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 qual“180 Appointment of judgesified 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.”
FACTUAL BACKGROUND
The main contention by the applicants was that there was no proper vote in Parliament.
The allegations of fact on which the applicants' cause of action was based had no support from the evidence produced.
That was the case in respect of what they alleged happened in the National Assembly.
NATIONAL ASSEMBLY
The applicants made the following allegations of fact.
There were 234 Members of the National Assembly present in the House on 25 July 2017 out of a total number of 270. This appears from the Order Paper. There was a debate on the Mid-Term Budget Review and the Economic Outlook Statement presented by the Minister of Finance on 20 July 2017.
The fourth respondent (Emmerson Mnangagwa) moved a motion to adjourn the debate in favour of the presentation of the Constitutional Bill.
There was argument between the second respondent (the Speaker of the National Assembly) and Members of the opposition. Eventually, the second respondent agreed with the fourth respondent. He ruled that the House was to proceed with the third reading of the Constitutional Bill.
The first applicant (Innocent Gonese) moved a motion in terms of Standing Order 152(3) that the Constitutional Bill be sent back to the Committee stage to ensure that it incorporated matters that had not been included in the text.
The motion was disallowed by the second respondent.
Bells rang so that voting could commence. According to the applicants, the House was not properly divided at this stage.
A point of privilege was raised to the effect that there had to be a secret vote.
The raising of the point, that the voting be by secret ballot, was based on the suspicion that some Members of the ruling party had been intimidated to vote for the Constitutional Bill. The contention was that a secret ballot was necessary in the circumstances.
The second respondent ruled that the vote was not going to be by secret ballot.
While the point of privilege was being considered, the tellers were counting Members. The Members who were sitting on the Government benches were counted as part of the “Aye” vote. Those who sat on the opposition benches were counted as being part of the “Noe” vote.
The tellers told the second respondent that the “Aye” votes were 187.
The first applicant raised an objection and pointed out that the second respondent had the obligation to ascertain whether there were more than 180 Members in the House. He argued that the second respondent was obliged, by Standing Order 127, to separate Members who voted in favour of the Constitutional Bill from those who voted against it.
The applicants aver that the process was not in accordance with Standing Order 127. They relied on the un-revised Hansard and the Order Paper to advance their argument.
According to the unrevised Hansard, there was commotion in the House following the communication to the second respondent by the tellers that 187 Members had voted in favour of the Constitutional Bill.
Some Members left the House.
The second respondent acceded to the request that the counted numbers should be verified.
The Sergeant-at-Arms was ordered, by the second respondent, to conduct a recount.
After the recount, the un-revised Hansard records that the second respondent said:
“After the verifications, the figure given of the results of the count is: Ayes – 182 and the Honourable Members who left are Honourable Matuke, Honourable Chinomona, Honourable Ruvai, Honourable Nyamupinga and Honourable Muchenje. Those against – 41. The number of affirmative votes recorded is not less than two-thirds of the membership of the House.
I, therefore, declare the final votes in the House on the Constitutional Amendment Bill to have been in accordance with the provisions of section 328(5) of the Constitution.”
According to the applicants, the irregularities in the vote were as follows -
1. When the bells were rung, the doors of the Chamber were closed. Before the vote was concluded, and before the verification was conducted, an Honourable Member walked in.
2. The second respondent breached the Standing Orders by opening the doors before the process of the vote was completed.
3. No vote took place and the verification process became the vote. The counting of the votes was based on an assumption that those on the Government benches supported the motion. This is not permitted by the Standing Orders and the Constitution.
4. The second respondent failed to properly divide the House, as is required by the Rules.
5. The second respondent did not allow the Chief Whips and the Sergeant-at-Arms, together with the tellers, to move around to make the necessary verifications after the vote.
6. Honourable Pedzisayi was counted twice for the “Aye” votes according to the Order Paper.
The applicants averred that the names of those alleged to have voted with the “Ayes” appear in both the un-revised Hansard and the Order Paper. According to both sources, there were 182 “Aye” votes. Those who voted with the “Ayes” included the names of Honourable Beremauro G, Honourable Mukanduri and Honourable B Tshuma. These Members were not in Zimbabwe on 25 July 2017. They were in Uganda on a Parliamentary visit.
The allegation was also that Honourable D Marapira and Honourable G Mabuwa, who were recorded as part of the Members who voted in favour of the Constitutional Bill, were absent on official leave.
The applicants said that Honourable M Chikukwa, Honourable M Hlongwani, Honourable P Dutiro, Honourable Y Simbanegavi and Honourable D Ndlovu were not present. They were, nonetheless, recorded as being part of the “Aye” vote.
According to the applicants' calculation, there were 171 “Aye” votes against a required threshold of 180 votes in favour of the proposed amendment to the Constitution.
