MAKARAU AJCC:IntroductionOn 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.The two applications, filed separately, and on different dates, were brought in ...
MAKARAU AJCC:
Introduction
On 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.
The two applications, filed separately, and on different dates, were brought in terms of section 167(2)(d) of the Constitution as read with Rule 27 of the Constitutional Court Rules 2016, alleging, that, the second applicant had failed to fulfil the obligation to pass Constitutional Bill (No.1) of 2017 in accordance with the Constitution.
The first application was filed in September 2017, before Constitutional Amendment Bill (No.1) of 2017 was presented to the President for assent, whilst the second application was filed in December 2017, after the Bill had been assented to and had been gazetted as an Act of Parliament.
In view of the fact, that, the allegations made in the two applications were the same and raised the same issues for determination, the applications were consolidated and heard as one.
No import was attached to the different legislative stages through which the amendment Bill passed as the singular order that was issued by the Constitutional Court, under judgment number CC04-20, in respect of both applications, reads:
“(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside, for the reason that a two-thirds majority vote was not reached in that House.
(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017, in para 1(a), shall become final.
2. The applicant's allegations, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.
3. The applicant's allegation, that, a two thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.
4. There is no order as to costs.”
The one hundred and eighty days stipulated in paragraph (b) of the order commenced to run on 1 April 2020 and expired on or about 28 September 2020.
The directive in that order was not complied with for reasons that are set out in the applicants founding affidavit.
On 25 September 2020, upon realising that the one hundred and eighty days would expire shortly thereafter, the applicants filed an urgent ex parte chamber application in this Court, securing, on 28 September 2020, a provisional order extending the period and concomitantly further suspending the coming into effect of the order of invalidity of the amendment to a date following the determination of this application.
On 6 October 2020, the provisional order was confirmed with the consent of the parties.
Simultaneously with the urgent ex parte application referred to above, the applicants filed this application, seeking an order for the extension of the 180 days within which the second applicant had to comply with the directive of the court.
The draft order did not seek an extension of the suspension of the order of invalidity of Constitutional Amendment Bill (No.1) of 2017.
The application was set down before us for determination.
The Jurisdiction of this Court
Whilst the issue of the jurisdiction of this Court did not arise, I wish to explain, in passing, that, notwithstanding that this application relates to an order that was issued by the full Bench of this Court, this Court, as presently constituted, has jurisdiction in the matter.
Prior to 22 May 2020, the Constitution required the full Bench of this Court to sit in all constitutional cases.
Paragraph 18(2) of the 6th Schedule to the Constitution, which was the governing provision then, and which provided for the transition between the repealed Constitution and the current Constitution, provided that:
“Notwithstanding section 166, for seven years after the publication date, the Constitutional Court consists of the Chief Justice and the Deputy Chief Justice; and seven other judges of the Supreme Court; who must sit together as a bench to hear any constitutional case.”…,.
The above provision gave way to section 166 of the Constitution, temporarily held in abeyance by the transitional provisions of the Constitution cited above, which, in subsection (3), grants this Court the requisite jurisdiction by providing as follows:
“Cases before the Constitutional Court -
(a) Concerning alleged infringements of a fundamental human right or freedom enshrined in the Constitution in Chapter 4, or, concerning the election of a President or Vice President, must be heard by all the judges of the court;
(b) Other than the cases referred to in paragraph (a), must be heard by at least three judges of the court;…,.”
It is further common cause, that, section 176 of the Constitution grants inherent jurisdiction to this Court to protect and regulate its own processes in addition to developing the law in the interests of justice and in accordance with the Constitution.
This application, being an application to extend the lifespan of an order given earlier by the Constitutional Court, is an incident of the exercise of the inherent jurisdiction of this Court to control and regulate its own processes.
