The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.
Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.
Initially, the applicant sought an order in the terms set out below:
“IT IS HEREBY DECLARED THAT:
1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:
Therefore:
(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.
(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.
(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.
2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.
3. 2nd Respondent must pay cost (sic) of suit.”
I have deliberately used the word “initially” for reasons that will shortly become apparent.
FACTUAL BACKGROUND
The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:
On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.
It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.
Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.
The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.
Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.
On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').
The operative part of that judgment reads as follows:
“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).
Accordingly, the following order is made –
(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 paragraph (1) shall become final.
2. The applicants allegation, 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 applicants 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.”
For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.
As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.
On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:
“Accordingly, I make the following order:
1. The application is granted.
2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.
3. Each party shall bear its own costs.”
I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.
In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.
On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).
The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.
He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.
The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.
However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.
At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.
All the respondents opposed the application.
They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.
APPLICANT'S SUBMISSIONS
On 15 March, the parties then advanced their oral submissions in respect of the application.
Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.
To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.
The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.
Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.
Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.
In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.
Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.
He formally abandoned the second paragraph of the applicant's draft order set out above.
He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.
Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.
RESPONDENTS CASE BEFORE THIS COURT
Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:
(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.
(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.
On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.
Counsel for the third respondent also put up ardent opposition to the application.
Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:
(i) The consideration of a Bill by the National Assembly;
(ii) The consideration of the same Bill by the Senate;
(iii) The President's assent to the Bill as the last step;
Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.
His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.
Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.
All the respondents prayed for the dismissal of the application.
AMICUS CURIAE'S SUBMISSIONS
Mr Zhuwarara, the amicus curiae, made submissions last.
His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.
On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.
While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.
Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.
Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour.
PRELIMINARY OBJECTIONS
The respondents raised several preliminary objections in these proceedings. However, in their oral submissions they emphasized and focused only on the following:
(a) That, there is no cause of action against the respondents.
(b) That, it was improper to cite the first respondent in an application under section 167(2)(d) of the Constitution.
WHETHER THERE IS A CAUSE OF ACTION AGAINST THE RESPONDENTS
While counsel for the first and second respondents is of the view, that, there cannot be any perceivable cause of action against the respondents as they were acting in accordance with an order of this Court, counsel for the third respondent considers the cause of action to be unclear.
Without exception, the Rules require an applicant to set out all essential averments that are necessary to clarify and motivate the cause of action: see Rule 14(4)(d) of the Constitutional Court Rules.
See also Apex Holdings (Pvt) Ltd (in liquidation) & Anor v Venetian Blinds Specialists CC11-19…,.
This rule is in line with the salutary principle of pleading, which has become the gold standard in our jurisdiction, that, an application stands or falls on the founding affidavit: see Kufa & Anor v President of the Republic of Zimbabwe & Ors CC22-17…,.; Chani v Justice Hlekani Mwayera & Ors CC02-20…,.; Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs CC14-20…,.; and Mpofu v ZERA & Ors CC13-20…,.
A failure to set out the cause of action entitles a respondent to seek the dismissal of an application as of right: see HERBSTEIN and Van WINSEN “The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa” 5th Ed. Vol 1…,.
The requirements of an application made in terms section 167(2)(d) of the Constitution are that one must identify a functionary [the President/Parliament] and a constitutional obligation that the functionary is alleged to have failed to fulfil: see Chirambwe v President of the Republic of Zimbabwe & Ors CC04–21…,. and Mliswa v Parliament of the Republic of Zimbabwe CC02–21…,.
It automatically follows, that, the applicant cannot sustain a cause of action against the first respondent because the first respondent is not a functionary against whom an application in terms section 167(2)(d) of the Constitution can be made.
Thus, the case as against the first respondent stands to be struck off without further ado....,.
1. The claim against the first respondent is struck out.