There was a contradiction in the averments.
The applicants alleged that voting did not take place in the National Assembly. They also said that the vote was conducted in an irregular manner. They averred that the required minimum threshold of 180 votes in favour of the Constitutional Bill was not reached in the National Assembly.
The applicants alleged that the Constitutional Bill was passed in the Senate by 53 votes. They alleged that the minimum two-thirds threshold for votes in favour of a Constitutional Bill, in the Senate, is 54 votes....,.
On the merits, the first and the third respondents averred that the procedural requirement that there must be an affirmative two-thirds vote for a valid Constitutional amendment was complied with.
The second respondent averred that he acted in accordance with Standing Order 127 in the conduct of the vote.
The bells were rung, and all Members present moved into the Chamber. He then appointed tellers and divided the House, by directing that the “Ayes” should go to the right and the “Noes” should go to the left. An objection was raised when the House had already been divided. The unrevised Hansard relied on by the applicants did not capture everything that transpired. The revised Hansard and the audio recording show that voting was conducted properly. There were 182 “Aye” votes as recorded in the corrected Hansard, unlike the numbers relied on by the applicants which are based on the unrevised Hansard.
The first and the second respondents relied on the Journal of the House (“the Journal”) and alleged that it was the correct record of the proceedings of the House. They alleged that the un-revised Hansard, relied upon by the applicants, was subsequently corrected after reconciliation with the audio recording.
Their position was that, contrary to the allegations made by the applicants, the audio recording captured both the division of the House and the conducting of the vote.
The first and the second respondents contended that the applicants' case was based on the report in the unrevised version of the Hansard. The names of those Members who voted were corrected in the Journal in terms of Standing Order 131. They explained that, in terms of the procedure of the Journals Office and the Hansard Operational Manual, the corrected version of the Hansard and the corrected Votes and Proceedings were filed in the Journal of the House, which is bound at the end of each Session.
The Master Copy of the Hansard was prepared by the Hansard Reporters after they had gone through the un-revised version of the Hansard while listening to the audio recording.
The Order Paper relied on by the applicants contained errors, which were corrected using this method.
The second respondent conceded that, according to the corrected records, Honourable Mukanduri, Honourable Beremauro and Honourable Tshuma were out of the country. However, he maintained his position that Honourable Marapira and Honourable Mabuwa were present during the proceedings in the House relating to the voting on the Constitutional Bill. Their inclusion on the list of Members absent with leave was an error which was corrected.
The second respondent maintained that, whilst the Hansard is the official report of the proceedings in Parliament, it does not necessarily constitute an accurate record of what transpired on the day in question. The accurate record is contained in the Journal, which is bound at the end of each Session after it has been proof-read and corrected if necessary. The Journal is a security item and is kept by the Clerk of Parliament.
The second respondent stated in the opposing affidavit, in part, as follows:
“I conducted the vote in terms of Standing Order 127. The un-revised Hansard relied upon by the applicants did not capture that part. The audio record recording at minute 01:58:16-20 (which audio will be played at the hearing if required) and the corrected Hansard (vide 'CC' hereto) clearly show that the voting was done properly…,.
It is also important for this Court to note that, unlike the unrevised Hansard, the Journal (vide Annexure 'BB' hereto) is the correct record of proceedings. See also the alterations of the Master Copy of the Hansard (vide Annexure 'CC') before submitting it to the printers to produce Annexure 'DD' hereto which forms part of the Journal….,.
These allegations are denied.
The audio recording clearly shows what transpired…,. The applicant relied on the 'Unofficial Report Un-revised' Hansard as shown on its cover and the 'Advance copy - Uncorrected Votes and Proceedings' which the applicant is referring to as the 'Order Paper', which may, at times, contain errors, as in this case, and such errors in the names of the division list were corrected in the Journal of the House in terms of Standing Order 131 of the Standing Rules and Orders of the National Assembly.”
The second respondent took the argument further.
He averred that the unrevised Hansard left out four Members, Honourable Muchinguri, Honourable Mukupe, Honourable Madzinga and Honourable D Mpofu, who were present and voted with the “Ayes”. This was confirmed by the Attendance Register and the corrected copy of Votes and Proceedings.
According to this record, the “Aye” votes remained at 182.
It was also the second respondent's contention that the Attendance Register and the corrected copy of the Votes and Proceedings showed those Members who were present and voted for the proposed amendment of the Constitution. According to these records, Honourable Chikukwa, Honourable Hlongwani and Honourable Dutiro were present and voted “Aye”.
In terms of the Attendance Register compiled by the Sergeant-at-Arms, Honourable Simbabegavi was marked absent but she came late and participated in the voting and voted with the “Ayes”.
The second respondent alleged that the Sergeant-at-Arms failed to correct the error.
