The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance ...
The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.
They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance with the procedure for amending the Constitution prescribed by section 328 of the Constitution.
The allegations in the applications are the same. So are the issues. The two applications were consolidated and heard as one.
The applicants challenged the validity of the proceedings that culminated in the passing of Constitutional Amendment Bill (No.1) 2017.
The relief sought is by way of a declaratory order in the terms that:-
1. Parliament failed to fulfil the constitutional obligation provided for in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 1 August 2017 in the National Assembly and the Senate respectively.
2. Accordingly, the proceedings in Parliament, pertaining to Constitutional Amendment Bill (No.1) of 2017, on 25 July 2017 and 1 August 2017, be and is hereby set aside.
3. The first respondent pays costs of suit.
The Constitutional Bill was intended to amend section 180 of the Constitution insofar as it related to the procedure for the appointment of the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. The proposed amendment would also add to section 180 of the Constitution a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.
The application was filed on 6 September 2017. Before it could be heard, the President signed Constitutional Bill (No.1) 2017 into law.
The applicants filed another application under CCZ58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.
There are two distinct challenges to the passing of the Constitutional Bill.
The validity of the passing of the Constitutional Bill is challenged by impugning the proceedings in the National Assembly and the Senate.
In respect of the proceedings in each House, the contention is that the passage of the Constitutional Bill was in contravention of the amending procedure prescribed by section 328(5) of the Constitution. The grounds for the claimed violation of section 328(5) of the Constitution are different.
In respect of the proceedings in the National Assembly, the grounds raise factual questions, whilst the grounds in relation to the proceedings in the Senate raise a question of law.
The Court holds that the applicants have failed to show, on a balance of probabilities, that there was no voting conducted in the National Assembly. They also failed to show that the “Aye” votes did not reach the required minimum threshold of 180 votes.
The Court is of the view that the applicants have not been able to prove failure on the part of the National Assembly to act in accordance with the procedure for the amendment of the Constitution prescribed by section 328(5) of the Constitution.
The constitutional obligation imposed on Parliament, by section 328 of the Constitution, when exercising the power to amend the Constitution is to ensure that the procedures prescribed are complied with.
The Court entertains no doubt that, to amend the Constitution by the method prescribed by section 328, every requirement prescribed by the provision must be observed. The omission to comply with any one of the requirements is fatal to the validity of the proposed amendment.
The applicants established that the Constitutional Bill was not passed with the requisite two-thirds majority in the Senate. There was no compliance with the requirements of the procedure prescribed by section 328(5) of the Constitution.
The reasons for the decision now follow.
The Court notes the fact of the conflicting versions of facts and the interpretation of the applicable constitutional provisions. The granting of the relief sought by the applicants depends on one reality. It is discoverable by the finding of the facts on the matters in dispute, the declaration of the true meaning of the applicable constitutional provisions, and the application of the law to the facts.
The proposed amendment to section 180(1) of the Constitution was the cause of the events which culminated in the cause of action pleaded by the applicants for the relief sought. Nothing turned on the substantive value of the proposed amendment of the Constitution.
Before the proposed amendment, section 180 of the Constitution read as follows:
“180 Appointment of judges
(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.
(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -
(a) Advertise the position;
(b) Invite the President and the public to make nominations;
(c) Conduct public interviews of prospective candidates;
(d) Prepare a list of three qualified persons as nominees for the office; and
(e) Submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.
(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned….,.”
Section 180 of the Constitution would read as follows after the proposed amendment:
“180 Appointment of judges
(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.
(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.
(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.
(4) Whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must -
(a) Advertise the position; and
(b) Invite the President and the public to make nominations; and
(c) Conduct public interviews of prospective candidates; and
(d) Prepare a list of three qualified persons as nominees for the office; and
(e) Submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.
(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.
(6) The President must cause notice of every appointment under this section to be published in the Gazette.
(7) The offices of senior judge of the Labour Court and senior judge of the Administrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concerned, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.”...,.
The main contention by the applicants was that there was no proper vote in Parliament....,.
In opposing the application, the first (Parliament of Zimbabwe), the second (the Speaker of the National Assembly), and the third (the President of the Senate) respondents took the preliminary point to the effect that Parliament is not a legal persona. The contention was that Parliament cannot sue or be sued....,.
