CHIWESHE JP: In this urgent chamber application the
applicants seek a provisional order in the following terms:
“FINAL ORDER SOUGHT
That the respondents show cause why a final order should be granted in the
following terms:
1. It is declared that Proclamation No 1 of 2013
issued by the 1st respondent and gazetted on the 15th of
February 2013 as Statutory Instrument 19/2013 be and is hereby declared to be unlawful and
ultra-vires section 3 of the Referendum Act (Chapter 2:10).
2. It is ordered that Proclamation No.1 of 2013
issued by the 1st respondent and gazetted on the 15th of
February 2013 as Statutory Instrument 19/2013 be and is
hereby set aside.
3. 2nd respondent and all those acting
through him/her be and are hereby interdicted
from acting on SI 19/2013 and/or
conducting a referendum on 16 March 2013.
4. Respondents shall pay the costs of this
application.
INTERIM ORDER GRANTED
Pending confirmation or discharge of the Provisional
Order, the following interim relief is granted.
1. Proclamation No.1 of 2013 issued by the 1st
respondent and gazetted on the 15th of
February 2013 as Statutory
Instrument 19/2013 be and is hereby provisionally set
aside.
2. The Registrar of the High Court be and is hereby
directed to set the matter down for final determination on an
urgent basis, and in any event before the 16th of March
2013.”
The background facts to this application are briefly as follows. The
first applicant, a common law universitas, was formed in 1997.
Its stated mission is to push for a new, democratic and people driven
constitution in Zimbabwe. The second applicant is the first applicant's
National Chairperson. He deposed to the founding affidavit. He did so on
behalf of the first applicant and also on his own behalf in his capacity as an
ordinary voter.
On 12 April 2009, Parliament set up a committee generally referred to as
COPAC. Its mandate was to collect the people's views on a new
constitution and, on that basis, come up with a people driven draft
constitution. After three and a half years of engagement in this process,
a draft was finally agreed on 17 January 2013. The draft constitution was
subsequently adopted by Parliament. It now awaits approval by the
electorate in a referendum.
The first respondent proceeded to publish in the Government Gazette dated 15
February 2013 a proclamation in terms of which a referendum was to be held on
16 March 2013. In doing so, the first respondent acted in terms of s3 of
the Referendums Act [Cap
20:10] which reads:
“Referendum Proclamation
Whenever the President considers it desirable to ascertain the view of voters
on any question or issue, he may by proclamation in the gazette -
(a) declare that a referendum is to be held in order
to ascertain the view of voters on that question or issue; and
(b) appoint a day or days for the holding of the
referendum; and
(c) state the hours at which voting for the purposes
of the referendum will commence and will close;
(d) ……………………………”
It is the applicants' view that
the time set by the first respondent is “grossly inadequate in light of the importance and complexity of the
opinion being sought from voters”.
In particular, it is averred that at
the time of setting of the date no official copy of the draft constitution or
translated or simplified versions of the same had been published. It is
further averred that by setting the date of 16 March 2013 the first respondent
acted arbitrarily, irrationally, grossly unreasonably and ultra vires
the enabling Act. By acting in this way, it is argued that the first
respondent has denied citizens adequate time to study and debate the draft so
as to participate in the referendum from an informed position. For these
reasons it is further argued that the resultant Proclamation is subject to
review by the courts. The present application seeks therefore that this
court sets aside the date of 16 March 2013 and order the first respondent to
give voters no less than two months to read and analyse the draft
constitution. The applicant intends to campaign for a “No” vote. To
that end it will need to distribute its objections to all potential voters,
organise meetings, debates and other forms of interaction with the electorate
and stakeholders. It avers that it cannot mount an effective campaign in
the time given.
The first respondent has opposed the application solely on the basis of a
preliminary issue, namely that the conduct of the applicant in publishing the
Proclamation is not subject to review by the judiciary. It relies in this
regard on the provisions of s 31 K (1) of the Constitution “which ousts the
jurisdiction of the courts in relation to all executive acts of the President
where he has acted on his own deliberative judgment.” It is argued that
in deciding to call for a referendum on the draft constitution and fixing the
day and time for the holding of such a referendum, the first respondent acted
“on his own deliberate judgment” in terms of the Referendums Act. His
conduct in this regard is the sort of conduct covered by the provisions of s 31
K (1) of the Constitution.
Section 31K(1) of the Constitution provides:
“31K Extent to which exercise of President's
functions justiciable
(1) Where the President is required or permitted by
this Constitution or any other law to act on his own deliberate judgment, a
court shall not, in any case, inquire into any of the following questions or
matters -
(a) whether any advice or
recommendation was tendered to the President or acted on by him; or
(b) whether any
consultation took place in connection with the performance of the act; or
(c) the nature of any
advice or recommendation tendered to the President; or
(d) the manner
in which the President has exercised his discretion.”
These provisions are clear and unambiguous. I am convinced that the
powers given to the first respondent by s 3 of the Referendums Act, being wide,
discretionary and unfettered, fall into the category of those powers envisaged
under s 31 K (1), wherein the first respondent is required or permitted to act
on his own deliberate judgment. That being the case, I conclude that the
conduct of the first respondent, in setting the date of the referendum and the
time within which voters may cast their vote, is not subject to review by a
court. Indeed this is the position that was taken by the Supreme Court in
the case of Zimbabwe Lawyers for Human Rights and Anor v President of the
Republic of Zimbabwe 2000 (1) ZLR 274 (SC).
In that case GUBBAY CJ (as he then was) had occasion to make reference to the
import of s 31 K of the Constitution with regards Presidential immunity.
At p 278 D – E he stated thus :
“The section specifies a number of
situations in which a court is not permitted to inquire into the actions of the
President. In all other matters, no fetter is placed upon the court and
no immunity is accorded the office of the President.” While the first
respondent relied on the above case to support its interpretation of s 31 K (1)
of the Constitution, the applicants preferred the position taken by DUMBUTSHENA
CJ (as he then was) in the case of Patriotic Front – Zimbabwe African
Peoples Union v Ministry of Justice, Legal and Parliamentary Affairs
1985 (1) ZLR 305 SC. In that case the learned Chief
Justice dealt with similar challenges, mainly, whether the exercise of
executive powers by the first respondent is subject to review by the
courts. He concluded that there are some functions performed by the
President in terms of the Constitution which are not reviewable. However,
should such prerogatives “be exercised under unlawful conditions or performed
outside the law, the courts…………..have a duty to find out whether the facts upon
which the prerogative power was exercised were lawful”.
I do not think that much reliance can be placed upon the conclusion in that
case. It appears to me that DUMBUTSHENA CJ was addressing situations in
which a prerogative or executive power had been exercised unlawfully or outside
the law. That is not the position in the present case because the first
respondent is clearly empowered by the Referendums Act to decide the date upon
which he may wish to hold a referendum. Unlawfulness is therefore not a
factor in the instant case.
Secondly the PF-ZAPU case supra was decided before the
enactment of the present s31 K of the Constitution. The court could not therefore have had the opportunity to interpret the present
constitutional provision. Adv Machaya for the respondents
submits that s 31 K was brought in precisely because the Legislature wished to
ensure that certain executive powers were not justiciable, more so in light of
the decision in the PF – ZAPU case supra. That seems to
be the position, moreso in light of the fact that the applicants did not
challenge that submission.
Paragraph (d) of subsection 1 of s 31 K is particularly relevant in that what
the applicants wish this court to do is to review the manner in which the first
respondent has exercised its discretion in fixing the 16th March
2013 as the date of the referendum. The provisions of that paragraph
preclude the court from doing so. Mr Muchadehama, for the
applicants, no doubt realising that the wording of that paragraph cannot be
interpreted in any other way, sought to persuade this court that that paragraph
should not be interpreted in isolation, but that it should instead be read
together or in conjunction with the preceding paragraphs (a), (b) and
(c). I agree with Adv Machaya that it would be improper to do
so. Firstly the use of the word “or” instead of “and” suggests that each
of these paragraphs is a stand-alone entity. Secondly the subject matter
specifically covered by each of the other paragraphs has nothing in common with
the subject matter covered under paragraph “d”. But in any event even if the
four paragraphs were to be read together the end product would still be the
same – namely that the Legislature has expressly and in clear and unambiguous
language ousted the jurisdiction of any court with regards the matters spelt
out under s 31 K (1) of the Constitution.
The applicants have argued that the executive decision complained of is
reviewable where it can be shown that “the private rights, interests and
legitimate expectations of citizens” have been affected. In my view the
provisions of s 31 K do not, on account of their clear and unequivocal import,
permit of such considerations.
For these reasons the preliminary issue must be decided in
favour of the first respondent. The second respondent has not opposed
this application. It will abide by the decision of the court.
Accordingly, it is ordered as follows:
1. It is declared that by
virtue of the provisions of s 31 K (1) of the Constitution of Zimbabwe the
powers conferred upon the first respondent in terms of s 3 of the Referendums
Act [Cap 2:10] are not justiciable.
2. Consequently it is ordered
that the application be and is hereby dismissed in its entirety.
3. The first and second
applicants shall jointly and severally, the one paying the other to be absolved,
pay the costs of this application.
Mbidzo Muchadehama & Makoni, applicants' legal
practitioners
Civil Division of the Attorney General's Office,
respondents' legal practitioners