As for Honourable D Ndlovu, the second respondent said there was an error. The intended entry was Honourable A Ndlovu.
In regard to the issue that Honourable Pedzisayi was counted twice, he admitted that there was an error, which was corrected in terms of Standing Order 131.
The second respondent maintained that the Journal confirmed that 182 Members voted in favour of the Constitutional Bill. He contended that the Constitutional Bill was passed in accordance with the procedure prescribed by section 328(5) of the Constitution.
Finally, the first and the second respondents averred that, at the verification of the votes, the five Members who had voted, but subsequently left the House, were not included in the 182 “Ayes”. They had initially been counted as part of the 187, but were excluded following the verification exercise because they had left before the verification was conducted.
The applicants alleged, in their answering affidavits, that the documents relied on by the first, the second and the third respondents were fabricated, doctored, and tampered with.
The applicants relied on the unrevised Hansard and the Order Paper. They rejected the corrections made to the documents.
The first applicant averred, in the answering affidavit, as follows:
“I also wish to state that the recordings of Parliament, on the 25th of July 2017, must have been recorded and captured on video.
Surely, this Honourable Court has powers, which I do not have, of summoning both the video recording of what happened in Parliament which I notice the respondents do not refer to in their papers.”
THE SENATE
The vote in the Senate was conducted on 1 August 2017.
The applicants relied on Order Paper 75, titled “ADVANCE COPY - UNCORRECTED”, to outline the events that took place in the Senate on the day in question.
The applicants' position, regarding the proceedings in the Senate, was that there was a vote. The contention was that the vote in favour of the proposed amendment to the Constitution did not reach the minimum two-thirds majority required by section 328(5) of the Constitution.
The Order Paper, and the un-revised Hansard, showed that 53 Senators voted in favour of the Constitutional Bill. The composition of the Senate is eighty Members. The applicants contended that the minimum threshold to be reached by votes in favour of a proposed amendment of the Constitution, in accordance with the requirements of section 328(5) of the Constitution, was fixed by reference to the total number of eighty Senators prescribed by section 120(1) of the Constitution.
Two-thirds of 80 is 54 and not 53.
The applicants argued that the Constitutional Bill was not passed by the Senate in accordance with the procedure prescribed by section 328(5) of the Constitution.
The third respondent opposed the application insofar as it related to the Senate. Her argument was as follows:
The Constitutional Bill was passed with the requisite minimum two-thirds majority. The membership of the Senate was reduced from eighty to seventy-nine after the death of Senator Alfina Juba on 09 July 2017.
In their answering papers, the applicants averred that the membership of the Senate, for the purpose of compliance with the requirements of section 328(5) of the Constitution, does not fluctuate. It remains at eighty. They contended that there is need to protect the integrity of the Constitution by requiring a two-thirds majority calculated against a complement of eighty Members, notwithstanding the death of a Senator....,.
PRINCIPLES GUIDING THE AMENDMENT OF THE CONSTITUTION
The interpretation and application of the provisions of section 328 of the Constitution, in the context of the effect of the principles on the amendment of the Constitution, disclose the invalidity of the passing of the Constitutional Bill in the Senate.
The process confirms the constitutionality of the conduct of the National Assembly.
A Constitution is a special document. It is an embodiment of selected legal rules which establish and regulate or govern the Government of a country. The Constitution contains the principles and values of governmental organisation. It is not just a fundamental law of Government. It is a form of Government established by the people, in the exercise of their sovereignty, for their own purposes. The people declared the Constitution to be the supreme law of the land. It imposes obligations that are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of Government at every level. The people made it a limited Government. It is a popular Government. Those who administer it are responsible to the people. The powers conferred, the restrictions which are imposed, and the authorities which are exercised, the organisation and institutions thereof which are provided for under the Constitution, are, in each case, for the same object – the common benefit and happiness of the governed.
The people provided, in the Constitution itself, that it may be amended. They prescribed the procedures for the amendment of the Constitution to ensure that the action taken in compliance with these procedures achieves the object of ensuring that the proposed amendment is for the common benefit of the people.
The fact that the Constitution is a fundamental law by which a limited Government, and the mode of its operations is established, explains the rationale behind the conditions and restrictions imposed on the Houses of Parliament in the exercise of the power to amend the Constitution.
The power to amend the Constitution is a limited power. It is conferred on the Legislature for the purpose of ensuring that it is used to produce good governance and the happiness of the people.
JAMES A. GARDNER, in an article titled 'What is a State Constitution', 24 Rutgers L.J. 1025 (1993)…, expressed his view thus:
“On this view, State Constitutions are not expressions of the distinctive fundamental values or character traits of a set of heterogeneously sovereign peoples. Rather, State Constitutions are simply local articulations of national values; they express not our differences, but our fundamental commonality and our mutual commitment to a shared national project.”
