Administrative Law re: Gag, Non-Dissemination or Suppression Order and the Sub Judice Rule

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:"REQUEST FOR DIRECTIONSWe act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, ...

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:

"REQUEST FOR DIRECTIONS

We act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, was representing accused persons in the case of Tungamirai Madzokere and 28 Others, Case No. CRB55/12. He applied for bail on their behalf, and, in the judgment dismissing the bail application, the court also made adverse findings against Mr Kwaramba.

A copy of the judgment is attached.

Some time ago we received instructions from Mr Kwaramba to seek a review of the decision as he felt that there were irregularities in the manner the court arrived at the decision affecting him.

As we were preparing the application, we noticed that there is a challenge with regard to review proceedings before the Supreme Court. Section 25(3) of the Supreme Court Act seems to suggest that there is no right to approach the Supreme Court for review as a court of first instance.

However, sections 17(h) and 25(1) of the same Act both seem to confer review powers on the Supreme Court.

In light of the above, we became very averse to filing an application without first seeking the Court's directions on the matter.

We note, however, that, in terms of section 25(3) of the Act, the Supreme Court or a Judge of the Supreme Court can give directions whether a review in the nature of this one can be instituted before it in the first instance.

We attach a draft copy of the application which is intended to be filed.

We therefore request you to kindly place our request before a Judge for directions. We look forward to your urgent attention to the matter."

It would appear to me that two requests emerge from the above correspondence –

(1)...,.

(2) The legal practitioners for the applicant request that a Judge of this Court give directions in terms of section 17(h) or section 25(3) of the Supreme Court Act that a review of this matter be instituted.

Section 17(h) of the Supreme Court Act provides:

"17 Supplementary powers of Supreme Court

For the purposes of this Part, the Supreme Court may, if it thinks necessary or expedient in the interests of justice –
…,.

(h) Exercise any of the powers of review conferred upon the High Court by section 29 of the High Court Act [Chapter 7:06]:…,."

While section 25 of the Supreme Court Act provides:

"25 Review powers

(1) Subject to this section, the Supreme Court, and every judge of the Supreme Court, shall have the same power, jurisdiction and authority as are vested in the High Court, and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that, an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review, in the first instance, before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or particular review shall be instituted before or shall be referred or remitted to the High Court for determination."...,.

As regards the second request, applications for directions are made by way of Chamber Application.

It is inappropriate to do so by way of a letter addressed to the Registrar of this Court for placement before a Judge of this Court.

I will, however, overlook that inadvertence and deal with this request for directions as if it has been made by way of a Chamber application, hence this judgment....,.

The background facts to this request are as set out by the applicant in his proposed Court Application for Review. The proposed Court Application for Review is attached to the letter to the Registrar.

The following are the facts:

The applicant is a legal practitioner practising law in Harare in partnership with others under the name and style of Zimbabwe Lawyers for Human Rights. He was one of the legal practitioners representing accused persons who are accused of murdering a police officer in June 2011. He is one of a team of about four legal practitioners representing about twenty-nine accused persons.

The trial of the accused persons commenced on 4 June 2012 in the High Court.

The applicant, on behalf of the accused persons, made a bail application, which the State opposed. The court, presided over by MR JUSTICE BHUNU, reserved its judgment. The trial continued while awaiting judgment on the bail application.

The incident that gave rise to this application for directions then occurred.

It would appear, that, while awaiting judgment on the bail application, there was an article in the Daily News newspaper stating the following:

"Human rights lawyer, Charles Kwaramba, who is representing the 29 MDC activists, said the law is not being applied fairly. It just goes on to show that there is no equal application of the law. This is a classical example. Here we have police officers who are supposed to protect the people being accused of murdering a civilian for a dollar. On the other hand, we have 29 civilians who have been in prison for over a year now, being accused of killing a cop. So far there is no evidence that points at them, but the speed of arrests shows that the police wanted to arrest them because they are MDC. There were no investigations when the 29 were arrested. One wonders how the Shamva cops (got) $50 bail each in a murder case while the 29 activists are failing to get the same even when there is no evidence. Kwaramba said the moment that a person is labelled MDC justice is politicised."

The newspaper article, by use of quotation marks, purports to quote the applicant as the origin of the above remarks.

The applicant admits that he was asked to comment on the manner in which the wheels of justice were turning in the matter. He also admits that he expressed disappointment at the lengthy stay of his clients in remand prison. He contends that any other lawyer would have felt the same.

The applicant's stance, on the Daily News article, is contained in paragraphs 4.6 to 4.12 of the founding affidavit of his proposed Court application. He states the following:

"4.6 I then made the bail application which the State opposed. The court reserved its judgment. The trial went on while awaiting judgment on the bail (application). The incident which gave rise to these allegations then occurred.

4.7 It is true that there was an article in the Daily Newspaper stating what the Honourable Judge repeated at page 3 of his (cyclostyled) judgment.

4.8 It is also true that the article quoted lawyers including Dewa Mavhinga and myself.

4.9 It is true that I was asked to comment (on) the manner that the wheels of justice were turning in the matter. It is true that I expressed disappointment at the lengthy stay of my clients in remand prison. I do not think any lawyer could have felt otherwise.

4.10 It is true that I was invited to make a comparison of our case with the Shamva case. I declined the invitation indicating that I did not know much about that case but commented that if the cases were similar then like-accused must be treated alike as this is the position of the law. In fact, I got much of the details of the Shamva case from the interviewing journalist. I did not know about it. I did not even know much about the circumstances of the murder.

4.11 So, while the article contained some correct information, it also contained inaccuracies. Statements such as 'THE LAW IS NOT BEING APPLIED FAIRLY' (and) 'THERE IS NO EQUAL APPLICATION OF THE LAW'' were wrongly attributed to me. I deny using these words.

4.12 Although the article was, to some extent, true, it contained several inaccuracies, which inaccuracies probably created the wrong impression in (the) minds of readers including the Honourable Judge."

The learned Judge, disturbed by the above article, summoned all the legal practitioners in the matter to his Chambers on the Monday following publication of the article.

In his Chambers, he expressed his concern over the contents of the article and asked the legal practitioners to comment on the issue.

The applicant indicated to the learned Judge that the article was inaccurate and that there was no intention whatsoever on his part to attack the court or make adverse comments. He tendered his apology to the respondent if the wrong impression had been created. He advised the respondent that newspapers were notorious for writing stories with a twist that sold papers. In short, the applicant alleged that the newspaper had misquoted him or misrepresented him.

He assumed that the matter had been resolved.

However, on 19 June 2012, the court delivered its judgment in the bail application. In the course of that judgment, the learned Judge castigated the applicant for his communication with the newspapers. The learned Judge has this to say at pp 2-4 of the cyclostyled judgment:

"There has been, however, an unfortunate development in this trial in that one of the defence team of lawyers, Mr Kwaramba, instead of adducing the required evidence according to law, has now decided to play to the gallery and the press in a bid to secure the release of his clients without complying with the law by demonising and attacking the dignity and integrity of this Court and the Judiciary of this country in general.

He is quoted in an article in the Daily News on Sunday of June 10 (2012) at p4 as follows:

'Human rights lawyer, Charles Kwaramba, who is representing the 29 MDC activists, said the law is not being applied fairly. It just goes on to show that there is no equal application of the law. This is a classical example. Here, we have police officers who are supposed to protect the people being accused of murdering a civilian for a dollar. On the other hand, we have 29 civilians who have been in prison for over a year now, being accused of killing a cop. So far, there is no evidence that points at them, but, the speed of arrests shows that the police wanted to arrest them because they are MDC. There were no investigations when the 29 were arrested. One wonders how the Shamva cops (got) $50 bail each in a murder case while the 29 activists are failing to get the same even when there is no evidence. Kwaramba said the moment that a person is labelled MDC justice is politicised.'

With respect, Mr Kwaramba's remarks cannot reasonably be true.

They are being made at a time when the very same police he is attacking have arrested ZANU PF activists in Mudzi for allegedly murdering an MDC member in politically motivated violence. They have since been denied bail by this very Court: see David Chimukoko and Others v The State HH254-12.

It is a well documented truth, and our Court records and law reports are replete with MDC members charged with treason or murder, including its leader, who owe their lives to this very Court that Mr Kwaramba has the audacity to publicly demonise and denounce as an enemy of the MDC.

This is not to mention countless others charged with various offences, including fraud and insulting the President, who also owe their freedom to the very Judiciary that Mr Kwaramba seeks to demonise and portray as being partisan and biased against the MDC. See:

1. State v Sonny Nicholas Masera HH50-04;

2. S v Tsvangirai & Ors 2003 (2) ZLR 88;

3. S v Tsvangirai 2004 (2) ZLR 210;

4. The State v Roy Leslie Bennett HH79-10;

5. The Attorney-General v Roy Leslie Bennett SC07-11;

6. The State v Elton Mangoma HH136-11.

Just to mention but a few.

This Court's mission is to dispense world class justice to all manner of people without fear or favour.

Right now, as I speak, the MDC President is busy defending, in the Supreme Court, this Court's landmark judgment issued in his favour against his arch rival, the President of ZANU PF and Zimbabwe.

That puts to shame Mr Kwaramba's ill-conceived, malicious remarks in the press bent on bringing the due administration of justice into disrepute.

Mr Kwaramba deliberately misrepresented the facts and the law to mislead gullible members of the public, and the press, when he launched that caustic, inflammatory, but baseless attack on the Bench and the Judiciary in general.

The simple answer to his insincere, rhetoric question is that Parliament has decreed that where a person is alleged to have killed a law enforcement officer, and in this case a policeman, the Court is prohibited from granting the accused bail until such time he or she has adduced evidence, to the Court's satisfaction, establishing the existence of special circumstances justifying his (or her) release.

The same considerations do not apply to a person or police officer who is alleged to have killed any person other than in circumstances falling under section 117(6) of the Act."

The learned Judge further stated in his judgment, at pp 4-5:

"In his demonisation of the Judiciary, Mr Kwaramba was well aware that the Shamva case was different from this case.

This explains why, in all his lengthy addresses and submissions in open court, he never mentioned the Shamva case or sought to draw any similarities between the two or any other case because he knew that they were different and that different legal considerations applied.

In judgment number HH182-12, I took the trouble to draw his attention to section 117(6) and to explain its legal implications to his apparent satisfaction such that he abandoned his ill conceived bid to appeal against my order inviting him to comply with the legal requirements prescribed by law.

Having failed to take refuge in the Supreme Court, he now seeks solace in the media and gullible members of the public together with some obscure self-styled, shallow minded, if not bogus lawyers whom I have never encountered at the courts in my 31 years in the Judiciary.

For him to then turn around, attack, and denigrate this Court on the basis of a case reference and arguments he never advanced in open court so that they could be subjected to legal scrutiny smacks of dishonest, slanderous, contemptuous, and unethical conduct on his part."

The learned Judge, after an analysis of the facts, and applying the law to the facts, dismissed the bail application.

The applicant objects to the learned Judge's remarks on four grounds, set out in the proposed court application for review, namely -

"1. There are/were gross irregularities in the proceedings or decision.

1.1 The applicant was not given an opportunity to be heard.

1.2. The findings against the applicant were made in a case in which he was not a party.

1.3 The applicant's rights to the protection of the law and to legal representation were violated.

1.4 The respondent's findings were not borne out by the facts before him."

It is on the basis of these facts that I am now requested to give directions, in terms of section 25(3) of the Supreme Court Act that a review be instituted or the matter be referred or remitted to the High Court for determination.

Before a Judge of the Supreme Court issues directions in terms of section 25(3) of the Supreme Court Act, he or she has to be satisfied of the existence of an irregularity that needs determination or correction which has occurred.

Generally speaking, an irregularity occurs when a judicial officer takes into account factors that he should not take into account or fails to take into account factors he should take into account in the process of the making of a determination the judicial officer is seized with.

An irregularity also occurs where the law is misapplied or an incorrect procedure is followed.

The court a quo was seized with a bail application. The learned Judge had to determine whether or not bail should be granted.

There is no allegation, that, in making the determination to grant or refuse bail the learned Judge took into account wrong factors or failed to take into account factors which he should have taken into account.

No misdirection in the determination of the bail application is alleged. Put differently, no irregularity is alleged in the determination of the bail application.

The remarks complained of by the applicant were obiter and were not part of the ratio decidendi of the determination of the bail application....,.

Essentially, the applicant's complaint is that the learned Judge should not have severely reprimanded him for his conduct or misconduct.

The applicant does not seem to appreciate what is expected of him as a legal practitioner and an officer of the court.

On the applicant's own account, the Daily News ascribed to him the remarks it published in its newspaper. The remarks ascribed to him do not only scandalise the learned Judge but were also made while the matter was subjudice.

There is a time honoured practice which has crystallised into law that prohibits the making of inappropriate statements on matters pending before the courts.

I have no doubt in my mind that the statements ascribed to the applicant grossly transgressed the sub judice rule and clearly constitute contempt of court, in that they scandalize the court by ascribing to it political motivation in its judgment.

The inescapable inference is that the remarks were made not only to bring the court into contempt in the eyes of the public, but also in an attempt to influence the outcome of the bail application, and, consequently, the course of justice.

The applicant should consider himself lucky that he was not prosecuted for contempt of court.

Legal practitioners who show such blatant disrespect and contempt for the courts have no business appearing before the courts.

In my view, serious consideration should be given to the introduction of more stringent measures to protect the dignity of the courts from being impaired by reckless utterances.

Upon the publication of the article in the Daily News, I would have expected the applicant to immediately issue a statement dis-associating himself from the contents of the article and denying that he ever uttered the words ascribed to him by the Daily News newspaper.

That is what one would expect of a person falsely accused of saying things he never said.

I also would have expected the applicant to have urgently sought audience with the learned Judge to assure him that he never said the words ascribed to him.

Instead, he only offered a wishy washy explanation upon being asked about the matter by the learned Judge. He made no effort to correct the impression conveyed to the public, that the court is partial, and that the applicant was the source of the allegation.

The applicant is the author of his own misfortune. He should be more circumspect in the way he conducts himself.

I accordingly decline to give the directions requested.

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

At the end of proceedings in this matter, by unanimous decision, the Court issued an order as follows:

“1. It is declared that in respect of S.I.144 of 2022, which was published in the Gazette dated 19 August 2022, the respondent failed to fulfil its constitutional obligation under section 152 of the Constitution.

2. The respondent is ordered to comply with its constitutional obligation under section 152 of the Constitution by not later than close of business on the 16th of June 2023.

3. There shall be no order as to costs.

4. Reasons for this order are to follow in due course.”

The following are the reasons for the order handed down by the full bench of this Court.

The Background

The applicant is the President of a political party known as the Nationalists Alliance Party and is a member of the Political Actors Dialogue (“the POLAD”). He stood for election to the office of President during the 2018 harmonised elections.

The respondent is the Parliament of Zimbabwe, the constitutional organ reposed with primary law-making authority in Zimbabwe.

The petition before this Court is centred around the allegation, that, the respondent failed to fulfil its purported constitutional obligation of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravened any provision of the Constitution.

More specifically, this contention relates to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), Statutory Instrument 144 of 2022 (S.I.144/22), which was published in the Gazette dated 19 August 2022.

The impugned statutory instrument was published by the Zimbabwe Electoral Commission (hereinafter “ZEC”) on the aforesaid date.

It increased the nomination fee for aspiring presidential candidates in the imminent 2023 general elections and beyond, from US$1,000 to US$20,000. Similarly, the nomination fee for aspiring candidates for National Assembly and Senate elections was increased from US$50 to US$1,000.

It is these hefty and apparently prohibitive hikes, and, in particular, the perceived procedural irregularities that followed the promulgation of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022 that drew the ire of the applicant.

In his founding papers before this Court, the applicant averred, that, as an ordinary citizen with aspirations to run for election as President, he would not be able to afford the US$20,000 nomination fee. He added that none of the members of his political party would be able to afford US$1,000 to run for public office as Members of Parliament.

Against this background, the applicant sought an order declaring that Parliament failed to fulfil its constitutional obligation in terms of section 152(3)(c) of the Constitution.

It was contended, that, the respondent had an immutable obligation to examine every statutory instrument published in the Gazette and consider whether any provision of the statutory instrument contravened any provision of the Constitution.

The applicant alleged, that, the respondent had failed to discharge this obligation in respect of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144 of 2022.

He based his standing on the belief that every citizen of Zimbabwe has automatic standing to challenge any failure by an institution of the State to fulfil a constitutional obligation.

It was the applicant's view, that, the use of the words 'examine' and 'consider' in the cited constitutional provision required the respondent to take a serious view of the imperative to protect the supreme law of the land.

In this regard, it was contended that the respondent failed to fulfil its obligation in that it did not treat the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22 in accordance with the provisions of section 152(3)(c) of the Constitution, following which it should have produced a report on the constitutionality of the statutory instrument.

Alternatively, it was argued that the fact that the respondent did not find that the statutory instrument infringed the rights of citizens provided for and protected by section 67 of the Constitution was evidence of a failure to “examine” or “consider” the impugned Regulations within the contemplation of section 152(3) of the Constitution.

The appellant took aim at the respondent's perceived “lackadaisical” approach to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22, which conduct was alleged to have failed to meet the requirement to 'examine' and “consider” within the meaning of section 152(3)(c) of the Constitution.

The applicant averred, that, no reasonable Parliament acting in compliance with the mandatory obligation under section 152(3)(c) of the Constitution would have failed to consider that the Regulations in the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1),Statutory Instrument 144/22 were patently unconstitutional for infringing the electoral and civil rights of citizens under section 67 of the Constitution.

From the applicant's perspective, had the respondent performed its constitutional obligation, the Regulations ought to have been repealed or referred to this Court pursuant to paragraph 9 of the Fifth Schedule to the Constitution.

The requirement to pay the nomination fee, expressly in United States Dollars, was also stated to be an infringement of the rights contained in section 67 of the Constitution.

On the foregoing basis, the applicant sought the following order:

“1. That, it be and is hereby declared that in respect of Statutory Instrument 144 of 2022 which was published in the Gazette dated 19th August 2022, the Respondent (Parliament of Zimbabwe) failed to fulfil its constitutional obligation under section 152(3)(c) of the Constitution of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravenes any provision of the Constitution.

2. As a consequence arising from paragraph 1 of this order, that it be and is hereby declared that the Electoral (Nomination of Candidates) (Amendment) Regulations, 2022 (No.1): Statutory Instrument 144 of 2022 are null and void and of no force or effect.

3. There shall be no order as to costs.”

The respondent duly opposed the application.

Its opposing affidavit was deposed to by Jacob Mudenda, the Speaker of the National Assembly.

He refuted the allegation, that, the respondent had failed to fulfil a constitutional obligation. According to the respondent, the provisions of section 152(3)(c) of the Constitution were unambiguous — the obligation to examine every statutory instrument which had been published in the Gazette lay squarely on the Parliamentary Legal Committee (hereinafter “the PLC”).

Accordingly, the said provisions did not impose a constitutional obligation on Parliament itself, as was alleged by the applicant.

Contrary to the applicant's averments, the respondent submitted that the Parliamentary Legal Committee (PLC) did consider the Regulations on 26 September 2022, and, thereafter, resolved “not to issue a non-adverse certificate until they have had a meeting with the Zimbabwe Electoral Commission concerning the fees in Statutory Instrument 144 of 2022.”

Consequently, the Clerk of Parliament wrote a letter, on the same day, to the Zimbabwe Electoral Commission (ZEC) inviting it to appear before the Parliamentary Legal Committee (PLC).

By letter dated 28 September 2022, the Chief Elections Officer of the Zimbabwe Electoral Commission (ZEC) advised the Clerk of Parliament that ZEC was constrained in discussing the matter as it was sub judice. According to the respondent, this was the sole reason that the Parliamentary Legal Committee (PLC) had postponed its consideration of the Regulations until the High Court had passed its determination on their legality.

All in all, the respondent denied that the Parliamentary Legal Committee (PLC) had breached the Constitution in any way.

In any event, the respondent assiduously sought to distance itself from assuming responsibility for the Parliamentary Legal Committee's conduct. The respondent maintained, that, an alleged omission or breach by the PLC did not amount to failure by Parliament itself to fulfil a constitutional obligation.

Submissions by Counsel

Counsel for the applicant submitted, that, the applicant's locus standi was founded on section 2 of the Constitution.

It was described as the supremacy clause which provided a basis for the applicant to vindicate the supremacy of the Constitution as a citizen. He submitted, that, the obligation in terms of section 152(3)(c) of the Constitution was imposed on Parliament by virtue of being specifically imposed on the Parliamentary Legal Committee (PLC).

He referred to decisions of this Court from which it could be inferred that the actions of the Parliamentary Legal Committee (PLC) were attributable to the respondent itself.

He added that the Parliamentary Legal Committee (PLC), being a component of Parliament, was a functionary of the respondent and thus the cited obligation fell squarely upon the latter.

It was also contended, that, there were concessions on record by the respondent to the effect that it had not complied with its constitutional obligation.

Counsel for the applicant insisted that the said obligation could not be delayed by pending litigation on the same issue in the High Court.

This was so despite the import of Standing Order 98(1)(e) of the National Assembly Standing Orders (Public Business) Ninth Edition 2020.

The Standing Order provides that “no member shall, while speaking to a question –
(e)…, refer to any matter on which a judicial decision is pending.”

He submitted that the Standing Order applied only in respect of non–constitutional issues.

Counsel for the applicant also argued, that, the applicant was entitled to rely on the competence of the first respondent to carry out its constitutional obligations and that any perceived failure to pursue an Administrative Law action ought not to non–suit him before this Court.

Per contra, counsel for the respondent submitted, that, the respondent had clearly fulfilled the constitutional obligation in question, contrary to the applicant's position.

He referred to minutes of the Parliamentary Legal Committee (PLC) on record as evidence that the respondent had considered the constitutionality of the impugned statutory instrument. He argued that the process thereafter was only stalled by the Zimbabwe Electoral Commission's refusal to engage the PLC due to the pendency of litigation in the High Court.

He further reasoned, that, there was no timeline for submitting the report from the Parliamentary Legal Committee (PLC) to Parliament and that any order to that effect would be an undue intrusion into its domain.

In response, counsel for the applicant maintained, that, the Parliamentary Legal Committee (PLC) had a duty to examine and report on the constitutionality of the impugned statutory instrument. The two were deemed to be concurrent obligations that could not be separated as was argued on behalf of the respondent.

In this respect, he referred to Standing Order 36(6)(d) which specifically stipulates a twenty-six day period for the Parliamentary Legal Committee (PLC) to submit its report to Parliament.

After some initial reservation, counsel for the applicant accepted, that, a mandamus by the Court would be a competent remedy, consistent with the Court's authority under section 167(2)(d) of the Constitution to interfere with the respondent's processes....,.

