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 Application
In the founding affidavit, the applicants made one material averment.
They averred, that, the judgment of the court, number CC04-20, was handed down one day before a national lockdown was imposed in response to the threat of and to contain the spread of the corona virus.
They further averred, that, the Regulations that were enacted to enforce the lock-down, initially, banned the sittings of the Senate totally as the second respondent was not classified as an essential service provider. It was barred from convening at all for any business.
Later, the Regulations were relaxed to allow the second applicant to convene for business, but, restricted the number who could lawfully attend any one sitting to less than 50 Senators, a number below the requisite quorum for the passing of a Constitutional Amendment Bill.
As a result, the applicants averred, that, the Senate could not sit to comply with the directive of the court within the period stipulated in the order.
Only the first respondent opposed the application.
On 20 October 2020, counsel for the third and fourth respondents wrote to the Registrar of this Court advising that he did not file opposing papers for the third and fourth respondents as they did not intend to oppose the order sought by the applicants.
The letter was a courtesy to the Court.
In addition to opposing the application on its merits, the first respondent raised two preliminary issues:
(i) It was contended, firstly, that, the applicants had no locus standi to procure the relief sought.
It was argued, both in the opposing affidavit and in the oral submissions by counsel, that, the passage of Constitutional Bills in the Senate is, in accordance with the principles of the separation of powers among the three arms of State, the prerogative of the Executive, which is given the function to prepare, initiate, and to implement national legislation by section 110 of the Constitution.
The argument proceeded to urge us to hold, that, the applicants, representing the Legislative organ of State, could not procure the relief sought as they lacked the mandate to initiate national legislation.
(ii) Secondly, it was argued, again in limine, that, the order sought in this application is unconstitutional, as it will offend against the provisions of section 147 of the Constitution.
Section 147 of the Constitution provides, that, upon the dissolution of Parliament, all proceedings pending at the time of dissolution are terminated and every Bill, motion, petition or other business lapses.
It was thus pressed upon us, that, Constitutional Amendment Bill (No.1) of 2017 lapsed when the 8th Parliament was dissolved to make way for the general elections of 2018.
The argument concluded by urging us to find, that, the Bill cannot be legitimately voted into an Act of Parliament by the 9th Parliament which is currently in session.
Regarding the merits of the application, the first respondent argued, that, the Senate had more than twenty sittings between the date of the judgment and the expiry of the stipulated one hundred and eighty days and could have, had it so desired, complied with the order of the Court during any one of these sittings.
The dates of such sittings, and the number of Senators in attendance at each sitting, were given.
It was thus argued, that, the restrictions imposed by the lock down regulations on the business of the Senate were but an excuse for the indifference of the Senate to the court order.
The Issues
The issues that arise for determination in this application are clear cut. Two arise in limine. These are:
(i) Firstly, whether the applicants have locus standi to bring this application; and
(ii) Secondly, whether the order of extension sought in this application is unconstitutional.
On the merits, there is only one issue. This is whether the applicants have made out a case for the extension of paragraph (b) of the order.
I now turn to discuss the issues in seriatim.
Whether the Applicants have Locus Standi
The first respondent invoked the application of the principle of separation of powers as the sole basis upon which to challenge the standing of the applicants to bring this application.
He correctly observed, that, the Constitution recognises and provides for the separation of powers among the organs of State.
He further drew the Court's attention to the provision of the Constitution which reposes in the Executive the function to prepare, initiate, and implement national legislation. He argued, that, the applicants, representing the Legislature, had no such function and therefore did not have the necessary mandate to enable them to comply with the court order.
It was the essence of the first respondent's argument, that, Parliament, particularly the Senate, as a chamber of Parliament, could not be foisted with the power of piloting a Bill through the house as that would blur the lines demarcating the mandate of the Legislature from that of the Executive in violation of the doctrine of the separation of powers.
To complete the argument, it was pressed upon us, that, the third respondent, who was a party to the proceedings under cases number CCZ57/17 and 58/17 respectively, ought to have filed the application seeking to extend the period within which to cure the defect attendant upon the passing of Constitutional Amendment Bill (No.1) of 2017 as the Executive, not Parliament, was in charge of the Constitutional Amendment agenda.
In the words of counsel, the applicants could not be dominus litis in this application, but, the third respondent could and ought to have been.
It presents itself clearly to me, that, had this application been an application to this Court at first instance, without any background to it, wherein the applicants were seeking an order granting them leave or power to pass Constitutional Amendment No.1 Bill, or any other legislation for that matter, through the Senate, the first respondent's argument might have detained us.
It is common cause, that, this application is not an application at first instance.
It is not laying out a new cause for our determination. It is based on the two applications that I referred to above. It is seeking to extend the lifespan of part of the order that was given in those earlier proceedings.
In a very broad sense, it can and ought to be regarded as a continuum of the earlier proceedings.
As indicated above, the background and context to this application are common cause.
The applicants, together with the third and fourth respondents, were respondents before this Court under cases number CCZ57/2018 and CCZ58/2018 respectively. Their participation in those proceedings was not and could not have been doubted or challenged as they had been called upon to defend the allegation, that, the second applicant had failed to fulfil a Constitutional obligation.
They had the right to be heard in defence of the second applicant in fulfilment of the demands of the audi alteram partem rule, an integral principle of natural justice.
They partially lost the case, but, by no means did they lose their standing as parties in the suit.
Their status, as parties in those proceedings, and, in proceedings ancillary and connected thereto, did not terminate at any stage during or after the proceedings.
Once clothed with standing as respondents in the earlier suit, the applicants retained such standing for the present application, which, as I have stated above, is a continuation of the cause between the parties.