MAHOMED J, in S v Makwanyane and Another 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1…, opined:
“All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its Government and its national institutions; the basic premises upon which judicial, legislative, and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future.
In some countries, the Constitution only formalises, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future.”
The Constitution represents what a nation holds dearly. It represents the areas of common interest of the whole citizenry. The Constitution is the conscience of the people.
Amendment of the Constitution does not extend to replacement of the Constitution.
The process of amending the Constitution includes variation, alteration, modification, addition to, deletion of, or adaptation of existing Constitutional provisions.
The Constitution is not an existential order of power. It is founded on the fundamental principles and values listed in section 3. These foundational principles and values are designed to inspire and provide the basis for the rationale for the justification of any legislative action or conduct in the exercise of public authority. They show that the Constitution is value-oriented. It is a fundamentally normative Constitution embracing values, rights, and duties.
The power to amend the Constitution is conferred on the Legislature. It is exercisable by the two Houses of Parliament, on the same Constitutional Bill, whilst they are sitting separately.
The principle of amendability of the Constitution underscores the fact that Government pre-supposes the existence of a perpetual mutability in its own operations for the benefit of those who are its subjects. Representative government also pre-supposes the existence of a perpetual flexibility in adapting itself to the wants of the people, their interests, their habits, their occupations and their infirmities.
The principle of amendability of the Constitution is counter-balanced in its application and effect by the principle of rigidity of the Constitution.
In the exercise of the power to amend the Constitution, conferred expressly and exclusively on it, the Legislature is subjected to a special process. The process is defined by mandatory procedures, compliance with which determines whether the object of amending the Constitution has been accomplished.
The procedure for the exercise of the power to amend the Constitution, prescribed by section 328 of the Constitution, marks the Constitution as a controlled or rigid Constitution. The obligation imposed by section 328 of the Constitution, to comply with the prescribed procedure when exercising the power to amend the Constitution conferred on the Legislature by section 117(2)(a), distinguishes the exercise of the power to amend the Constitution from the exercise of the power to amend ordinary legislation.
The distinction gives effect and value to the foundational principle of supremacy of the Constitution.
In Mike Campbell (Pvt) Ltd and Anor v The Minister of National Security Responsible for Land, Land Reform and Resettlement and Anor 2008 (1) ZLR 17 (S)…, the Court said:
“Zimbabwe has a controlled Constitution. Its provisions cannot be amended, added to, or repealed without compliance with the prescribed special formality.
Dicey supra at pp118-119 says that a controlled Constitution 'is one under which certain laws, generally known as constitutional or fundamental laws, cannot be changed in the same manner as ordinary laws'…,.
Zimbabwe, like many other nations with controlled Constitutions, has, in the Constitution, a section which prescribes, with meticulous precision, the special procedure for the alteration of its fundamental laws.”
In McCawley v R 1920 AC 691 LORD BIRKENHEAD classified Constitutions as “controlled” and “uncontrolled”, depending on the presence or absence of some extraordinary procedure to be adopted for amendment of the Constitution. At p704 he observed:
“Many different terms have been employed in the text-books to distinguish these two contracted forms of Constitution. Their special qualities may perhaps be exhibited as clearly by calling the one a controlled and the other an uncontrolled Constitution as by any other nomenclature. Nor is a Constitution debarred from being reckoned as an uncontrolled Constitution because it is not, like the British Constitution, constituted by historic development but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth.
It is of the greatest importance to notice that where the Constitution is uncontrolled the consequences of its freedom admit of no qualification whatever. The doctrine is carried to every proper consequence with logical and inexorable precision.
Thus, when one of the learned judges in the Court below said that, according to the appellant, the Constitution could be ignored as if it were a Dog Act, he was, in effect, merely expressing his opinion that the Constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject-matter.”
JAMES BRYCE, in 'Studies in History and Jurisprudence' Vol 1 p 166, classified Constitutions as “rigid” and “flexible”. He said:
“A 'Rigid Constitution' is one which enjoys an authority superior to that of the other laws of the State and can be changed only by a method different from that whereby those other laws are enacted or repealed.
'Flexible Constitutions', on the other hand, are those which stand upon an equal footing with other laws and which can be changed by the same process as other laws.”
'Flexible Constitutions' are associated with Parliamentary democracies, while 'rigid Constitutions' are associated with Constitutional democracies.
In “rigid Constitutions”, the Judiciary is the guardian of the Constitution.
It has the power to determine whether all functions of the State are carried out according to the provisions of the Constitution. The Court also has power to declare a law unconstitutional if it is not enacted in compliance with Constitutional provisions.
Implied repeal is not permitted when it comes to the Constitution, because the Constitution is a sacrosanct document which should not be tinkered with at will. The doctrine of implied repeal is ousted by section 328(2) of the Constitution, which provides:
“(2) An Act of Parliament that amends this Constitution must do so in express terms.”