Functions and Obligations of the Parliamentary Legal Committee (PLC) under Section 152(3) of the Constitution

Section 152(3) of the Constitution, in its relevant portions, provides as follows:

“The Parliamentary Legal Committee must examine –…,

(c) Every statutory instrument published in the Gazette;…,.
and must report to Parliament…, whether it considers any provision in the…, statutory instrument…, contravenes or, if enacted, would contravene any provision of this Constitution.”…,.

The obligation of the Parliamentary Legal Committee (PLC) under paragraph (c) of section 152(3) of the Constitution is self-evident. It is essentially two-fold:

(i) To examine every statutory instrument published in the Gazette; and

(ii) To report to Parliament on the constitutionality or otherwise of the statutory instrument.

The two functions are not only mandatory but are also conjunctive.

The examination of an instrument, without the submission of a report thereon, does not suffice to satisfy the obligation imposed upon the Parliamentary Legal Committee (PLC) by section 152(3)(c) of the Constitution. Moreover, by dint of section 324 of the Constitution “all constitutional obligations must be performed diligently and without delay.”

Counsel for the respondent accepts, that, the Parliamentary Legal Committee (PLC) is obligated to examine every statutory instrument, but, contends that it is only required to submit its report to Parliament, or other functionary identified in section 152(3) of the Constitution, where it decides to issue an adverse report on the instrument.

This would be the case both where the Parliamentary Legal Committee (PLC) considers the instrument to be in contravention of the Constitution, as per section 152(3) of the Constitution, or where it deems it to be ultra vires its enabling Act, as per section 152(4) of the Constitution. Thereafter, the adverse report is debated by the National Assembly and the Senate.

Counsel for the applicant contends otherwise.

He submits, that, the Parliamentary Legal Committee (PLC) must examine and report on every statutory instrument. Whether its report is adverse or not is quite immaterial in determining the constitutionality or vires of the instrument.

In this respect, the Parliamentary Legal Committee (PLC) cannot justify the need to consult the Zimbabwe Electoral Commission (ZEC) in delaying the submission of its report.

I fully agree with counsel for the applicant.

Firstly, I am unable to find anything in section 152 of the Constitution, or elsewhere in the Constitution, to justify the contention that the Parliamentary Legal Committee's obligation to present its report on the constitutionality or otherwise of statutory instruments is confined to those instances where it decides to issue an adverse report on the instrument under consideration.

Secondly, the Parliamentary Legal Committee's functions, under section 152(3) of the Constitution, are peculiar to its own mandated obligation thereunder and must be fulfilled independently of any other institution or public office.

In this connection, the Parliamentary Legal Committee (PLC) cannot invoke the need to consult or interact with the Zimbabwe Electoral Commission (ZEC) as a valid ground for withholding the submission of its report to Parliament.

To do so would be to violate the constitutional injunction to perform its obligation diligently and without delay.

Standing Orders 33 and 98

In assessing the functions of the Parliamentary Legal Committee (PLC), it is necessary to have regard to certain provisions of the National Assembly Standing Orders (Public Business), 9th edition, 2020.

The conduct of the proceedings of the Parliamentary Legal Committee (PLC) is governed by Order 33.

In terms of sub-order (6)(d), the Parliamentary Legal Committee (PLC) must present its report to the House, in the case of a statutory instrument published in the Gazette, within a period of twenty-six business days beginning on the first day of the month next following the month in which the instrument was published.

By virtue of sub order (7)(a), the Speaker, in consultation with the President of the Senate, may, upon application by the Chairperson of the Parliamentary Legal Committee (PLC), extend that period for a further period of twenty six business days. The Speaker may do so, if he or she considers it proper on account of the length or complexity of the instrument or the prevailing workload of the PLC or for any other sufficient reason.

Turning to Order 98, which prescribes the rules to be observed by Members, sub-order (1)(e) stipulates that:

“No member must, while speaking to a question –…,.
(e) Refer to any matter on which a judicial decision is pending;…,."

The other restrictions placed upon Members relate to, inter alia, the irreverent use of the name of the President, inappropriate references to other Members, the use of derogatory, disrespectful, offensive, or unbecoming words, using the right of speech for the purpose of obstructing proceedings of the House, and anticipating the discussion of any other subject which appears on the Order Paper.

Having regard to sub order (1)(e) in particular, the question that arises is whether or not the Parliamentary Legal Committee (PLC) was justified in withholding its report on the constitutionality or otherwise of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022.

The respondent's position in this respect is that the Parliamentary Legal Committee (PLC) was so justified so as to avoid canvassing issues that were sub judice before the High Court in Case No. HC6083/22.

Counsel for the respondent submits, that, Order 98(1)(e) precludes any comment on any matter pending before any court. In this case, the Parliamentary Legal Committee (PLC) had already taken the view that the impugned statutory instrument did not violate the Constitution and was simply awaiting consideration of the statutory vires of the instrument as envisaged by section 152(4) of the Constitution.

Counsel for the respondent further relies on Standing Order 33(3) which enables the Parliamentary Legal Committee (PLC) to receive such evidence as is required for the performance of its functions in terms of the Constitution. The PLC was therefore entitled to await the views of the Zimbabwe Electoral Commission (ZEC) before concluding and submitting its report on both the constitutionality as well as the vires of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I.144 of 2022.

Counsel for the applicant, on the other hand, submits that Order 98(1)(e) relates to the decorum of Members when speaking in Parliament. It does not impact upon the obligation of the Parliamentary Legal Committee (PLC) under section 152(3) of the Constitution to examine and report on every published statutory instrument.

The restriction imposed by sub-order (1)(e) is subordinate to the obligation of the Parliamentary Legal Committee (PLC) to fulfil its constitutional functions and is not relevant to the performance of those functions.

Counsel for the applicant also relies on the timeline requirement of twenty-six days stipulated by Order 33(6)(d), within which period the Parliamentary Legal Committee (PLC) is enjoined to submit its report to Parliament.

This timeframe must be complied with and does not permit any delay based on the need to consult or take evidence from other public bodies.

Having regard to the wording of Order 33(3), there can be no doubt that the Parliamentary Legal Committee (PLC) was duly authorised to receive evidence from the Zimbabwe Electoral Commission (ZEC) in the process of conducting its examination of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22.

The more critical question is whether or not it was entitled to wait indefinitely in so doing.

Given the peremptory language of Order 33(6), spelling out “the periods within which the [PLC] must report to the House” the answer to this question must be given in the negative.

The impugned statutory instrument was promulgated on 19 August 2022.

Allowing for the period of twenty-six business days prescribed by sub order (6)(d), coupled with the additional twenty six business days permitted by sub-order (7)(a), assuming that the Parliamentary Legal Committee (PLC) had applied for and been granted this extension, the deadline for the submission of the PLC's report to Parliament would have expired in the middle of November 2022.

As at the date when this matter was heard, i.e. in June 2023, the time that had elapsed was a period of seven months beyond the stipulated deadline. This is patently outside the timeframe contemplated by Order 33(6)(d).

The next question concerns the requirements of Order 98(1), and sub-order (1)(e) in particular.

It stipulates that: “No Member must, while speaking to a question…, refer to any matter on which a judicial decision is pending.”

The argument that the remainder of Order 98(1) is largely devoted to issues pertaining to the decorum and proper conduct of Members during the course of proceedings is fairly attractive. However, I do not think that the broader context of Order 98(1) can legitimately be allowed to detract from the specific stricture contained in sub order (1)(e).

It is sui generis in nature and its mandatory prohibition cannot be disregarded. Whether it is applicable and enforceable in casu is an entirely separate matter.

It cannot be disputed that Order 98(1)(e) is quite obviously an extant law in the broadest sense and that it must therefore be complied with unless and until it is set aside: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor SC10-02.

On the other hand, the injunction embodied in section 152(3) of the Constitution is unequivocally clear. The Parliamentary Legal Committee (PLC) “must examine” every published statutory instrument and thereafter “must report to Parliament” on the constitutionality or otherwise of the instrument so examined.

In my opinion, the Parliamentary Legal Committee (PLC) is duty bound to carry out both of those functions notwithstanding anything to the contrary contained in the Standing Orders of Parliament.

Section 152(3) of the Constitution undoubtedly constitutes a normative injunction of a higher order, while Order 98(1)(e) must be regarded as a subordinate or subservient norm, which must therefore defer and succumb to the superior authority of section 152(3) of the Constitution.

To the extent that Order 98(1)(e) is inconsistent with, or prejudices, the fulfilment of the obligation mandated by section 152(3) of the Constitution, it is the latter that must prevail.

And, I am amply fortified in this approach from my analysis of the purpose of the subjudice rule and the established qualifications to that rule.

The Sub Judice Rule

The term sub judice is defined in Black's Law Dictionary as meaning “before a court or judge for determination.”

Depending on the circumstance or setting of its usage, it may be viewed as a rule of court, a statutory rule, a parliamentary convention, or simply a practice that has developed in the interaction between the media and public officials. At its core, it is aimed at preventing the publication of statements that may prejudice court proceedings.

In the context of the present case, the focus of the sub judice rule is centred on the relationship between Parliament and the judiciary under the lens of the separation of powers doctrine.

To what extent can Parliament deal with a matter that is the subject of legal proceedings in a court of law?

The question emanates from the clearly defined constitutional parameters of the two institutions as explicated in the celebrated case of Smith v Mutasa & Anor 1989 (3) ZLR 183 (SC)…,.

The general principle is that when the judiciary is seized with a matter, even Parliament has to defer to the judicial process.

The primary purpose of the sub judice rule is to obviate a real risk of interference with the due administration of justice: see S v Hartmann & Anor 1983 (2) ZLR 186 (SC)…,.

It is aimed at preventing external factors from influencing the determination or outcome of legal proceedings, and, consequently, the course of justice: see Kwaramba v Bhunu N.O. 2012 (2) ZLR (S)…,.

The specific duty of Parliament to observe the sub judice rule was expressly recognised and re-affirmed in Zvoma N.O. v Moyo & Ors 2012 (1) ZLR (H)…,.

The rule is recognised as an essential component of the rule of law, and, from that perspective, as binding on the conduct of Parliament.

Having set out the underlying objective of the sub-judice rule, I turn to consider the extent to which it may be qualified or departed from in practice.

And, in the particular context of the present matter, to what extent can Parliament, through the Parliamentary Legal Committee (PLC), resile from the sub judice rule in fulfilling its obligations under section 152(3) of the Constitution?

In the United Kingdom, the sub judice rule has been formalised and entrenched in its Parliamentary practice, both in the House of Lords and in the House of Commons. As appears from Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (21st edition, 2007):

“The privilege of freedom of speech in Parliament places a corresponding duty on members to use the freedom responsibly. This is the basis of the sub judice rule. Under the rule, both Houses abstain from discussing the merits of disputes about to be tried and decided in the courts of law.”

The 2007 Companion and Guide also cites a resolution adopted by the House of Lords on 11 May 2000 which reads as follows:

“That, subject to the discretion of the Lord Speaker, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice….,.”…,.

This approach is also confirmed vis-a-vis the House of Commons by ERSKINE MAY: Parliamentary Practice, 21st edition, 1989:

“The House has resolved, that, no matter awaiting or under adjudication by a court of law should be brought before it by a motion or otherwise….,. This rule may be waived at the discretion of the Chair….,. The general rule also applies to motions for leave to bring in Bills but the House has expressly resolved that the sub judice rule is qualified by the right of the House to legislate on any matter.”…,.

The foregoing exposition demonstrates, that, the sub judice rule is firmly established in the Parliamentary practice and procedures of both England and Zimbabwe.

However, it also demonstrates that the rule is not absolute or immutable and has been qualified through proactive Parliamentary practice designed to facilitate and enhance the performance of Parliamentary duties and functions.

Furthermore, with particular reference to England, the rule is explicitly qualified by the right of Parliament to legislate on any matter or to discuss any delegated legislation.

The latter qualification is of singular significance in the context of the present application.

This arises from the provisions of sections 3 and 4 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08].

By virtue of section 3(b) of the Privileges, Immunities and Powers of Parliament Act:

“Parliament and members and officers of Parliament shall hold, exercise and enjoy –…,.

(b) All such other privileges, immunities and powers…, as were applicable in the case of the House of Commons of the Parliament of the United Kingdom, its members and officers, respectively, on the 18th April 1980.”

The provisions of section 3(b) are buttressed by section 4 of the Privileges, Immunities and Powers of Parliament Act which stipulates that:

“The privileges, immunities and powers of Parliament and members and officers of Parliament shall be part of the general and public law and it shall not be necessary to plead them but they shall be judicially noticed in all courts.”

The intention and effect of these provisions are unquestionably clear.

Our Parliament, as well as its members and officers, enjoy the same privileges, immunities, and powers as were applicable and enjoyed in the House of Commons as at 18 April 1980.

As I have earlier postulated, the Parliamentary Legal Committee (PLC) is an intrinsic and essential component of Parliament itself.

By the same token, the procedures and functions of the Parliamentary Legal Committee (PLC) are inextricably intertwined with the legislative processes of Parliament. Thus, when the PLC is engaged in performing its functions under section 152(3) of the Constitution, it is also involved in exercising the power and right of Parliament to legislate on any matter or to discuss any delegated legislation.

On that premise, having regard to the established practice of the House of Commons, the Parliamentary Legal Committee (PLC) should not be hamstrung by the strictures of the sub judice rule in the course of examining and reporting on legislation under section 152(3) of the Constitution.

In short, for this reason and the reasons stated earlier pertaining to the subordinate status of Standing Orders generally, the sub judice restriction imposed by Standing Order 98(1)(e) does not apply to the circumstances of the present matter.

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Administrative Law re: Gag, Non-Dissemination or Suppression Order and the Sub Judice Rule

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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Law Portal Zimbabwe

Administrative Law re: Gag, Non-Dissemination or Suppression Order and the Sub Judice Rule

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O. Ruled By: CHIDYAUSIKU CJ

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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Law Portal
Zimbabwe

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC