PATEL JCC:
This is an application in terms of s 167(2)(d) of the Constitution of
Zimbabwe for the Court to determine whether Parliament or the
President has failed to fulfil a constitutional obligation.
The
applicants aver that the respondents have failed to do so in respect
of the presentation and passage of the Local Government Amendment Act
No. 8 of 2016 in Parliament. It is further averred that presenting
and passing a Bill in contravention of the Constitution amounts to a
failure to fulfil a constitutional obligation.
The
applicants contend that Act No. 8 of 2016 was passed and assented to
contrary to the procedure sanctioned under the Constitution for the
enactment of Bills. Furthermore, they contend that Act No. 8 of 2016
does not provide for the establishment of independent tribunals as
enjoined by s 278(2) of the Constitution. The bodies created under
the Act are subject to the whims of the third respondent (the
Minister). This again constitutes a serious failure on the part of
Parliament and the President to fulfil a constitutional obligation.
The
applicants have approached this Court under s 85(1) of the
Constitution in their own interests as citizens of Zimbabwe and as
members of Parliament and of the Parliamentary Legal Committee (the
PLC). They aver on this basis that their locus standi is beyond
dispute.
As
regards the merits of the application, the applicants assert that the
Local Government Amendment Bill was passed in contravention of the
Constitution in three material respects.
Firstly,
it was not published in the Gazette fourteen days before it was
introduced in Parliament contrary to Standing Order 134. Secondly, it
was not presented to the PLC in accordance with s 152(3)(a) as read
with s 139(3) and (4) of the Constitution and Standing Orders 29-33.
And thirdly, the requirement of s 141 of the Constitution to provide
public access to and public hearings in the process of the passage of
the Bill was not complied with in respect of Harare Province.
It
is contended that Parliament colluded with the Minister to render the
requisite parliamentary process a farce so as to enable him to
dismiss the Mayor of Harare.
The
second applicant also avers that she received a petition from Harare
residents concerning the violent intimidation at the public hearings
and requesting that they be allowed to air their views on the Bill.
She duly presented this petition to the Speaker, but Parliament
proceeded with the passage of the Bill despite this protest.
As
regards the alleged violation of s 278(2) of the Constitution, the
applicants aver that the amendments effected by Act No. 8 of 2016 to
the relevant provisions of the Rural District Councils Act [Chapter
29:13] and the Urban Councils Act [Chapter 29:15] create tribunals
whose members are beholden to the Minister. Moreover, the procedures
for their operation are not conducive to their independence as
required by the Constitution.
The
order sought by the applicants seeks various declarators and
consequential relief. In particular, they seek a declarator that the
respondents failed in their constitutional obligations in the
enactment of Act No. 8 of 2016. Accordingly, the Act was not lawfully
enacted and is therefore invalid and of no force or effect.
Alternatively, they pray for a declarator that the amended sections
of the Rural District Councils Act and the Urban Councils Act
relative to the tribunals are inconsistent with s 278(2) of the
Constitution and are therefore invalid and of no force or effect. The
applicants also claim costs against all the respondents.
The
first respondent (the President) filed an opposing affidavit deposed
to by the Minister. In that affidavit, the President abides by the
second respondent's averments in its notice of opposition. The
second respondent (Parliament) is opposed to the relief sought by the
applicants. In its affidavit deposed to by the Speaker, it is averred
that on 28 June 2016, at the second reading stage, the National
Assembly resolved that the text of the impugned Bill be replaced with
a new text incorporating amendments which addressed various issues
raised by the PLC concerning the initial text of the Bill. The new
text is the basis on which the PLC gave its non-adverse report on the
Bill. The motion agreed by the National Assembly was taken in
accordance with Standing Order 134(1) which allows waiver of the
requirement to publish every Bill fourteen days before it is
introduced in Parliament.