The above provision is another example which reinforces the notion that the amendment of the Constitution is a limited power, the exercise of which is strictly controlled.
A Constitution is a supreme law, which is intended to guarantee stability to a nation. It is made difficult to change to protect it from being subject to impulses of majority, temporary excitement, and popular caprice or passion.
In dealing with the importance of rules on constitutional amendment, ALBERT RICHARD, in an article titled 'Amending Constitutional Amendment Rules' (March 9, 2014), International Journal of Constitutional Law 655 (2015); Boston College Law School Legal Studies Research Paper No.336, said:
“No part of a Constitution is more important than the rules that govern its amendment and its entrenchment against it.
In Constitutional democracies, formal constitutional amendment rules constrain political actors by entrenching procedures for altering the constitutional text. Amendment rules thereby distinguish constitutional law from ordinary law, the former generally requiring more onerous requirements to change than the latter.
Amendment rules also pre-commit successor political actors, create a popular check on the judicial branch, channel popular will into institutional dialogue, and express constitutional values.
Perhaps their most important function, however, is to serve as a corrective device: amendment rules authorise political actors to update the constitutional text as time and experience expose faults in its design and as new challenges emerge in the constitutional community.”
Section 328 of the Constitution provides, in part:
“328 Amendment of Constitution
(1) In this section —
'Constitutional Bill' means a Bill that seeks to amend this Constitution;…,.
(2) An Act of Parliament that amends this Constitution must do so in express terms.
(3) A Constitutional Bill may not be presented in the Senate or the National Assembly, in terms of section 131, unless the Speaker has given at least ninety days' notice in the Gazette of the precise terms of the Bill.
(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so.
(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House.
(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —
(a) Within three months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and
(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted, without delay, to the President, who must assent to and sign it forthwith.”
The amendment of different Constitutional provisions is not done by the same process.
An amendment of a provision other than Chapter 4, Chapter 16 and section 328 of the Constitution requires affirmative votes to be not less than two-thirds of the membership of each House of Parliament.
An amendment of a provision under Chapter 4, Chapter 16 and section 328 requires a referendum in addition to the special majority referred to in section 328(5) of the Constitution.
The Constitution thus follows the tradition whereby certain subjects are too important to be amended by a special majority in Parliament. This means that the issue of constitutional amendment is not an ordinary provision. It is one which enjoys special protection by the Constitution itself.
When interpreting section 328(5) of the Constitution, this underlying principle ought to be borne in mind.
INTERPRETATION OF SECTION 328(5) OF THE CONSTITUTION
The question for determination is whether section 328(5) of the Constitution requires that the amount of the votes in support of the Constitutional Bill must not be less than two-thirds of the total number of persons the Constitution declares that the House consists of. Does the subsection mean that the votes must not be less than two-thirds of the Members of the House who are alive and capable of voting at the time the voting is conducted?
The two Houses of Parliament interpreted the phrase “the membership of each House”, as used in section 328(5) of the Constitution, differently.
The National Assembly interpreted the words to mean the total number of persons the Constitution has declared the House to consist of as its Members. The Senate interpreted the phrase to mean the number of Members of the House who are alive and capable of voting at the time the vote on the proposed amendment to the Constitution is taken at the third reading.
The interpretation must take into account the language used, the context, the subject-matter, the purpose, and the object of section 328(5) of the Constitution. The Court must bear in mind that it is the Constitution it is construing.
Section 328(5) of the Constitution is a fundamental law which prescribes the procedural and substantive requirements for a valid amendment of the Constitution. It sets out an objective standard for the determination of the validity of the amendment. The words “the membership of each House”, as used in section 328(5) of the Constitution, refer to an element of the prescribed requirements of the objective standard for the measurement of the validity of the amendment of the Constitution which is peculiar to each House.
The requirement that the amount of the vote in favour of the Constitutional Bill must be not less than two-thirds of the membership of the House is applicable to votes by each House. The only factor of the requirement of the objective standard for the measurement of the validity of the proposed amendment which differentiates one House from the other, and relates to its membership, is the total number of persons the Constitution declares to be what each House consists of.
Section 120(1) of the Constitution provides that the Senate consists of eighty Senators, who become its members by being elected by the electorate in the manner prescribed. Section 124(1) of the Constitution provides that the National Assembly consists of two hundred and seventy Members, who are elected in the manner prescribed.
It is necessary to consider the meaning and purpose of other provisions of the Constitution that have a bearing on the subject of section 328(5) of the Constitution. No single constitutional provision may be taken out of its context and interpreted by itself.
The fundamental principle is that a Constitution is a mode of limited government, characterised by the apportionment and distribution of powers. The powers concerned must be exercised for the benefit of the people as a whole in accordance with the constitutionally prescribed procedures.
Section 117(2)(a) of the Constitution expressly provides that the power to amend the Constitution conferred on the Legislature must be exercised in accordance with section 328 of the Constitution.
Sections 120(1) and 124(1) of the Constitution are the laws governing the composition of the Houses. The contents of each provision provide the meaning of the words “the membership of each House”, as used in section 328(5) of the Constitution.
The subject-matter of section 328(5) of the Constitution is the objective standard for the measurement of the validity of the amendment.
As an element of the standard by which the validity of the amendment of the supreme law of the land is to be measured, the membership of each House has to be a constant element enjoying a degree of permanence. Considering the fact that amendment of section 328(5) of the Constitution is rendered more difficult by the requirements of section 328(9) of the Constitution, the membership of each House, in the context of section 328(5) of the Constitution, is a constant factor.
Section 138(1) of the Constitution provides that all questions proposed for decision in either House of Parliament are to be decided by a majority of the votes of the Members of that House present and voting.
The provision of a special procedure, under section 328 of the Constitution, for the exercise of the power to amend the Constitution, means that the procedure prescribed by section 138(1) of the Constitution is not applicable to the special process of amending the Constitution.
The exclusion of the procedure for deciding questions proposed for decision in either House of Parliament, prescribed in section 138(1)(a) of the Constitution, from the special process of amending the Constitution is evidence of the intention of the makers of the Constitution to protect the Constitution from fluctuating standards for the measurement of the validity of the amendment of the Constitution.
The effect of the contention by the respondents that the words “the membership of each House”, as used in section 328(5) of the Constitution, mean the total number of Members of the House who are alive and capable of voting at the time the vote is taken is the importation of the procedure prescribed by section 138(1)(a) of the Constitution into the special process of amending the supreme law of the land.
The interpretation of the words “the membership of each House”, as used in section 328(5) of the Constitution, to mean the total number of persons the Constitution declares each House to consist of is consistent with the object of the provision.
The purpose and object of the requirements of the procedure for the exercise of the power to amend the Constitution, prescribed by section 328(5) of the Constitution, is to ensure that the amendment of the Constitution is of common benefit to the people. The procedural and substantive requirements of section 328(5) of the Constitution ensure that there is representation of the people and protection of their interests in the process of the amendment of the Constitution.
In making the Constitution, and committing themselves to it as the supreme law of the land, the people imposed on themselves the obligation to accept an amendment of the Constitution effected by a vote in accordance with the standard of validity prescribed by section 328(5) of the Constitution.
The meaning of the words “the membership of each House” as the whole number of persons the Constitution has declared the House to consist of receives support from the provisions of section 344(3) and (4) of the Constitution. The section reads, in relevant part, as follows:
“344 Quorum and effect of vacancies in Constitutional bodies
(1)…,.;
(2)…,.;
(3) Any reference in this Constitution to the votes of —
(a) Half of the membership of a body whose membership is not a multiple of two;
(b) Two-thirds of the membership of a body whose membership is not a multiple of three; or
(c) Three-quarters of the membership of a body whose membership is not a multiple of four; is to be interpreted to mean that the number of votes must be not less than the whole number next above one-half, two-thirds or three-quarters, as the case may be, of the body's membership.
(4) Any reference to the total membership of Parliament is a reference to the total number of persons who, for the time being, are Members of Parliament.”
Counsel for the applicants argued that the Constitution maintains a distinction between section 344(4) and section 328(5).
He submitted that the Constitution must be interpreted purposively and not in the abstract.
He took the point further and argued that section 344 is not a substantive section. It is a definition section. There is a difference in the construction of the two. Any other interpretation would render section 328(5) meaningless. The provision is meant to make constitutional amendment difficult.
He finally argued that section 328 of the Constitution grades different provisions based on how important they are.
Counsel for the first, second, and third respondents a contrary view.
He argued that the first port of call is the definition of “Member of Parliament” in the Constitution. 'Membership' is derived from 'Member of Parliament'. Hence, in order to understand what “membership” means, regard has to be had to the definition of “Member of Parliament”. Membership depends on the construction of 'Member of Parliament'.
He further contended that the law does not allow for a vacuum.
The interpretation to be given to the provision must be one which best achieves the intention of the lawmakers.
Counsel for the first, second, and third respondents urged the Court to find, in respect of the Senate, that the relevant number is 79. He said the reason was that section 328(5) of the Constitution relates to “membership”, which is derived from “Member”. 'Member of Parliament' relates to a person who is alive and is able to carry out Parliamentary business.
Section 344(4) of the Constitution is related to sections such as section 109(1), which relates to a vote of no confidence in Government, section 114(2), which relates to the revocation of a declaration of war, section 113(2), which relates to the approval of a declaration of a State of Emergency, section 122(8)(f), which relates to the vacation of office by the President of the Senate, and section 126(8)(f), which relates to the vacation of office by the Speaker.
The provisions, which give substance to section 344(4) of the Constitution, show that its application is determined by the subject-matters to which the specific provisions relate and is confined to those provisions. The provisions of section 344(4) cannot be interpreted as giving meaning to section 328(5) of the Constitution. To the contrary, section 344(4) of the Constitution sheds light on what section 328(5) of the Constitution does not mean.
There is no provision which is similar to section 328(5) in the Constitution.
The contrast can be seen in section 113(6) of the Constitution, which provides:
“113(6) If, by a resolution passed by a majority of the members present at a joint sitting of the Senate and the National Assembly, Parliament resolves that a declaration of a State of Public Emergency —…,.”…,.
This provision relates to Members “present”.
The majority that carries the day depends on the Members actually present and voting.
Another example of a similarly worded provision is section 138 of the Constitution, which provides:
“138 Voting and right of audience in Parliament
(1) Except where this Constitution provides otherwise —
(a) All questions proposed for decision in either House of Parliament are decided by a majority of the votes of the Members of that House present and voting;…,.”
The provision under which the Constitution is amended does not relate to the presence of the Members. Its provisions are an exception referred to in section 138(1) of the Constitution.
It means that, in terms of section 328(5) of the Constitution, the controlling concept is the membership of the House, which relates to the total number of persons the House is declared, by the Constitution, to consist of. The number does not fluctuate since it is fixed by the Constitution.
It is a definite number.
When the provisions are contrasted, it becomes apparent that “the membership of each House”, as used in section 328(5) of the Constitution, does not mean persons who are, at any given time, Members of Parliament.
Section 328(5) of the Constitution has two references to membership of the House. The first relates to the exercise of the power to vote. The vote can only be cast by Members of Parliament who are present and voting. The second reference is to the objective standard for the measurement of the votes cast in favour of the proposed amendment to the Constitution. It is the requirement of that objective standard that the votes in favour of the proposed amendment must not be less than two-thirds of the membership of the House concerned.
For the purposes of the objective standard for the measurement of the validity of amendment of the Constitution, in terms of section 328(5) of the Constitution, the makers of the Constitution decided to fix the minimum threshold to be reached by the votes in favour of the proposed amendment by reference to the constant constitutive element of each House. They were free, in the exercise of the power of sovereignty, to do so. They were not under delegated authority, as the Legislature is.
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.
“The membership of each House” is an essential element of the requirement of the objective standard fixed by the fundamental law. It is therefore binding on all Members of the House, individually and collectively, in the exercise of the power to amend the Constitution.
The people decreed, by the supreme law, that the validity of the exercise of the power to amend its provisions be determined by application of an objective standard, which takes into account the representation and the protection of their interests.
When searching for the true construction of a constitutional provision, a court must constantly bear in mind that its authors were not executing a delegated authority, limited by other constitutional constraints. They were establishing a fundamental law. To that extent, the people, in the exercise of the power of sovereignty, were intent upon establishing such principles as seemed best calculated to produce good government and promote public happiness. They did so at the expense of any, and all, existing institutions which might stand in their way.
The objective standard for the determination of the validity of the proposed amendment of the Constitution is applied to the amount of votes in favour of the amendment at the third reading. It is that vote which decides the question whether the Constitutional Bill is passed by the House concerned. Compliance with all the procedural requirements prescribed by section 328 of the Constitution is obligatory.
In enacting the provisions of section 328(5) of the Constitution, the people deliberately chose the formulation of the objective standard for the determination of the validity of an amendment of the Constitution. The objective standard subjects the votes in favour of the proposed amendment to a minimum threshold fixed by reference to the whole number of persons fixed by the Constitution itself as the anchor for the standard. The people settled for the formula prescribed by section 328(5) of the Constitution because they were satisfied that its application would secure the object of protection and promotion of their interests. It is a means of affording indirect popular participation in the process of amending the fundamental law.
Section 344(3) of the Constitution relates to provisions which use the formula for determining the validity of decisions on any questions for decision by the House by requiring the votes in favour of what is proposed to reach a minimum threshold fixed by reference to the membership of the body. The sub-section prescribes what should happen when “the membership of a body” is not a multiple of the denominator to the vulgar fraction to express the minimum threshold.
The words “membership of a body”, as used in section 344(3) of the Constitution, relate to the whole number of members the body is declared by the Constitution to consist of.
It is clear, from section 344(3) of the Constitution, that reference to the “membership of a body” in any provision of the Constitution is reference to the total number of persons the Constitution has declared the body to consist of.
It is important to note, for the purpose of the determination of the question before the Court, that section 344(3) of the Constitution refers to “the membership of a body” when used in the Constitution in reference to the votes of a constitutional body.
Section 328(5) of the Constitution falls into the category of provisions in which the formula fixing the minimum threshold for votes in favour of the proposed action by reference to the membership of the body concerned is used.
The words “the membership of each House” are used in section 328(5) of the Constitution in a constitutive sense to refer to what constitutes each House, as prescribed by the fundamental law. The words refer to what constitutes the full strength of each House.
The correctness of the construction of section 328(5) of the Constitution, linking the minimum threshold the votes in favour of the proposed amendment of the Constitution have to reach to the whole number of Members making up each House, as fixed by the Constitution itself, is supported by the provisions of section 344(4) of the Constitution.
Section 344(4) of the Constitution provides that any reference in the Constitution to “the total membership” of Parliament is reference to the total number of persons who for the time being are Members of Parliament.
The definition of the total membership of Parliament is given immediately after the provisions of section 344(3), where reference is made to “the membership of a body”.
The effect of section 344(4) of the Constitution is that where reference is made in a provision of the Constitution to the “membership of a body”, and that body is one of the Houses of Parliament, reference is not being made to the total number of persons who for the time being are Members of Parliament.
Section 332 of the Constitution defines “Member of Parliament” to mean a Senator or a Member of the National Assembly.
The people decided that the objective standard for the determination of the validity of an amendment of the Constitution should not include an essential element which would depend on the effects of unpredictable occurrences of such events as death or removal from office of Members of either House. This self-restriction in the Constitution serves to guarantee stability and respect for the established constitutional order.
The amendment of the Constitution must not be an easy process.
Section 328 of the Constitution prescribes the procedure for amending the Constitution, reflecting different degrees of difficulty depending on the provision sought to be amended. The amendment of the Constitution is a matter on which the public places a lot of importance. A swift and easy method of amending the Constitution would weaken the sense of security which the rigid Constitution gives. There would be too little distinction from the method for amending ordinary legislation. That would erode the special status of the supremacy of Constitutional Law.
The Constitution would not occupy the special place it occupies today in the country's legal system.
Changing provisions of the Constitution, without following the special procedure provided for in section 328, would expose the Constitution to passing interests. The idea reigns that solidity and security are the most vital attributes of a fundamental law. See BRYCE “The American Commonwealth” Vol 1…,.
The effect and substantive value of the foundational principle of supremacy of the Constitution is that, once ordained by the people, the Constitution and its provisions bind the people themselves. The people must respect and obey the dictates of what has been done by Parliament within the ambit of the limited powers they would have conferred on it and in accordance with the procedure they would have prescribed for its conduct.
Democracy is a limited form of government. The principle of supremacy of the Constitution is to the effect that, once the people have given the representatives they would have put in Parliament, the power to make the final decision by the prescribed amount of votes in favour of the amendment of the Constitution in accordance with the prescribed procedure, they would have bound themselves to accept the amendment as being in the common interests of the entire people.
Therein lies and governs the principle of the rule of law.
It is to the effect that law is the master to be obeyed by the State, every person, and every institution and agency of Government at every level.
When a Member of a House of Parliament casts a vote in favour of the proposed amendment to the Constitution, he or she is discharging a democratic mandate. He or she is not casting the vote for personal interests. The principle of representative democracy guarantees every Member of Parliament not only freedom in the exercise of his or her mandate but also equal status as a representative of the entire people.
In principle, each House complies with its function as a body of representation in its entirety. The law does not differentiate votes in favour of the proposed amendment to the Constitution according to the political affiliation of the Members casting the votes. The voter acts as a Member of the House who is required to act in accordance with his or her conscience within the confines of the duties of the office of membership.
The fact that a political party with a majority of Members of Parliament manages to secure the requisite special majority of two-thirds of the membership of the House to amend the Constitution does not change the fact that, at law, the affirmative votes for the amendment of the Constitution represent the entire citizenry.
The reason is that, although cast by an individual, the vote is an exercise of the power belonging to Parliament as a constitutional body established for the purpose of exercising legislative authority for the common good of the entire people. The people established Parliament as a means by which they would exercise, through representatives, the legislative authority they vested it with for their common interests. The Constitution creates a representative democracy, under-girded by the doctrine of separation of powers.
The interpretation of section 328(5) of the Constitution must seek to give effect to the fundamental values on which a republican form of government is founded.
Section 328 of the Constitution does not only prescribe the procedures that those entrusted with the power to amend the fundamental law have to keep in mind and bear the obligation to act according to their requirements in the exercise of the power. The duty-bearers must also appreciate the rationale behind the limitation on the exercise of the power conferred on them in the context of the dynamism of the relationship with the people. They have to appreciate the legal consequences of failure to act in accordance with the procedures prescribed by section 328 of the Constitution.