WHETHER PARLIAMENT CAN SUE OR BE SUED IN ITS OWN NAME
The purpose of the exercise of jurisdiction conferred on the Constitutional Court is to ensure that the other organs of the State, such as the Legislature, act in accordance with the rules prescribing the procedures for the exercise of the powers conferred on them by the Constitution.
Counsel for the first, second, and third respondents persisted with the point in limine that Parliament has no legal personality, and, for that reason, cannot sue or be sued in its own name.
He argued that section 118 of the Constitution, which provides that Parliament consists of the Senate and the National Assembly, does not create a legal persona. He reasoned that Parliament is created by way of constitutive membership. The contention was that the Speaker is the representative and spokesperson of Parliament in its collective capacity. He pressed the point further by arguing that the Speaker and the President of the Senate are cited nominally only. He contended that relief was being sought against a body with no legal personality.
Counsel for the applicants took a contrary view.
He argued that Parliament can sue and be sued. For this proposition, he relied on sections 116 and 118 of the Constitution. Section 116 of the Constitution provides that the Legislature consists of Parliament and the President. He argued that the words “body corporate” are not found in the Constitution. The contention was that the fact that Parliament is not described as a body corporate capable of suing and being sued does not rid it of its status as a constitutional body with justiciable obligations.
Counsel for the applicants further relied on section 167(2)(d) of the Constitution for the proposition that, in applications for relief in enforcing obligations imposed on it, Parliament itself has to be before the Court.
Section 167(2)(d) of the Constitution provides that the Constitutional Court makes the final decision whether the conduct of Parliament is constitutional.
The Court was of the view that the point in limine had no merit.
Parliament exists as a body established by the Constitution out of the joint functions of the two Houses of the National Assembly and the Senate. Whilst the two Houses exist separately for themselves, they exist together for Parliament. Out of the two Houses is constituted Parliament, which is an important body for the purposes of the constitutional order. Together with the President, Parliament is conferred with legislative power. It includes the power to amend the Constitution in accordance with the procedure provided for the purpose under section 328 of the Constitution.
There are provisions of the Constitution which impose obligations on Parliament.
The constitutional provisions impose the obligations on Parliament as directly enforceable law.
Section 119 of the Constitution imposes an obligation on Parliament to protect the Constitution and promote democratic governance in Zimbabwe. The obligation imposed on Parliament, by section 328(5) of the Constitution is that it must not pass a Constitutional Bill at the last reading in the National Assembly and the Senate except by affirmative votes of two-thirds of the membership of each House.
Section 45(1) of the Constitution provides that the provisions guaranteeing the protection and promotion of fundamental human rights and freedoms, enshrined in Chapter 4, are binding on the State and all executive, legislative, and judicial institutions.
Fundamental human rights are binding on Parliament as directly enforceable law.
Section 85(1) of the Constitution secures the fundamental rights and freedoms by making courts of law accessible to any person whose rights are violated by State authority.
That is the case where jurisdiction over the subject matter in dispute is not specified.
The Court would not be in a position to exercise its jurisdiction to determine whether the conduct of Parliament is constitutional, or whether Parliament has failed to fulfil a constitutional obligation, if Parliament, as a constitutional body, cannot be held accountable.
The provisions of section 167(2)(d) of the Constitution show that there is an acceptance that Parliament can be held accountable for failure to discharge its constitutional obligations. The effect of the provision is that the question of fulfilment of a constitutional obligation by Parliament is a matter for the exclusive jurisdiction of the Constitutional Court.
When the Court deals with an application for relief in terms of section 167(2)(d) of the Constitution, it essentially looks at Parliament in the conduct of its functions. The constitutional obligation Parliament would be accused of failing to fulfil would have been imposed on it, in its capacity as a body established by the Constitution, to exercise the legislative power conferred on it by the legislative authority derived from the people.
Counsel for the first, second, and third respondents relied on WOOLMAN and BISHOP, Constitutional Law of South Africa, 2edn Vol 1…,, and Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA)…,.
The contention that the case of Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA) is authority for the proposition that Parliament cannot be sued in its own name, because the Speaker is the representative and spokesperson of the Assembly in its collective capacity, must be taken in context.
The case raised for determination the question whether the Speaker of the Gauteng Provincial Legislature had the power to give an undertaking with regard to costs relating to the resolution of a dispute on the constitutionality of a Bill by the Constitutional Court in terms of section 98(2)(d) of the Constitution of the Republic of South Africa Act 200 of 1993.
The case did not speak to the question whether Parliament could sue or be sued in its own name.
The Supreme Court of Appeal interpreted section 98(9) of the Interim Constitution. The section provided that:
“(9) The Constitutional Court shall exercise jurisdiction in any dispute referred to in subsection (2)(d) only at the request of the Speaker of the National Assembly, the President of the Senate, or the Speaker of a provincial legislature, who shall make such a request to the Court upon receipt of a petition by at least one-third of all the members of the National Assembly, the Senate, or such provincial legislature, as the case may be, requiring him or her to do so.”…,.
It is clear that the provision explicitly gave the Speaker of the National Assembly the power to refer a dispute to the Constitutional Court.
As such, the case relied upon by the first, the second, and the third respondents does not take their case any further.
Paragraph 17.2 in WOOLMAN and BISHOP, Constitutional Law of South Africa, 2edn Vol 1…, relied upon by the first, the second and the third respondents as authority for the proposition that Parliament cannot sue or be sued in its name, is unhelpful. It reads as follows:
“The NA [National Assembly] is chaired by the Speaker. The Speaker is the representative and spokesperson of the Assembly in its collective capacity. The Speaker may therefore give binding undertakings on behalf of the NA. Such undertakings may even embrace the expenditure of moneys in relation to the legislative process. Though the Speaker may be removed by a resolution of the NA, the Speaker must not bow to political pressure and is 'required by the duties of his office to exercise, and display, the impartiality of a judge'.”
It is important to note that, in stating the above, the learned authors made extensive reference to the case of Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA).
It was the finding of the Supreme Court of Appeal that the Speaker of the Gauteng Provincial Legislature had the power to give an undertaking to minority political parties that the Legislature would cover the legal costs incurred in referring a pending bill to the Constitutional Court.
As such, the case is not authority for the proposition that Parliament cannot sue or be sued in its own name.
Regard must be had to Commission for the Implementation of the Constitution v Parliament of Kenya and Others [2013] eKLR Petition No.454 of 2012 where the High Court of Kenya…, said:
“40. I have been cautioned that the doctrine of separation of powers forbids this court from straying into what is seen as the sphere of Parliament. I have also been warned that 'Parliament of Kenya', as a State organ, cannot be sued by its own name.
I think the latter issue is effectively answered by the question of jurisdiction I have discussed above.
In any case, and on this I agree with Mr. Regeru, counsel representing CIC, that a reading of Article 261(5) and (6) contemplates Parliament as the Party to any Petition that may be filed therein. The provision reads that;
'If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.'
41. I therefore reject the respondent's contention that Parliament, as a State organ, cannot be sued by its own name at least for purposes of this suit.
I think the common law notions regarding capacity to be sued must yield to the Constitution which recognises Parliament as a State organ and imposes on it specific responsibilities. The doctrines of legal personality must be read against the beam of the rich provisions of our Constitution.”
A reading of section 167(2)(d), as read with section 119 of the Constitution, shows that Parliament may be sued in its name. It is a separate organ of the State which must be independently accountable for failure to act in accordance with the constitutional obligations imposed on it directly.
It is the obligations imposed by sections 119(1) and 328(5) of the Constitution, among others, that Parliament must fulfil.
It is in respect of those obligations that the Constitutional Court exercises jurisdiction in terms of section 167(2)(d) of the Constitution.
The Constitutional Court is the highest institutional expression of the rule of law.
Its duty is to enforce respect for and the maintenance of the constitutional order. The constitutional order is characterised by a fundamental system of values in terms of which validity of all legislation and other official acts or conduct must be assessed.
Thus, any branch or level of Government, including Parliament, that violates the Constitution or refuses to carry out a constitutional duty can be called to account in a proper proceeding before the Constitutional Court.
It would be in the interests of Parliament to have claims of violation of constitutional provisions imposing obligations on it directly determined by the Constitutional Court.
