbitrariness in the law but would have, as a consequence, the judiciary amending the Constitution.

ISSUES ARISING FOR DETERMINATION

From the foregoing, it is apparent that a number of preliminary issues arise and that they require to be determined in limine.

In the event that the preliminary issues are not dispositive of the dispute between the parties, the sole issue that would arise for determination is whether the amendments effected to the Bill should have followed the procedure provided in sub-sections (3) and (4) of section 328 of the Constitution....,.

The only issue that remains for determination is whether there was compliance, on the part of Parliament and the Speaker, with the provisions of section 328(2), (3) and (4) of the Constitution....,.

WAS THERE COMPLIANCE WITH SECTION 328 OF THE CONSTITUTION

This is the nub of the dispute between parties. The facts giving rise to the proceedings, which are largely common cause, are worth regurgitating:

On 31 December 2019, the Speaker of Parliament gazetted the Constitutional Amendment Bill HB23/19. It consisted of twenty seven clauses that dealt with an extensive list of constitutional issues. These dealt with various issues, chief among which were the removal of the running mate clause for Vice-Presidents; increasing the number of non-constituency Ministers who could be appointed; increasing the tenure of office of female proportional representative members of Parliament; the appointment of Judges as well as their tenure; the appointment of the Prosecutor-General; and the removal of Members of Parliament from the membership of Provincial Councils.

In accordance with subsection (4) of section 328 of the Constitution, Parliament duly invited members of the public to express their views on the Bill in public meetings and through written submissions.

In accordance with its processes, Parliament proceeded with the first and second reading of the Bill.

In concluding and winding up debate on the Bill, the Minister of Justice, Legal and Parliamentary Affairs responded to points made during the debate and gave notice that he would be moving amendments during the Committee Stage that was scheduled for the following day.

The amendments were duly published in the order paper for the following day, that is, 15 April 2021.

On 15 April 2021, the Minister proposed a number of amendments whilst others were proposed from the floor by the Minister himself and Priscilla Mushonga, a Member of Parliament.

It is these amendments, which were then accepted and adopted during the Committee Stage, that the applicants seek to impugn.

The process leading up to the debate in Parliament is not impugned and no issues arise before this court in that regard.

It is the applicants contention that Parliament cannot make 'major' or 'material' amendments to a Constitutional Bill, and that, if such amendments are made, the amendments would constitute a new Constitutional Bill and the processes provided in sub-sections (3) and (4) of section 328 of the Constitution must again be complied with.

Counsel for the applicants submitted, that, there is no stage known in our Constitution as the Committee Stage in Parliament and that the Standing Orders that allow amendments at the Committee Stage are not consistent with section 328 of the Constitution as there cannot be a procedure for a Committee Stage in respect of a Constitutional Bill.

In light of this submission, there is need, therefore, to take a closer look at the provision in question in order to determine whether, on a holistic, contextual, and purposive interpretation of section 328 of the Constitution, which he urges this court to adopt, it means what the applicants contend it does, namely, that where there are major or material amendments effected to a Constitutional Bill, then, the process provided for in subsections (3) and (4) of section 328 of the Constitution must once again be resorted to.

In short, should section 328 of the Constitution be interpreted to include such an obligation?

CONSTITUTIONAL INTERPRETATION

In urging this court to adopt a holistic, contextual, and purposive approach to the interpretation of section 328 of the Constitution, the applicants say nothing about the ordinary meaning of the words used in the section.

The position is now firmly established, that, a Constitution is not simply a statute which mechanically defines the structures of Government and the relations between the Government and its citizens.

Expressed differently, a Constitution is not an ordinary legal document, and, in interpreting it in any given case, it behoves a court to go beyond the literal meaning of the words used and to adopt a contextual, holistic, and purposive approach in order to give full effect to the provisions of the Constitution.

The interpretation accorded must be a generous rather than a legalistic one, aimed at securing the full benefit of the Constitution.

However, one must pay due regard to the language which has been used and to the traditions and usages which have given meaning to that language.

Where the words employed in the Constitution are clear and unambiguous, and allow of no absurdity or repugnance with the rest of the provisions in the Constitution, or with the context, then, such a literal interpretation should be adopted: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.

As a general rule, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of other statutes. One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and un-ambiguous and accord with the context, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that could not have been contemplated by the legislature: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.

Put another way, the provisions of the Constitution ought to be given their ordinary grammatical meaning if such meaning is compatible with their complete context: see Anna Colleta Chihava (2) Boas Mapuya (3) Zishe Chizani v The Provincial Magistrate, Francis Mapfumo N.O. (2) The Prosecutor General 2015 (2) ZLR 31 (S)…,.; Mupungu v Minister of Justice, Legal and Parliamentary Affairs and Others CC07-21…,.

WHETHER PARLIAMENT CAN AMEND A BILL

The applicants appear to accept that Parliament does have the power to amend a Constitutional Bill, but, state that such an amendment should not be 'major' or 'material'.

A consideration of the Constitution shows, that, in terms of section 117 of the Constitution, Parliament does have the power to make law and to amend the Constitution in accordance with section 328 of the Constitution.

Section 131(4) of the Constitution, in turn, provides that the procedure to be followed by the National Assembly and the Senate with regards to Bills is as set out in the Fifth Schedule of the Constitution. The Fifth Schedule, in Part 2, provides for the amendment of Bills by a house to which a Bill has been transmitted by the other House.

It is apparent from the foregoing, that, there is no specific power given to Parliament to amend a Bill in terms of the Constitution.

Section 139 of the Constitution, however, provides for rules known as Standing Orders made by either House, individually or jointly, on the recommendation of the Committee on Standing Rules and Orders.

Paragraph 12 of Part 4 of the Sixth Schedule provides that the Standing Orders that were in force immediately before the effective date continue in force as Standing Orders of the Senate and National Assembly until they are replaced or amended in accordance with the Constitution.

That provision is very clear, that, any Standing Orders in force before the effective date continue to have effect until replaced or amended.

It was counsel for the applicants argument, that, the Standing Orders are now inconsistent with the Constitution.

He argued further, that, as Standing Orders relate to ordinary Bills and not to Constitutional Bills, there is a lacuna in the law as there is no provision in the Constitution for an amendment during the Committee Stage.

I am unable to agree with counsel for the applicants contention in this regard.

The Constitution states, in no uncertain terms, that, the procedure for “Bills” is as set out in the Fifth Schedule.

The Fifth Schedule does not distinguish the procedure to be followed by Parliament with regards to ordinary Bills, on the one hand, and Constitutional Bills, on the other.

What this means is that, for purposes of the Constitution, an ordinary Bill is as much a Bill as a Constitutional Bill.

It is also clear that Standing Orders 141 and 142 treat a Constitutional Bill as any other Bill, the only significant difference between the two being, that, in introducing a Constitutional Bill in Parliament, the procedure provided for in section 328 of the Constitution must be strictly and religiously followed.

As noted elsewhere in this judgment, the Constitution provides for the Standing Orders that were in force to remain effective notwithstanding the coming into effect of the 2013 Constitution.

The Constitution, therefore, deliberately avoided the possibility of a lacuna in the procedures of Parliament by providing, in un-ambiguous terms, that the Standing Orders that were in existence on the effective date would remain operative until they are replaced or amended.

Section 139(2) of the Constitution is pertinent - it states, that, Standing Orders may provide for the manner in which a Bill may be passed.

Standing Order 143 of the National Assembly Standing Orders (Public Business), (Ninth Edition, 2020) provides for referral of Bills to an appropriate Portfolio Committee. It further provides that the Committee shall have fourteen days, in the case of an ordinary Bill, and ninety days in the case of a Constitutional Bill for presentation of its report at the second reading stage.

The Portfolio Committee is then required to table its report containing its deliberations and recommendations on a Bill at the second reading stage. Once a Bill has been read a second time, it is then committed to the Committee of the Whole House, which, in terms of Standing Order 154, can make amendments to the Bill.

Standing Order 154 provides as follows:

“Amendments in Committee

154(1) The committee of the whole House, when considering a Bill, has the power to make any amendments to the Bill under consideration by amending a clause or inserting new clauses at the appropriate places in the Bill:
(2)…,. (not relevant).”

Standing Order 154 remains extant. By command of the Constitution itself, it remains effective.

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

In the case of Mutasa and Anor v The Speaker of the National Assembly and Ors CC18-19 it was held…, that:“It would be absurd to come to a conclusion that an act done in terms of the provisions of the Constitution can violate someone's rights under the same Constitution. In ...

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Constitutionality of Statutory Provisions re: Constitutional Provisions

CC08-19 : WILLIAS MADZIMURE and SEKAI HOLLAND and OTHERS vs PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

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CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC18-19 : DIDYMUS MUTASA and TEMBA MLISWA vs SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and CHAIRPERSON ZIMBABWE ELECTORAL COMMISSION
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

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Constitutionality of Statutory Provisions re: Constitutional Provisions

CC08-19 : WILLIAS MADZIMURE and SEKAI HOLLAND and OTHERS vs PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

View Appeal CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC18-19 : DIDYMUS MUTASA and TEMBA MLISWA vs SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and CHAIRPERSON ZIMBABWE ELECTORAL COMMISSION Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

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CC08-19 : WILLIAS MADZIMURE and SEKAI HOLLAND and OTHERS vs PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC18-19 : DIDYMUS MUTASA and TEMBA MLISWA vs SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and CHAIRPERSON ZIMBABWE ELECTORAL COMMISSION
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC