In this application, the applicants seek an order declaring that the Parliament of Zimbabwe (“Parliament”) and the President of the Republic of Zimbabwe (“the President of Zimbabwe” or simply 'the President') have failed to fulfil certain constitutional obligations delineated in section 328 of the Zimbabwe Constitution in passing Constitution of Zimbabwe Amendment (No.2) Act 2021 (“the Constitution Amendment Act”).
More specifically, the applicants allege that the Bill that was eventually passed by Parliament, on 7 May 2021, contained a number of major and material amendments to the original Bill.
Maintaining that the Bill that is passed by Parliament must be the same Bill as that originally gazetted, they seek, as consequential relief, an order setting aside the entire Constitution Amendment Act; alternatively, an order striking down the particular sections of the Constitution Amendment Act which they consider to have been irregularly enacted.
Various objections were taken in limine by the respondents, both in their opposing papers and heads of argument. The applicants also raised a number of preliminary points arising from the opposing papers filed by the respondents.
The court, of its own motion, invited Ms Sanhanga to appear as amicus curiae, and, consequent to that invitation, she filed heads of argument dealing with the various contentions raised by the parties.
Having considered the facts of this matter in their totality and the submissions by the parties, as well as amicus curiae, I reach the conclusion, that, the Constitution Amendment Act was properly passed.
The application must therefore fail....,.
FACTUAL BACKGROUND
The first applicant, Edwin Mushoriwa (“Mushoriwa”) is a Member of Parliament for the Dzivarasekwa Constituency in Harare, having been so elected in the 2018 harmonised elections.
The second applicant, Firinne Trust operating as Veritas (“Firinne Trust”), is a trust constituted in accordance with the laws of this country. It is a human rights organisation involved in the advocacy of human rights and constitutionalism in Zimbabwe. It further states that part of its mandate is to publicise the work of Parliament and analyse Bills and legislation to ensure adherence to constitutional principles and respect for human rights.
The third applicant, Brian Crozier (“Crozier”), is a registered legal practitioner, who, for many years, worked as the Chief Legal Draughtsman in the Ministry of Justice, Legal and Parliamentary Affairs. With others, he was involved in the drafting of the 2013 Constitution. He states that he has devoted much of his life in defending the rule of law and human rights.
The first respondent, the Parliament of Zimbabwe (“Parliament”) is the organ of State that is charged with the responsibility of initiating, preparing, considering, and rejecting legislation. Its legislative authority is exercised through the enactment of Acts of Parliament. The Legislature of Zimbabwe consists of Parliament which passes Bills and the second respondent, the President of Zimbabwe, who assents to and signs Bills presented to him by Parliament to enable Bills to become Acts of Parliament.
The Constitution of Zimbabwe Amendment (No.2) Bill (“the Constitution Amendment Bill”) was gazetted as Bill HB23/2019 on 31 December 2019 through General Notice 216/2019. It was eventually passed by Parliament on 7 May 2021.
It is common cause, that, during its second reading, the Minister of Justice, Legal and Parliamentary Affairs, in response to points made during the debate, gave notice that he would be moving amendments to the Bill at the Committee Stage scheduled for the following day. The suggested amendments were published in the order paper for the following day. In addition to the amendments proposed by the Minister, other amendments were proposed from the floor.
These amendments were accepted and adopted during the Committee Stage.
It is these amendments and their constitutionality that the applicants take issue with.
APPLICANTS CASE BEFORE THIS COURT
In his founding affidavit, Edwin Mushoriwa states that the Bill that was eventually passed by Parliament, on 7 May 2021, contained major and material amendments that were incorporated into the original Bill.
He states, that, it is unlawful for Parliament to pass a Constitutional Bill which is not, in express terms, the same as that which was originally gazetted in terms of section 328(3) of the Constitution. In other words, so he averred, the Bill that is passed by Parliament must be the same Bill as that originally gazetted.
Because the Bill that was eventually passed contained major amendments, it became materially different from the original Bill and was, consequently, invalid.
He avers that where, as in this case, there are major and material amendments to a Constitutional Bill that has been gazetted in terms of section 328(3) of the Constitution of Zimbabwe, then, such amendments should be gazetted for a further period of ninety (90) days in terms of the same section and subjected to further debate by members of the public in public meetings and through written submissions as provided for in subsection (4) of section 328 of the Constitution.
In failing to ensure that section 328 of the Constitution was complied with, both Parliament and the President failed to fulfil the constitutional obligation to pass a Bill that complied with section 328 of the Constitution.
The Bill was passed by both the National Assembly and the Senate in May 2021 and was signed and gazetted into law by the President on 7 May 2021 as Constitution of Zimbabwe Amendment (No.2), Act No.2 of 2021.
The applicants itemise the amendments they say were material that were introduced at the Committee Stage of Parliament as being the following:
(a) The proviso that was added to section 124 of the Constitution relating to a proposal by Priscilla Mushonga, for political parties to ensure that ten of the sixty women members would be persons under the age of thirty five; that women with disabilities are represented on party lists, and young women with disabilities are represented on their party lists in terms of an Act of Parliament.
(b) The amendment to section 180 of the Constitution which now made provision that an appointment of a Judge could be made by the President whenever it becomes necessary to do so rather than whenever a vacancy arose.
(c) The amendment to section 186 of the Constitution increasing the retirement age of Judges from 70 to 75 years subject to an election by the Judge to continue and approval by the President. It further provided, that, notwithstanding the provisions of section 328(7) of the Constitution, the amendment would apply to the continuation in office of the Chief Justice, Deputy Chief Justice, Judges of the Constitutional Court and Supreme Court.
(d) The amendment to section 199 providing that 10% of persons to be employed in the public service would be persons with disabilities.
(e) The amendment to section 268 providing that members of a provincial council should include ten women elected by a system of proportional representation.
(f) The amendment to section 327 excluding from Parliamentary scrutiny loans and agreements referred to in section 300(3) and (4) of the Constitution.
PARLIAMENT'S NOTICE OF OPPOSITION
The notice of opposition was deposed to by the Speaker of Parliament, Jacob Mudenda.
In his opposing affidavit, he disputed that Parliament was required to re-gazette the amendments that were incorporated into the original Bill or that there was an obligation, on the part of Parliament, to invite members of the public, once again, to express their views in respect of the same.
He stated that there is no provision in the Constitution which requires amendments to be re-gazetted or subjected to further public meetings and consultation. It was his further contention, that, had the intention been that a gazetted Bill should be passed without amendments, the section in question would have stated accordingly.
In any event, so he argued, there would be no purpose in having parliamentary debates if Parliament is not allowed, at the end of the day, to make amendments where it deems fit. Such an interpretation of section 328 of the Constitution would lead to an absurdity.
He further averred, that, Parliament did, in fact, comply with the provisions of section 328(3) of the Constitution.
The Speaker duly gazetted the Bill as required by section 328(3) of the Constitution. Thereafter, pursuant to subsection (4), Parliament duly invited members of the public to express their views on the Bill, both in public meetings and through written submissions. He further stated, that, the amendments came about as a result of parliamentary debate and that the amendments did not, in any event, change the complexion of the Bill.
Endorsing the Bill with obvious shortcomings would have constituted a failure on the part of Parliament to perform its constitutional obligation.
He further stated, that, since there is no provision which prohibits Parliament from making amendments to a Constitutional Bill, the matter does not therefore fall within the ambit of section 167(2)(d) of the Constitution.
THE PRESIDENT'S NOTICE OF OPPOSITION
The opposing affidavit of the President was deposed to by the Attorney-General who has averred that he has been authorised by the President to depose to the affidavit.
The Attorney-General has taken a number of preliminary points:
(i) First, that the application is fatally defective, having been brought in terms of section 16(2)(d) of the Constitution, which is a non-existent provision.
(ii) Second, that not having alleged a contravention of their fundamental rights espoused in Chapter 4 of the Constitution, the applicants have no legal standing to challenge the validity of the Constitution Amendment Act.
(iii) Third, that the same matter is pending before this court in the application filed by the second applicant jointly with Eric Matinenga and Ors in CCZ14/21. The matter is therefore already pending before this court and the present application ought therefore to be dismissed with costs.
(iv) Fourth, that Brian Carston Brown has no authority to bring these proceedings on behalf of Firinne Trust.
The resolution attached to the founding affidavit gives general authority to the director of the Trust, one Dr Ingram Thorpe, to institute court proceedings, which she did in case number CCZ14/21. Brian Carston Brown was given alternative authority to depose to an affidavit only in situations where Dr Thorpe would have failed to do so.
(v) Fifth, that Firinne Trust, being a trust, has not established that it has been given legal capacity, in terms of its constitution, to institute proceedings in its own name as opposed to the names of its trustees. The assertion that it has power to sue and be sued remains a bald one.
On the merits, the Attorney-General states that he does not accept that there were material differences between the Bill that was gazetted and the Bill that was eventually passed.
Further that, in any event, there is nothing in the Constitution which prevents Parliament from effecting amendments to a Bill that is passed as a law.
He also submits that no attempt has been made to identify the specific constitutional obligation that is alleged to have been breached by Parliament or the President.
He has further stated, that, the Bill in question was subjected to all the necessary requirements in terms of section 328 of the Constitution of Zimbabwe.
There is no constitutional requirement for any amendments effected to a Bill to be gazetted for the second time.
The averments made by the applicants, in their founding affidavits, show that there was publication of the Bill and interested persons were given the opportunity to make contributions in respect of the contents of the Bill.
He argues, that, the applicants are therefore introducing an additional constitutional requirement where none exists.
He states, that, taken to its logical conclusion, the proposition by the applicants is that amendments that are proposed after gazetting must themselves constitute a separate Constitutional Bill and become subject to further gazetting and the ninety-day notice in the Gazette.
On the amendments introduced during the Committee Stage, he submits that there is nothing in the Constitution that precludes Parliament from incorporating into the Bill suggestions made by members of Parliament during the Committee Stage. The intention of having debates in Parliament is to ensure that the Bills are fine-tuned, adjusted, and amended to suit the needs of society.
APPLICANTS ANSWERING AFFIDAVITS
In their answering affidavits, the applicants state that the President has duties that are defined in Part 2 of Chapter 5 of the Constitution. Section 90(1) of the Constitution makes it clear that he must uphold, defend, obey, and respect the Constitution. To the contrary, they allege that he and Parliament are responsible for its mutilation.
The applicants also take issue with the affidavit deposed to by the Speaker on behalf of Parliament.
Accepting that the Speaker is the head of Parliament, they state, however, that he is not Parliament, which consists of two chambers. The two houses should have separately resolved to defend this matter and given him specific authority to defend this application.
They further argue, that, the effect of introducing material amendments at the Committee Stage of Parliament is to deny the imperator prescribed in subsections (2), (3) and (4) of section 328 of the Constitution.
A holistic and contextual construction of section 328 of the Constitution is imperative. It must be one that seeks to protect the Constitution and not destroy it.
The applicants accept that Parliament has the right to debate a Bill and to reject some of its provisions. But, they do not accept that Parliament, at the instance of the executive, or anyone else, can introduce material amendments that were not part of the original Bill when gazetted.
Where there is a counter-proposal in the ensuing debate in Parliament, the executive must go back to the drawing board and re-gazette a fresh amendment arising out of those consultations.
In other words, the Bill presented and gazetted in terms of section 328(1), (2) and (3) of the Constitution cannot have amendments that by-pass the obligation for public participation as well as the obligation for the Speaker to give at least ninety days notice of such Bill in the Gazette specifying the precise terms of the Bill.
The applicants also take the point, that, it is not competent for the Attorney-General to depose to an affidavit on behalf of the President who is his client.
On the point taken by the President, that, the applicants cannot approach this court in terms of section 16 (2)(d) of the Constitution, the applicants say that this is an “ipse dixit…, raised by hired guns, acting on behalf of the 2nd respondent, who has no morality, no conscience, no decency other than their bottom line.”
They further state, that, the objection is “nothing but sophistry pedantism and typical of those who do not respect the Constitution and who do not respect the rule of law in this country.”
On the suggestion that the present application was the result of cutting and pasting of the Eric Matinenga and Ors CCZ14/21 application, the applicants deny that the respective causes of action are similar, regard being had to the fact, that, in Eric Matinenga and Ors CCZ14/21, the application is based on the doctrine of basic structures, which is not the position in the present matter. They submit that conflating the two applications would have been undesirable.
The applicants state further, that, the Firinne Trust has the legal capacity to sue and be sued.
They aver however that even if it does not have such capacity, the first and third applicants, who are natural persons, are before the court.
They state that there is no point “raising an objection that does not advance any cause other than irritation.”
Brian Carston Brown avers, that, the Deed of Trust of the second applicant authorises the Trust to bring and defend proceedings. He does not, however, attach a copy of the Trust Deed.
The applicants further stress, that, no material amendments can be passed at the Committee Stage of Parliament and neither can amendments which would not have been subjected to a process of participatory democracy in terms of section 328 of the Constitution.
They argue that if this were to be allowed, it would mean the Executive would ambush the public by introducing major material and far-reaching amendments on an unsuspecting public.
APPLICANTS HEADS OF ARGUMENT
In their heads of argument, the applicants submit that both Parliament and the President failed to fulfil their constitutional obligations in respect of the passage of the Constitution Amendment Act, and, more specifically, in enacting “ungazetted and unconsulted amendments.”
In summary, they submit that it is unconstitutional for Parliament to pass amendments that are not expressed in the terms originally gazetted in terms of section 328(3) of the Constitution, that have not been gazetted for ninety (90) days as required by section 328(3) and that have not been subjected to a process of public inquiry as mandated by section 328(4) of the Constitution.
They further submit that the Executive must justify its actions and show that it correctly fulfilled its constitutional obligations.
The applicants further argue that the Executive cannot, through the back door, allow such extensive amendments without them having been gazetted and debated.
They further submit, that, in interpreting section 328 of the Constitution, this court should not rely on the literal meaning of the words used but must read all the provisions of the Constitution holistically and in a generous and purposive manner.
If that approach is adopted, the conclusion would be reached that it was wrong and unconstitutional to introduce extensive amendments not previously gazetted or subjected to public scrutiny at the Committee Stage of Parliament.
They argue, that, nowhere in the Fifth Schedule to the Constitution is there provision for amendments to be made at the Committee Stage as stated in the Standing Orders. The procedure for amendments at the Committee Stage applies to normal Bills but not Constitutional Bills.
Section 328(4) of the Constitution implicitly excludes amendments that have neither been gazetted nor scrutinised by the public as there can never be amendments in respect of which members of the public are not invited to express their views on the proposed Bill.
On the remedy, the applicants submit that this is not a proper case for the court to employ a blue pencil test and excise the impugned provisions from the Constitution Amendment Act No.2. Instead, the Court should set aside the Act in its entirety.
At the hearing of the matter before this court, counsel for the applicants abandoned the preliminary point previously taken, that the Attorney-General cannot properly swear to an affidavit on behalf of the President.
Having abandoned that preliminary point, he nevertheless suggested that the judgment of this court should, obiter, express its views on the propriety of the Attorney General representing the President.
He further submitted, that, in the event that this court agrees with the applicants and holds that the amendment was unconstitutional, such decision should not have retrospective effect.
It was also his further submission, that, the Standing Orders of Parliament must be consistent with the Constitution which provides that all existing laws must be read in conformity with the Constitution.
Asked during the hearing in what way the President failed to fulfil his constitutional obligations, he told the court that the President has the obligation to scrutinise all Bills before assenting to them.
FIRST RESPONDENT'S SUBMISSIONS
In heads of argument filed on its behalf, Parliament took two preliminary points:
(i) The first was that the application ought to fail, the applicants having purported to approach this court in terms of section 16(2)(d) of the Constitution.
(ii) The second was that there has been a fatal non-joinder of both the Attorney-General and the Minister of Justice, Legal and Parliamentary Affairs, who is the Minister assigned the administration of the Act and who has a direct and substantial interest in the matter.
On the merits, Parliament has submitted as follows:
It followed the required procedure in amending the Constitution. The Bill was gazetted before it was tabled in Parliament. The requisite ninety days period of notice of the precise terms of the Bill was given.
Section 117(2) of the Constitution confers on Parliament the legislative authority to amend the Constitution in accordance with section 328. Subsection (2) of section 328 provides that an Act of Parliament that amends the Constitution must do so in express terms.
The interpretation placed on section 328 of the Constitution, by the applicants, cannot be correct.
The section requires the Speaker to give notice in the Gazette of the precise terms of the Bill before presenting it in Parliament. In other words, the terms in the Gazette, from the time of gazetting and presentation in Parliament, cannot be changed. Thereafter, Parliament must invite members of the public to express their views on the Bill. Such invitation must be done before the Bill is presented in the house, and, once it is presented, it cannot be re-gazetted or referred back to the public.
The Bill must also be passed, at its last reading, by an affirmative vote of at least two-thirds of the membership of each house.
It was Parliament's further submission, that, regard being had to section 131(4) and the Fifth Schedule of the Constitution, it has the power to amend a Bill that has been transmitted to either house of Parliament.
Paragraph 5(3) of the Fifth Schedule, in particular, provides that a Bill, which, having been transmitted to a house of Parliament, is passed by that house with amendments must be returned to the originating house with the amendments duly certified by the Clerk of Parliament and the house to which it is returned may reject, agree to or amend any of those amendments.
Subparagraph (3) also provides that where a Bill is returned to the originating house with amendments, and such amendments are rejected, or amended by the originating house, the other house may, by resolution, withdraw the amendments or agree to it being amended.
Bearing in mind the definition of “amend” in section 332 of the Constitution, it is clear that during debate, the houses may amend, vary, alter, modify, add to, delete or adapt the gazetted Bill.
It was Parliament's contention that the Constitution does not provide for any amendments effected to a gazetted Constitutional Bill to be re-gazetted or subjected to further public meetings and consultations. Had the intention been that the gazetted Bill should not be passed with amendments or that such amendments be further published and subjected to public scrutiny, then, Parliament would have said so.
Parliament further re-states, that, there would be little purpose in having debate in Parliament, from the first to the third reading, if Parliament were not to be allowed to make amendments where it deems fit.
In oral submissions, counsel for Parliament abandoned the preliminary point that the application was invalid, having been filed in terms of a non-existent section 16(2)(d) of the Constitution.
He, however, persisted with the preliminary point taken on the fatal non-joinder of the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General.
Counsel for Parliament made the following further submissions:
The Constitution provides, in paragraph 12 of Part 4 of the Sixth Schedule, that the Standing Orders that were in force before the effective date continue in force until replaced or amended in terms of the Constitution.
Therefore, it is not permissible for the applicants to challenge conduct that is allowed by a law without challenging the law that allows it.
The Standing Orders provide for amendments at the Committee Stage. Therefore, it is impermissible to impugn a process which is part and parcel of the Constitution.
He further submitted, that, the Speaker, being the presiding officer of the activities of Parliament, can quite properly attest to an opposing affidavit on behalf of Parliament.
He also argued, that, the constitutional obligation on Parliament is to solicit the views of the public in public meetings and to give the public ninety (90) days notice of the precise terms of the Bill.
That requirement was complied with in this case.
The argument whether an amendment is major or material does not arise from any of the provisions of the Constitution. Whether an amendment is major cannot be determined by this court and would require the court to delve into the actual processes of Parliament in order to make such a determination.
The argument by the applicants that a Constitutional Bill cannot be amended, as happened in this case, fails to appreciate that members of Parliament are the representatives of the masses. They make the final decisions on what to bring up during debate.
He further submitted, that, they have no legal obligation to take up the views expressed by the public during public meetings and in written submissions.
It was quite proper for proposals to be made during the debate in plenary and for amendments to be made to the Bill consequent thereto. Section 328 of the Constitution does not state what Parliament must do with the views expressed by the public. The process was intended to inform members of Parliament of the views expressed by members of the public they represent in Parliament.
SUBMISSIONS BY THE PRESIDENT OF ZIMBABWE
In heads of argument filed on his behalf, the President has submitted that section 328(3) of the Constitution does not impose any obligations on him as the President of Zimbabwe. It merely imposes obligations on the Speaker of Parliament to publish, on ninety days notice in the Gazette, the precise terms of a Constitutional Bill to be submitted to Parliament.
The Speaker's omission, if any, cannot be subjected to the jurisdiction of this court under section 167(2)(d) of the Constitution. Subsection (4) imposes an obligation on Parliament to invite members of the public to express their views in public meetings and through written submissions.
The President has also raised two preliminary points:
(i) First, that in purporting to approach this court under section 16(2)(d) of the Constitution, which section bears no relationship to the relief sought, the application is invalid and must be dismissed on that basis alone.
(ii) Secondly, that the relief sought in the application in Eric Matinenga and Ors CCZ14/21 is identical to that sought in this matter. The matter is accordingly lis pendens.
On the merits he has submitted as follows:
Section 328(3) of the Constitution imposes a disability as opposed to an obligation in that it limits the right of Parliament to receive a Constitutional Bill to only those bills that would have been published by the Speaker in the manner set out in that provision.
Therefore, a breach of section 328(3) of the Constitution does not constitute a failure to fulfil a constitutional obligation as such an obligation must be a positive duty imposed by that section.
He has further submitted, that, the public functionary upon whom the Constitution imposes a positive obligation is the Speaker of Parliament who must give at least ninety days notice in the Gazette of the precise terms of the Bill.
Neither Parliament nor the President had an obligation to gazette the Bill in terms of section 328(3) of the Constitution.
The Speaker, in compliance with section 328(3) of the Constitution, published the terms of the Bill in the Gazette and the Bill was presented to Parliament more than ninety days after such gazetting. The Bill that was presented to Parliament was the same Bill that had been published in the Gazette by the Speaker.
He submitted, that, whilst section 328(4) of the Constitution imposes an obligation on Parliament to ensure public participation, it imposes no obligation on him as President. For that reason, if the Court finds that Parliament breached that provision, such breach cannot be imputed to him as President.
He further submitted, that, immediately after gazetting the precise terms of the Bill, as was done in this matter, Parliament was required to do three things:
(i) Firstly, it was supposed to invite members of the public to express their views on the Bill.
(ii) Secondly, it was required to convene meetings and provide facilities to enable the public to air their views.
(iii) Thirdly, it was required to hold public hearings and receive written submissions.
He submitted, that, in respect of all three requirements, there was compliance by Parliament. The Bill was gazetted on 17 January 2020; the first invitation for the public to air its views was made on 22 January 2020, five days after the gazetting. Such invitation was therefore immediate; Parliament further convened public meetings during which members of the public aired their views on the Bill. There were also radio programmes and zoom meetings.
In oral submissions, counsel for the President abandoned two preliminary points previously raised. These are:
(i) Whether the application is invalid for citing section 16(2)(d) of the Constitution; and
(ii) Whether there is a pending matter involving the same parties and in which the same relief is sought.
He however submitted, that, the applicants have employed insulting and abusive language in their answering affidavit, and, for that reason, should bear the costs of the application.
On the competence of the Attorney General to represent the President, he submitted, that, since the applicants had abandoned this point, the court should not determine the matter as urged by the applicants as there is a lot of material that is not before the court; in particular, details on the sui generis position of the Attorney-General.
On the substance, he submitted that section 328 of the Constitution does not impose any obligation on the President, and, further, that there is no obligation on the President to supervise proceedings in Parliament.
In terms of section 131 of the Constitution, the President is required to assent to Bills or refuse to do so. In the context of this matter, that is his only obligation. He cannot be accused of breaching the Constitution where Parliament has committed a breach of its Rules.
SUBMISSIONS BY AMICUS CURIAE
Ms Sanhanga, as amicus curiae, submitted that it was common cause that the original Bill was duly gazetted for the minimum period of ninety days and that the public had an opportunity to comment on it before it was debated in Parliament. It was also common cause that the Bill which was originally gazetted was the same Bill which was presented to the National Assembly. It was also common cause that the Bill was amended at the Committee Stage by the National Assembly and that the Bill, as amended, was not again gazetted after the amendments and that no further consultation of members of the public took place. The Bill was then passed in both houses with the requisite two-thirds majority and was assented to by the President and gazetted on 7 May 2021.
Section 328(2) of the Constitution provides that an Act of Parliament that amends the Constitution must do so in express terms. The section refers to an Act and not a Bill. The amendments made by the Act are in express terms.
Therefore, section 328(2) of the Constitution was complied with.
She further submitted, that, whilst Parliament has the general power to amend the Constitution, pursuant to section 117(2)(a) as read with section 328 of the Constitution, there is no express provision in the Constitution for the amendment of Bills.
However, paragraph 5 of the Fifth Schedule to the Constitution provides for the amendment of Bills in general, which would also include a Constitutional Bill.
It was also her submission, that, contrary to the assertions made by the respondents, section 5 of the Fifth Schedule provides for amendments to be made to Bills in the house of Parliament to which the Bill has been transmitted and not the originating house. In other words, the section does not provide for amendments to be made by the originating house, unlike in this case where the amendments were made in the National Assembly.
Section 139 provides for Standing Orders which govern the passing of Bills, and, in section 154 of the Standing Orders, provision is made for the amendment of Bills in the National Assembly as the originating house. Based on those provisions, the originating house of Parliament is therefore entitled to amend Bills, including Constitutional Bills.
It was her further submission, that, section 328(4) of the Constitution merely provides for consultation through public meetings and written submissions. In other words, the public simply gives its opinion on the proposed amendment, and, although the legislative authorities are expected to listen to those views, they are not obliged to act on them.
It is Parliament, through the two houses, which would then take into account those views and craft a Bill which accords with the views of the public and constituencies as represented by each member of Parliament.
In her view, in such a situation, there is no requirement for gazetting the amendments as the stage for consultation would have been passed.
In any event, the applicants have not stated what the views of the public were.
Accordingly, there has been no violation of section 328(3)(4) of the Constitution and the suggestion that this court should infer requirements which are not expressly stated as being mandatory would impermissibly undermine the legislature which is itself a representative of the people.
This, she further submitted, would not only result in arbitrariness in the law but would have, as a consequence, the judiciary amending the Constitution.
ISSUES ARISING FOR DETERMINATION
From the foregoing, it is apparent that a number of preliminary issues arise and that they require to be determined in limine.
In the event that the preliminary issues are not dispositive of the dispute between the parties, the sole issue that would arise for determination is whether the amendments effected to the Bill should have followed the procedure provided in sub-sections (3) and (4) of section 328 of the Constitution....,.
The only issue that remains for determination is whether there was compliance, on the part of Parliament and the Speaker, with the provisions of section 328(2), (3) and (4) of the Constitution....,.
WAS THERE COMPLIANCE WITH SECTION 328 OF THE CONSTITUTION
This is the nub of the dispute between parties. The facts giving rise to the proceedings, which are largely common cause, are worth regurgitating:
On 31 December 2019, the Speaker of Parliament gazetted the Constitutional Amendment Bill HB23/19. It consisted of twenty seven clauses that dealt with an extensive list of constitutional issues. These dealt with various issues, chief among which were the removal of the running mate clause for Vice-Presidents; increasing the number of non-constituency Ministers who could be appointed; increasing the tenure of office of female proportional representative members of Parliament; the appointment of Judges as well as their tenure; the appointment of the Prosecutor-General; and the removal of Members of Parliament from the membership of Provincial Councils.
In accordance with subsection (4) of section 328 of the Constitution, Parliament duly invited members of the public to express their views on the Bill in public meetings and through written submissions.
In accordance with its processes, Parliament proceeded with the first and second reading of the Bill.
In concluding and winding up debate on the Bill, the Minister of Justice, Legal and Parliamentary Affairs responded to points made during the debate and gave notice that he would be moving amendments during the Committee Stage that was scheduled for the following day.
The amendments were duly published in the order paper for the following day, that is, 15 April 2021.
On 15 April 2021, the Minister proposed a number of amendments whilst others were proposed from the floor by the Minister himself and Priscilla Mushonga, a Member of Parliament.
It is these amendments, which were then accepted and adopted during the Committee Stage, that the applicants seek to impugn.
The process leading up to the debate in Parliament is not impugned and no issues arise before this court in that regard.
It is the applicants contention that Parliament cannot make 'major' or 'material' amendments to a Constitutional Bill, and that, if such amendments are made, the amendments would constitute a new Constitutional Bill and the processes provided in sub-sections (3) and (4) of section 328 of the Constitution must again be complied with.
Counsel for the applicants submitted, that, there is no stage known in our Constitution as the Committee Stage in Parliament and that the Standing Orders that allow amendments at the Committee Stage are not consistent with section 328 of the Constitution as there cannot be a procedure for a Committee Stage in respect of a Constitutional Bill.
In light of this submission, there is need, therefore, to take a closer look at the provision in question in order to determine whether, on a holistic, contextual, and purposive interpretation of section 328 of the Constitution, which he urges this court to adopt, it means what the applicants contend it does, namely, that where there are major or material amendments effected to a Constitutional Bill, then, the process provided for in subsections (3) and (4) of section 328 of the Constitution must once again be resorted to.
In short, should section 328 of the Constitution be interpreted to include such an obligation?
CONSTITUTIONAL INTERPRETATION
In urging this court to adopt a holistic, contextual, and purposive approach to the interpretation of section 328 of the Constitution, the applicants say nothing about the ordinary meaning of the words used in the section.
The position is now firmly established, that, a Constitution is not simply a statute which mechanically defines the structures of Government and the relations between the Government and its citizens.
Expressed differently, a Constitution is not an ordinary legal document, and, in interpreting it in any given case, it behoves a court to go beyond the literal meaning of the words used and to adopt a contextual, holistic, and purposive approach in order to give full effect to the provisions of the Constitution.
The interpretation accorded must be a generous rather than a legalistic one, aimed at securing the full benefit of the Constitution.
However, one must pay due regard to the language which has been used and to the traditions and usages which have given meaning to that language.
Where the words employed in the Constitution are clear and unambiguous, and allow of no absurdity or repugnance with the rest of the provisions in the Constitution, or with the context, then, such a literal interpretation should be adopted: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.
As a general rule, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of other statutes. One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and un-ambiguous and accord with the context, then, no more is necessary than to expound them in their natural and ordinary sense.
One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that could not have been contemplated by the legislature: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.
Put another way, the provisions of the Constitution ought to be given their ordinary grammatical meaning if such meaning is compatible with their complete context: see Anna Colleta Chihava (2) Boas Mapuya (3) Zishe Chizani v The Provincial Magistrate, Francis Mapfumo N.O. (2) The Prosecutor General 2015 (2) ZLR 31 (S)…,.; Mupungu v Minister of Justice, Legal and Parliamentary Affairs and Others CC07-21…,.
WHETHER PARLIAMENT CAN AMEND A BILL
The applicants appear to accept that Parliament does have the power to amend a Constitutional Bill, but, state that such an amendment should not be 'major' or 'material'.
A consideration of the Constitution shows, that, in terms of section 117 of the Constitution, Parliament does have the power to make law and to amend the Constitution in accordance with section 328 of the Constitution.
Section 131(4) of the Constitution, in turn, provides that the procedure to be followed by the National Assembly and the Senate with regards to Bills is as set out in the Fifth Schedule of the Constitution. The Fifth Schedule, in Part 2, provides for the amendment of Bills by a house to which a Bill has been transmitted by the other House.
It is apparent from the foregoing, that, there is no specific power given to Parliament to amend a Bill in terms of the Constitution.
Section 139 of the Constitution, however, provides for rules known as Standing Orders made by either House, individually or jointly, on the recommendation of the Committee on Standing Rules and Orders.
Paragraph 12 of Part 4 of the Sixth Schedule provides that the Standing Orders that were in force immediately before the effective date continue in force as Standing Orders of the Senate and National Assembly until they are replaced or amended in accordance with the Constitution.
That provision is very clear, that, any Standing Orders in force before the effective date continue to have effect until replaced or amended.
It was counsel for the applicants argument, that, the Standing Orders are now inconsistent with the Constitution.
He argued further, that, as Standing Orders relate to ordinary Bills and not to Constitutional Bills, there is a lacuna in the law as there is no provision in the Constitution for an amendment during the Committee Stage.
I am unable to agree with counsel for the applicants contention in this regard.
The Constitution states, in no uncertain terms, that, the procedure for “Bills” is as set out in the Fifth Schedule.
The Fifth Schedule does not distinguish the procedure to be followed by Parliament with regards to ordinary Bills, on the one hand, and Constitutional Bills, on the other.
What this means is that, for purposes of the Constitution, an ordinary Bill is as much a Bill as a Constitutional Bill.
It is also clear that Standing Orders 141 and 142 treat a Constitutional Bill as any other Bill, the only significant difference between the two being, that, in introducing a Constitutional Bill in Parliament, the procedure provided for in section 328 of the Constitution must be strictly and religiously followed.
As noted elsewhere in this judgment, the Constitution provides for the Standing Orders that were in force to remain effective notwithstanding the coming into effect of the 2013 Constitution.
The Constitution, therefore, deliberately avoided the possibility of a lacuna in the procedures of Parliament by providing, in un-ambiguous terms, that the Standing Orders that were in existence on the effective date would remain operative until they are replaced or amended.
Section 139(2) of the Constitution is pertinent - it states, that, Standing Orders may provide for the manner in which a Bill may be passed.
Standing Order 143 of the National Assembly Standing Orders (Public Business), (Ninth Edition, 2020) provides for referral of Bills to an appropriate Portfolio Committee. It further provides that the Committee shall have fourteen days, in the case of an ordinary Bill, and ninety days in the case of a Constitutional Bill for presentation of its report at the second reading stage.
The Portfolio Committee is then required to table its report containing its deliberations and recommendations on a Bill at the second reading stage. Once a Bill has been read a second time, it is then committed to the Committee of the Whole House, which, in terms of Standing Order 154, can make amendments to the Bill.
Standing Order 154 provides as follows:
“Amendments in Committee
154(1) The committee of the whole House, when considering a Bill, has the power to make any amendments to the Bill under consideration by amending a clause or inserting new clauses at the appropriate places in the Bill:
(2)…,. (not relevant).”
Standing Order 154 remains extant. By command of the Constitution itself, it remains effective.
It allows for the amendment of clauses in a Bill or the insertion of new clauses at appropriate places in a Bill. The only qualification in the Standing Order to such amendments or new clauses is that any amendments must be:
“(a) Relevant to the subject matter of the Bill; or
(b) Made pursuant to any instruction, and are otherwise in conformity with these Standing Orders.”
I am, therefore, unable to agree with counsel for the applicants, that, Standing Order 154 is no longer consistent with the current Constitution or that it is irrelevant in this case.
The Constitution itself says it remains effective until repealed or amended.
In any event, the position is settled in this jurisdiction, that, it is improper for the applicants to impugn, on a constitutional basis, things done in terms of the provisions of the Standing Orders without simultaneously impugning the validity of the Standing Orders themselves.
In this regard, attention may be drawn to the remarks of this court in Berry (Nee Ncube) and Anor v Chief Immigration Officer and Anor 2016 (1) ZLR 38 (CC)…, in which it was emphasised that:
“…, one cannot impugn, on a constitutional basis, conduct that constitutes a proper, lawful application of the law, without challenging the constitutional validity of the same law, or actions premised on a misinterpretation of it.”...,.
Section 328 of the Constitution makes provision for the procedures to be followed in the amendment of the Constitution.
Whilst the applicants seem to accept that amendments can be affected to a Constitutional Bill, they argue that once the amendments reach the threshold of being 'major' or 'material' then the amendments must be re-gazetted and subjected to further public consultation.
It is not in dispute that section 328 of the Constitution makes no provision for “major” amendments made to a Constitutional Bill to be subjected to the processes provided for in subsections (3) and (4) of section 328 of the Constitution.
The applicants urge this court to interpret that section to mean that such a requirement is implied.
A holistic, generous, purposive and contextual interpretation of the Constitution is what the applicants urge this court to adopt in order to come to the conclusion that the processes in sub-sections (3) and (4) of section 328 of the Constitution must be repeated whenever there are major amendments to a Constitutional Bill.
Although the terms holistic, generous, purposive, and contextual might appear, at first sight, to be very strange and frightening, they are not so alarming as they appear.
In a purposive approach, a court endeavours to ascertain the design or purpose behind the constitutional provision. The purpose of a statute plays an important role in establishing a context that clarifies the scope and intended effect of a law.
A holistic interpretation, on the other hand, takes into account all relevant provisions that have a bearing on the constitutional text.
A contextual approach takes into account the historical and political setting of the Constitution as well as the textual setting of the provisions in the Constitution.
A generous interpretation is one that is in favour of rights and against their restriction.
See The Bill of Rights Handbook by IAN CURRIE and JOHAN De WAAL, Sixth Edition…,.
A requirement that Parliament should repeat the process delineated in section 328(3) and (4) of the Constitution would be a very deliberate and significant one; one that Parliament would not consign to conjecture or inference.
Had Parliament intended to create an obligation on the part of Parliament, or the Speaker, to repeat the process in sub-sections (3) and (4) following amendments to a Constitutional Bill, it no doubt would have said so.
But, it did not.
Moreover, there is nothing either in the context of the Constitution, as a whole, that suggests that such a requirement was in the contemplation of the Legislature when section 328 of the Constitution was drafted, or that, without reading in such a requirement, the section would be rendered nugatory or that some absurdity would eventuate.
This court cannot read in such a requirement, as such an interpretation would not be consistent with the ordinary grammatical meaning of section 328 of the Constitution. Nor can this court find that such a requirement is implied as it is patently inconsistent with the words expressly used in the provision.
As MAXWELL, Interpretation of Statutes, 12th ed, states…,:
“If there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used…,. If the language is clear and explicit…, the court must give effect to it, for, in that case, the words of the statute speak the intention of the legislature.”
Moreover, what constitutes a 'major' or 'material' amendment is neither provided for nor defined in section 328 of the Constitution.
Bearing in mind that the Standing Orders permit Parliament to amend a Bill, including a Constitutional Bill, any attempt by this court to determine what is a 'major' or 'minor' amendment would indubitably require this court to unjustifiably delve into the very core of the processes of Parliament.
This court has no mandate to do so, bearing in mind that Parliament, as one of three organs of the State, has specific jurisdiction over its own processes. As a court, we should always pay attention to the vital limits of our judicial authority and the deliberate design to leave other matters to other branches of the State.
As pertinently stated by the Constitutional Court of South Africa in Economic Freedom Fighters v Speaker of the National Assembly and Ors CCT 143/15 and CCT 171/15:
“Courts should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution. It is therefore not for the court to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfil responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved. At the same time, and mindful of the vital strictures of their powers, they must be on high alert against impermissible encroachment on the powers of the other arms of government.”…,.
Earlier, in the case of Doctors For Life International v The Speaker of the National Assembly & Ors CCT 12/05, urging some caution, the Court remarked:
“The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings…,. Courts must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.”…,.
In all the circumstances, therefore, I am not persuaded that there is any basis for finding that section 328 of the Constitution imposes an obligation on the Speaker and Parliament to re-open the processes provided for in subsection (3) and (4) once amendments are effected to a Constitutional Bill.
Nor is there any basis for the suggestion that the amendments that are proposed following debate in Parliament must themselves constitute a separate Constitutional Bill.