The
Speaker avers that, following this resolution, the first applicant
raised objections to the motion and called for a division, but lost
dismally by 134 to 46 votes. Accordingly, having requested a division
and participated in the voting process, the applicants abandoned
their right to challenge the decision adopted by the National
Assembly to replace the Bill with a new text as requested by the
Minister.
Furthermore,
at the third reading stage, the applicants and others had walked out
of the House. By so abandoning their rights, they have no locus
standi before this Court because they participated in the enactment
of the Act but then wrongfully walked out of the House.
As
for the Bill itself, there was no new Bill that was introduced but
simply an amendment of the initial Bill with the approval of the
National Assembly. Additionally, the Bill was duly examined, revised
and approved by the PLC. Although the applicants were not part of the
final meeting of the PLC, all of its members were given due notice of
the meeting and three-fifths of the PLC constituted its quorum. What
was agreed by the PLC was in accordance with what was agreed at its
earlier meetings.
As
regards the requirement of public hearings, Parliament conducted two
public hearings in Harare and requested the police to maintain peace
and security together with the security personnel of the hearing
Committee itself. Consequently, the Harare public was given full
opportunity to air its view on the Bill.
The
third respondent (the Minister) is also opposed to the application.
He avers that both Parliament and the President fulfilled their
constitutional obligations in the enactment of the Act. Moreover, the
Act provides for the independent tribunals envisioned by the
Constitution. As regards the public hearing procedures, the requisite
processes were duly followed in the enactment of the Act. The
Minister did not intimidate or block the residents of Harare from
attending the public hearings that were duly convened. The Bill was
not enacted to remove the Mayor of Harare from office and he still
remains in office. The residents of Harare were given full
opportunity to air their views. The requisite processes were duly
adhered to and were therefore entirely legitimate.
The
Minister also avers that the members of the new tribunals created by
the Act are nominated by bodies that are independent of the Minister,
for example, the Public Service Commission and the Law Society of
Zimbabwe. The Minister simply appoints those persons who have been
nominated by those entities. The procedure relating to the operation
of the tribunals are indicative of their independent nature.
Failure
to Comply with Section 278(2) of the Constitution
Section
278 of the Constitution governs the tenure of seats of members of
local authorities. Subsection (2) of this provision dictates that an
Act of Parliament must provide for the establishment of an
independent tribunal to exercise the function of removing mayors,
chairpersons and councillors from office on the grounds of, inter
alia, inability or incapacity, gross incompetence, or gross
misconduct.
In their founding papers, as I have indicated above, the applicants
averred that Act No. 8 of 2016 does not provide for the establishment
of an independent tribunal as enjoined by s 278(2) of the
Constitution and that this constitutes a serious failure on the part
of Parliament and the President to fulfil a constitutional
obligation.
However,
at the hearing of this matter, Mr. Madhuku, for the applicants,
stated that the applicants were not persisting with the alternative
argument that the provisions introduced by Act No. 8 of 2016 are
inconsistent with s 278(2) of the Constitution. In the event, the
consequent declaration of invalidity in this particular respect, in
para. 3 of the draft order, was abandoned. Accordingly, it is not
necessary for the Court to consider this aspect of the matter.
Jurisdiction
of the Court
The
present application has been mounted in terms of s 167(2)(d) of the
Constitution. As is expressly stipulated in that provision, this
Court is endowed with exclusive jurisdiction to determine whether the
President or Parliament has failed to fulfil a constitutional
obligation.
Mr
Madhuku, for the applicants, submits that the merits of the matter
have no bearing on whether a constitutional question has been raised
to found the jurisdiction of this Court. All that the applicants need
to do is to demonstrate the existence of a constitutional obligation
and to allege that the obligation in question has not been fulfilled.
The merits of the application fall into an entirely different sphere.
In this regard, s 167(2)(d) does not differentiate between procedural
and substantive obligations.
Mr
Uriri, for the second respondent, accepts that the applicants have
raised a constitutional question. He contends, however, that it does
not fall within the exclusive jurisdiction of this Court. The
applicants have challenged the manner in which the impugned Act was
passed. Relying on pronouncements in King & Ors v Attorneys
Fidelity Fund Board of Control & Anor 2006 (1) SA 474 (SCA) at
15-17, to the effect that procedural requirements that are
prerequisites to validity do not impose constitutional obligations.
Mr Uriri submits that the manner of enacting legislation falls within
the doctrine of legality in relation to which the High Court enjoys
review jurisdiction. It is therefore that court that the applicants
should have approached in the first instance.
What
must be determined in order to found the jurisdiction of this Court
is whether the proceedings in casu raise a constitutional question
within the exclusive jurisdiction of the Court.
The
first aspect is not disputed.
The
applicants allege that three specific constitutional obligations were
breached in the passage of the impugned legislation: the Bill in
question was not gazetted; the Bill was not examined by the PLC; and
there was no public participation as required by the Constitution
before the Bill was passed by Parliament.
There
can be no doubt that these are constitutional questions pertaining to
the fulfilment or otherwise of constitutional requirements.
The
next critical aspect is whether these constitutional questions fall
within the exclusive jurisdiction of this Court. Do they revolve
around the fulfilment of purely procedural requisites that are
susceptible to the review jurisdiction of the High Court or possibly
the Supreme Court, and therefore outside the sole domain of this
Court? Or do they concern the failure to fulfil constitutional
obligations within the contemplation of s167(2)(d) so as to render
them amenable to the exclusive jurisdiction of this Court?
In
King's case (supra), which is strenuously relied upon by Mr Uriri,
the Supreme Court of Appeal drew a clear distinction between
procedural prerequisites and constitutional duties. The court
contrasted:
“legal
limitations that arise from procedural prerequisites and from other
limitations of legislative power with those that derive from the
imposition of duties.” [my emphasis]
In
Doctors for Life International v Speaker of the National Assembly &
Ors 2006 (6) SA 416 (CC), the Constitutional Court of South Africa
was seized with the complaint that, during the legislative process
leading to the enactment of certain health legislation, the National
Council of Provinces and the provincial legislatures did not comply
with their constitutional obligations to facilitate public
involvement in their legislative processes. The court proceeded, at
para 19, on the premise that the phrase “a constitutional
obligation” in s 167(4)(e) of the Constitution – the equivalent
of our s167(2)(d) – should be given a narrow meaning. In any event,
only the Constitutional Court could intrude into the domain of
Parliament. As was held per Ncgobo J:
“The
principle underlying the exclusive jurisdiction of this Court under
section 167(4) is that disputes that involve important questions that
relate to the sensitive areas of separation of powers must be decided
by this Court only. Therefore, the closer the issues to be decided
are to the sensitive area of separation of powers, the more likely it
is that the issues will fall within section 167(4). It follows that
where a dispute will require a court to decide a crucial political
question and thus intrude into the domain of Parliament, the dispute
will more likely be one for the exclusive jurisdiction of this
Court.” [at para 24]
“A
review by a court of whether Parliament has complied with its
obligation under section 72(1)(a) calls upon a court to intrude into
the domain of a principal legislative organ of the state. Under our
Constitution, this intrusion is reserved for this Court only.” [at
para 26]
“A
construction of section 167(4)(e) which gives this Court exclusive
jurisdiction to decide whether Parliament has complied with its
constitutional obligation to facilitate public involvement in its
legislative processes is therefore consistent with the principles
underlying the exclusive jurisdiction of this Court. An order
declaring that Parliament has failed to fulfil its constitutional
obligation to facilitate public involvement in its legislative
process and directing Parliament to comply with that obligation
constitutes judicial intrusion into the domain of the principle [sic]
legislative organ of the state. Such an order will inevitably have
important political consequences. Only this Court has this power.”
[at para 27]
“The
question whether Parliament has fulfilled its obligation under
section 72(1)(a) therefore requires this Court to decide a crucial
separation of powers question and is manifestly within the exclusive
jurisdiction of this Court under section 167(4)(e) of the
Constitution.” [at para 28]
I
now turn to the relevant provisions of the Constitution of Zimbabwe.
Section
139(1) deals with the regulation of the proceedings of the Senate and
the National Assembly by rules known as Standing Orders. In terms of
s 139(2):
“Standing
Orders may provide for—
(a)
the passing of Bills;
(b)
….;
(c)
….;
(d)
….;
(e)
….;
(f)
….; and
(g)
generally, the regulation and orderly conduct of business and
proceedings in and between the Houses.”
The
broad objectives of Standing Orders are lucidly spelt out in s 139(3)
as follows:
“The
procedures and processes of Parliament and its committees, as
provided for in Standing Orders, must promote transparency, must
encourage the involvement of members of all political parties in
Parliament and the public, and must be fair and just.”
Section
141 of the Constitution makes provision for public access to and
involvement in Parliament. It declares that:
“Parliament
must—
(a)
facilitate public involvement in its legislative and other processes
and in the processes of its committees;
(b)
ensure that interested parties are consulted about Bills being
considered by Parliament, unless such consultation is inappropriate
or impracticable; and
(c)
conduct its business in a transparent manner and hold its sittings,
and those of its committees, in public, though measures may be taken—
(i)
to preserve order in parliamentary proceedings;
(ii)
to regulate public access, including access of the media, to
Parliament and its committees;
(iii)
to exclude the public, including the media, from sittings of
committees; and
(iv)
to provide for the searching of persons and, where appropriate, the
refusal of entry to Parliament or the removal of any person from
Parliament;
but
those measures must be fair, reasonable and justifiable in a
democratic society based on openness, justice, human dignity,
equality and freedom.”
Section
152 of the Constitution governs the formation, composition and
functions of the PLC. In terms of s 152(3)(a):
“The
Parliamentary Legal Committee must examine …. every Bill, other
than a Constitutional Bill, before it receives its final vote in the
Senate or the National Assembly …. and must report to Parliament ….
whether it considers any provision in the Bill …. contravenes or,
if enacted, would contravene any provision of this Constitution.”
Having
regard to the decisions in King's case (supra) and the Doctors for
Life case (supra), I have no doubt that the obligation of Parliament
to secure public access to and involvement in its legislative and
other processes, as enjoined by s 141 of the Constitution, is not
merely a procedural prerequisite pertaining to form and manner.
Rather, it is a substantive constitutional obligation, within the
contemplation of s 167(2)(d), which is fundamental to the lawful
passage of every legislative enactment. It is a constitutional duty
that must be complied with by Parliament in a fair, reasonable and
justifiable manner.
By
the same token, the duty vested in the PLC by the peremptory
provisions of s 152(3) to examine every Bill, for the purpose of
considering whether it contravenes or would, if enacted, contravene
any provision of the Constitution, is not a mere procedural
prerequisite. In my view, it is a critical substantive obligation
imposed upon the PLC to ensure that Parliament is fully apprised of
any constitutional defect in proposed legislation to enable it to
rectify such defect in order to secure due conformity with the
Constitution.
Similarly,
while it might be argued that the requirements of Standing Orders
made under s 139 are primarily designed to regulate the procedural
aspects of parliamentary business, I do not think that they are
solely concerned with purely procedural matters. Insofar as they
regulate the gazetting of Bills and the attendant dissemination of
proposed legislation in pursuit of participatory democracy, they
implicate the involvement of all political parties represented in
Parliament as well as the general public, as is explicitly recognised
in s 139(3). They therefore necessarily impact upon the
constitutional obligations envisaged in s 141.
In
the premises, I am satisfied that the three constitutional questions
raised for determination in this matter call for the adjudication of
primarily political questions that intrude into the domain of
Parliament and thus impinge upon the separation of powers between
the judiciary and the legislature.
Accordingly,
I take the view that these questions relate to the fulfilment of
constitutional obligations that are subject to the exclusive
jurisdiction of this Court within the contemplation of s 167(2)(d) of
the Constitution.
Locus
Standi of the Applicants
The
second respondent contests the legal standing of the applicants in
instituting this application on the basis that they both participated
in the process of enacting the impugned Bill. They had called for a
division on the Bill in the National Assembly and had lost that vote.
Thus, so it is argued, the decision that they seek to overturn is
also their decision and they cannot challenge their own process. They
therefore have no standing to attack legislation that they themselves
were involved in passing.
In
the Doctors for Life case (supra), at para 218, Ncgobo J recognised
the need to find a proper balance between avoiding improper
intrusions into the domain of Parliament and ensuring that
constitutional provisions are sufficiently justiciable so as not to
be rendered nugatory. The latter consideration, in my view, behoves
this Court to adopt a liberal and generous approach to locus standi
in matters involving constitutional rights and obligations. This is
so notwithstanding the constitutional and statutory independence
enjoyed by Parliament in the control of its own affairs.
See
Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) at 208 &
209. See also Mudzuru & Anor v Minister of Justice, Legal and
Parliamentary Affairs N.O. & Ors CCZ 12/2015, at pp. 13-15, where
this Court, per Malaba DCJ (as he then was), eschewed the narrow
traditional conception of locus standi in favour of a broad and
generous approach to standing in constitutional matters.
In
casu, both applicants are not only citizens of Zimbabwe but also
members of Parliament. They have a general right, qua citizens, to be
involved in the proceedings of Parliament. They also have a specific
and special right, qua members of Parliament, to ensure that
parliamentary procedures are duly adhered to and that constitutional
obligations are not flouted, particularly where they relate to the
passage of proposed legislation. This is clearly recognised by s
119(1) of the Constitution which enjoins Parliament and, by necessary
implication, its constituent members to protect the Constitution and
to promote democratic governance in Zimbabwe.
In
my view, the applicants have an unquestionable right, both as
citizens and as legislators, to vindicate any perceived violation of
the Constitution. The fact that they only participated in the
challenged proceedings under protest means that they cannot be held
to have waived their right to approach this Court for appropriate
relief. In any event, any such alleged waiver cannot be lightly
presumed given the overarching supremacy of the Constitution and the
invalidity of any law, practice, custom or conduct inconsistent with
the Constitution.
In
short, there can be no doubt that the applicants are endowed with
ample locus standi to institute this application.
Whether
Bill Lawfully Gazetted
In
terms of Standing Order 134, every Bill must be published in the
Gazette at least fourteen days before it is introduced in Parliament.
The
applicants contend that a second Bill was introduced in Parliament
after the first Bill was gazetted and then subsequently abandoned.
The second Bill was totally different from the first Bill but was not
duly gazetted. It was not, as is averred by the respondents, simply
an amendment of the first Bill, which amendment could only have been
put forward at the Committee stage.
In
Biti & Anor v Minister of Justice, Legal and Parliamentary
Affairs & Anor SC 10/2002, at P. 13, Ebrahim JA underscored the
point that a Bill must be introduced and dealt with in terms of the
Constitution and that the procedures relating to the introduction or
reintroduction of Bills must follow the procedures stipulated in
Standing Orders. The learned judge further emphasised, at p. 18,
that:
“….
this Court has not only the power, but also the duty, to determine
whether or not legislation has been enacted as required by the
Constitution. Parliament can only do what is authorised by law and
specifically by the Constitution.”
It
is common cause, as the record shows, that there were two versions of
the Local Government Laws Amendment Bill, i.e. HB 1. 2016 and HB 1A.
2016. However, the record also shows that there were two notices of
amendments to the original draft of the Bill, the first relating to
clause 2 of the Bill as put forward by the PLC, and the second
pertaining to clause 3 of the Bill as proposed by the third
respondent (the Minister). Thereafter, as is reflected in the minutes
of the PLC meeting held on 23 June 2016, the business of the day
before the PLC was to consider HB 1. 2016 and its notice of
amendments. According to the minutes:
“Counsel
to Parliament advised the Committee that a new text of the Bill was
to be brought before the House on Tuesday the 28th of June and that
the new text would be a consolidation of the Bill and the Notice of
Amendments.”
This
position was subsequently confirmed in the National Assembly on 28
June 2016 by the Minister who presented a motion to replace the
original text. As recorded in Hansard, the Minister moved that:
“the
present text of the Local Government Laws Amendment Bill (HB 1. 2016)
which is currently at Second Reading Stage be replaced with a new
text. The new text has incorporated the amendments which address the
issues raised by the Parliamentary Legal Committee on the initial
text of the Bill. The new text is the basis upon which the
Parliamentary Legal Committee issued a Non Adverse Report on the
Bill.”
What
emerges reasonably clearly from the foregoing is that what was
presented to the National Assembly on 28 June 2016 was a consolidated
and amended text of the original version of the Bill. Contrary to the
submissions of the applicants, there was no new second Bill involved
in this process. It follows that there was no need for Parliament to
gazette the amended text of the Bill fourteen days before it was
presented, as would have been required by Standing Order 134 had it
involved the introduction of an entirely new Bill.
The
first ground of challenge to the passage of the Bill must accordingly
fail.
Whether
Bill Duly Considered by Parliamentary Legal Committee
As
I have already stated, s 152(3)(a) of the Constitution requires the
PLC to examine every Bill before it receives its final vote in the
Senate or the National Assembly. The PLC must then report to
Parliament whether it considers that any provision in the Bill
contravenes or, if enacted, would contravene any provision of the
Constitution.
In
terms of Standing Order 32, any report of the PLC must be based on
the “collective knowledge” of all of its members.
It
is argued, for the applicants, that the non-adverse report on the
Bill was furnished by only three members of the PLC at its final
meeting to consider the Bill. All five members of the PLC were not
consulted to submit their opinions on the consolidated text presented
to the PLC. This was contrary not only to the express provisions of
Standing Order 32 but also to the requirements of s 139(3) of the
Constitution in terms of which the procedures and processes of
parliamentary committees, as provided for in Standing Orders, must
encourage the involvement of members of all political parties in
Parliament. In short, Parliament must hear the views of all members
of the PLC. As this did not happen in casu, the impugned Bill was
not properly examined by the PLC.
The
factual conspectus that appears from the documents filed of record is
as follows.
According
to the minutes of the PLC meeting held on 9 June 2016, all five
members of the PLC were in attendance to consider the original Bill
(HB 1. 2016). Several issues were raised in discussion, including the
procedure for the removal from office of mayors and councillors and
the appointment of the envisaged independent tribunals. The PLC then
resolved to invite the third respondent (the Minister) and the
Attorney-General for discussion before it issued its certificate of
approval.
The
next meeting was scheduled to be held on 13 June 2016. This meeting
was duly attended by all five members of the PLC as well as the
Minister, the Deputy Attorney-General and other officials. The
members of the PLC aired their views and concerns surrounding the
Bill. At the conclusion of the meeting, the PLC resolved that various
amendments be made to the Bill relating to the clauses discussed and
be circulated amongst the members of the PLC before the issuance of
its certificate. The date of the next meeting of the PLC was to be
announced.
Thereafter,
a further meeting was convened on 23 June 2016. Three members were
present, being the ZANU-PF contingent, while the applicants were
recorded as having tendered their apologies. The meeting considered
the Bill together with the notice of amendments that I have earlier
alluded to. The PLC then resolved that:
“the
Minister had responded adequately to their concerns as raised in the
previous meeting and that a non-adverse certificate would be issued
accordingly”.
As
appears in the Hansard of 28 June 2016, the first applicant protested
that the last PLC meeting “was nicodemously held” and should be
deemed a nullity. He explained that all five members of the PLC were
part of a WhatsApp group and that notice of the PLC meeting was
communicated by Counsel to Parliament through that medium. He further
explained that both he and the second applicant had previously
indicated that they would not be available during the period in
question. Thereafter, the second applicant also voiced her concerns
that the PLC had not made any “pre-emptive commitment to issue a
Non Adverse Report”.
There
can be no doubt that the protestations of the applicants in
Parliament are at variance with the minutes of the three PLC meetings
that I have referred to. It is evident that they were given notice of
the final meeting, albeit through their WhatsApp group. However, the
specific reason for their non-attendance at the meeting is not
entirely clear. More importantly, the minutes of the three PLC
meetings in question indicate that the views and concerns of all five
members of the PLC were duly ventilated and that the Bill was
consequently amended to take those views and concerns into account.
The
applicants have not challenged the authenticity or accuracy of those
minutes nor have they particularised the precise manner in which
their views were disregarded in the formulation of the final version
of the Bill that was presented to Parliament. These deficiencies are
compounded by the abandonment, at the hearing of this matter, of
their alternative argument that the provisions introduced by Act No.
8 of 2016 are inconsistent with s 278(2) of the Constitution. In
effect, they have conceded that their concerns regarding the amended
version of the Bill are no longer an issue for contestation before
this Court.
In
the event, I am satisfied that the PLC did take into account the
collective objections of all five of its members. It follows that the
non-adverse report on the Bill submitted to Parliament was prepared
on the basis of the collective knowledge of all the members of the
PLC in accordance with the requirements of Standing Order 32. This is
so notwithstanding that the final meeting of the PLC was attended by
only three of its members.
By
virtue of s 344(2) of the Constitution, those three members, being
more than half of the total membership of the PLC, clearly
constituted the requisite quorum for the purpose of conducting its
proceedings.
Whether
Public Hearings Properly Conducted
As
already stated above, the applicants aver that the constitutional
requirement of public access to and public hearings in the passage of
the impugned Bill was not complied with in respect of Harare
Province. They further aver that there was a petition from concerned
Harare residents alleging violent intimidation at the public hearings
and requesting that they be allowed to properly air their views on
the Bill.
It
is common cause that the petition was duly presented to the Speaker
and that Parliament proceeded with the passage of the Bill despite
this protest. It is also common cause that on 28 June 2016 the
Speaker declared that “the matter will be tabled before the
appropriate Committee and that investigations will be done”.
However, no such investigations appear to have been undertaken and,
even if they had been, the findings of the appropriate committee have
not been availed, either to the National Assembly or to this Court.
I
have already cited s 141 of the Constitution in terms of which
Parliament is enjoined, inter alia, to facilitate public involvement
in its legislative and other processes and in the processes of its
committees. The paramount importance of participatory democracy and
public participation in the law-making process was aptly emphasised
in the Doctors for Life case (supra). In the words of Ncgobo J:
“Therefore
our democracy includes as one of its basic and fundamental
principles, the principle of participatory democracy. The democratic
government that is contemplated is partly representative and partly
participatory, is accountable, responsive and transparent and makes
provision for public participation in the lawmaking processes.
Parliament must therefore function in accordance with the principles
of our participatory democracy.” [at para 116]
“It
is implicit, if not explicit, from the duty to facilitate public
participation in the law-making process that the Constitution values
public participation in the lawmaking process. The duty to
facilitate public participation in the law-making process would be
meaningless unless it sought to ensure that the public participates
in that process. The very purpose in facilitating public
participation in legislative and other processes is to ensure that
the public participates in the law-making process consistent with our
democracy.” [at para 135]
“In
my judgment, public participation in the law-making processes of the
NCOP is the goal of the duty to facilitate public involvement
comprehended in section 72(1)(a). Participation is the end to be
achieved. To hold otherwise would be contrary to the participative
nature of our democracy and the Constitution's commitment to the
principles of accountability, responsiveness and openness.
Parliament and all nine provinces therefore, in my view, properly
conceded that the duty to facilitate public involvement contemplates
public participation in the lawmaking process.” [at para 141]
“In
the end, however, the duty to facilitate public involvement will
often require Parliament and the provincial legislatures to provide
citizens with a meaningful opportunity to be heard in the making of
the laws that will govern them. Our Constitution demands no less.”
[at para 145]
In
her founding affidavit, the second applicant refers to several
instances of violent disruption of the public hearings conducted in
Harare Province.
These
allegations have been cursorily traversed but not adequately refuted
by the respondents. Counsel for the second respondent quite correctly
concedes that there is a dispute of fact as to what transpired and
that the question to be determined cannot be answered on the facts
availed.
In
any event, as I have indicated, there is no report from Parliament or
any of its committees on the findings, if any, of the investigations
that were declared would be undertaken in due course. This was, in my
view, a critical omission.
In
that regard, I am inclined to agree with Mr Madhuku that, once the
Speaker had received and accepted the report from the second
applicant, Parliament should not have proceeded with the Bill but
should have awaited the findings of its own investigations.
What
emerges from the foregoing is that there are material disputes of
fact pertaining to the conduct of the public hearings carried out in
Harare Province. These disputes are irresoluble on the papers before
the Court and need to be determined by way of viva voce and other
relevant evidence before a court of competent jurisdiction. It seems
to me that the most appropriate forum for this purpose would be the
High Court, acting in terms of its own Rules.
Disposition
In
terms of r 5(1)(b) of the Constitutional Court Rules 2016, this Court
may give such directions as to procedure, in respect of any matter
not expressly provided for in the Rules, as appear to it to be just
and expedient. Furthermore, and more particularly, r 6 empowers this
Court to refer to the Judge President of the High Court any
allegations that require further investigation, in which event the
Judge President shall arrange for a judge of that court to conduct a
hearing within a specified period and thereafter to report back to
this Court.
In
the instant case, it is just and expedient that the material disputes
of fact concerning the conduct of the public hearings in question be
referred to the High Court for that court to investigate the matter
and thereafter to submit its findings to this Court.
It
is accordingly ordered as follows:
1.
The following question be and is hereby referred to the Judge
President of the High Court for investigation and determination:
Whether
the public hearings undertaken by the parliamentary Local Government
and Rural Development Portfolio Committee in Harare Province during
June 2016, in respect of the Local Government Laws Amendment Bill
2016, were conducted in such manner and in such circumstances as to
enable members of the public attending those hearings to reasonably
and adequately express their views on the provisions of the aforesaid
Bill.
2.
In investigating and determining the aforesaid question, the High
Court shall adopt and apply such rules of procedure and evidence as
the court may deem best suited for that purpose in terms of the High
Court Rules 1971.
3.
After concluding its investigation, the High Court shall prepare a
report incorporating its findings and determination for submission to
this Court.
4.
The costs of the aforesaid proceedings before the High Court shall be
costs in the cause in the present matter.
GWAUNZA JCC: I
agree.
GARWE JCC: I agree.
GOWORA JCC: I
agree.
HLATSHWAYO JCC: I
agree.
GUVAVA JCC: I
agree.
MAVANGIRA JCC: I
agree.
UCHENA JCC: I
agree.
BHUNU JCC: I agree.
Mupanga Bhatasara
Attorneys, applicants' legal practitioners
Civil Division of
the A-G's Office, 1st & 3rd respondents' legal practitioners
Chihambakwe, Mutizwa
& Partners, 2nd respondent's legal practitioners
