MALABA
CJ:
The
two applicants are Members of Parliament. They brought two separate
applications in terms of section 167(2)(d) of the Constitution of
Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read
with Rule 27 of the Constitutional Court Rules.
They
alleged failure by Parliament to fulfil the constitutional obligation
to act in accordance with the procedure for amending the Constitution
prescribed by section 328 of the Constitution.
The
allegations in the applications are the same. So are the issues. The
two applications were consolidated and heard as one.
The
applicants challenged the validity of the proceedings that culminated
in the passing of Constitutional Amendment Bill (No.1) 2017. The
relief sought is by way of a declaratory order in the terms that:-
1.
Parliament failed to fulfil the constitutional obligation provided
for in section 328(5) of the Constitution of Zimbabwe, which requires
a Constitutional Bill to be passed by two-thirds of the membership of
each House sitting separately, when it passed Constitutional
Amendment Bill (No.1) of 2017 on 25 July 2017 and 01 August 2017 in
the National Assembly and the Senate respectively.
2.
Accordingly, the proceedings in Parliament pertaining to
Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 01
August 2017 be and is hereby set aside.
3.
The first respondent pays costs of suit.
The
Constitutional Bill was intended to amend section 180 of the
Constitution insofar as it related to the procedure for the
appointment of the Chief Justice, the Deputy Chief Justice and the
Judge President of the High Court. The proposed amendment would also
add to section 180 of the Constitution a provision relating to the
appointment of the Senior Judges of the Labour Court and the
Administrative Court by the Chief Justice.
The
application was filed on 06 September 2017. Before it could be heard,
the President signed Constitutional Bill (No.1) 2017 into law.
The
applicants filed another application under CCZ58/17. They sought an
order setting aside the Constitutional Amendment Act on the basis
that Parliament had failed to fulfil a constitutional obligation in
the passing of the Constitutional Bill.
There
are two distinct challenges to the passing of the Constitutional
Bill.
The
validity of the passing of the Constitutional Bill is challenged by
impugning the proceedings in the National Assembly and the Senate.
In
respect of the proceedings in each House, the contention is that the
passage of the Constitutional Bill was in contravention of the
amending procedure prescribed by section 328(5) of the Constitution.
The grounds for the claimed violation of section 328(5) of the
Constitution are different.
In
respect of the proceedings in the National Assembly the grounds raise
factual questions, whilst the grounds in relation to the proceedings
in the Senate raise a question of law.
The
Court holds that the applicants have failed to show on a balance of
probabilities that there was no voting conducted in the National
Assembly. They also failed to show that the “Aye” votes did not
reach the required minimum threshold of 180 votes.
The
Court is of the view that the applicants have not been able to prove
failure on the part of the National Assembly to act in accordance
with the procedure for the amendment of the Constitution prescribed
by section 328(5) of the Constitution.
The
constitutional obligation imposed on Parliament by section 328 when
exercising the power to amend the Constitution is to ensure that the
procedures prescribed are complied with.
The
Court entertains no doubt that, to amend the Constitution by the
method prescribed by section 328, every requirement prescribed by the
provision must be observed. The omission to comply with any one of
the requirements is fatal to the validity of the proposed amendment.
The
applicants established that the Constitutional Bill was not passed
with the requisite two-thirds majority in the Senate. There was no
compliance with the requirements of the procedure prescribed by
section 328(5) of the Constitution.
The
reasons for the decision now follow.
The
Court notes the fact of the conflicting versions of facts and the
interpretation of the applicable constitutional provisions. The
granting of the relief sought by the applicants depends on one
reality. It is discoverable by the finding of the facts on the
matters in dispute, the declaration of the true meaning of the
applicable constitutional provisions, and the application of the law
to the facts.
The
proposed amendment to section 180(1) of the Constitution was the
cause of the events which culminated in the cause of action pleaded
by the applicants for the relief sought. Nothing turned on the
substantive value of the proposed amendment of the Constitution.
Before
the proposed amendment, section 180 of the Constitution read as
follows:
“180
Appointment of judges
(1)
The Chief Justice, the Deputy Chief Justice, and the Judge President
of the High Court and all other judges are appointed by the President
in accordance with this section.
(2)
Whenever it is necessary to appoint a judge, the Judicial Service
Commission must -
(a)
advertise the position;
(b)
invite the President and the public to make nominations;
(c)
conduct public interviews of prospective candidates;
(d)
prepare a list of three qualified persons as nominees for the office;
and
(e)
submit the list to the President; whereupon, subject to subsection
(3), the President must appoint one of the nominees to the office
concerned.
(3)
If the President considers that none of the persons on the list
submitted to him or her in terms of subsection (2)(e) are suitable
for appointment to the office, he or she must require the Judicial
Service Commission to submit a further list of three qualified
persons, whereupon the President must appoint one of the nominees to
the office concerned. …”
Section
180 of the Constitution would read as follows after the proposed
amendment:
“180
Appointment of judges
(1)
The Chief Justice, the Deputy Chief Justice, and the Judge President
of the High Court and all other judges are appointed by the President
in accordance with this section.
(2)
The Chief Justice, the Deputy Chief Justice, and the Judge President
of the High Court shall be appointed by the President after
consultation with the Judicial Service Commission.
(3)
If the appointment of a Chief Justice, Deputy Chief Justice or Judge
President of the High Court is not consistent with any recommendation
made by the Judicial Service Commission in terms of subsection (2),
the President shall cause the Senate to be informed as soon as is
practicable: Provided that, for the avoidance of doubt, it is
declared that the decision of the President as to such appointment
shall be final.
(4)
Whenever it is necessary to appoint a judge other than the Chief
Justice, Deputy Chief Justice or Judge President of the High Court,
the Judicial Service Commission must -
(a)
advertise the position; and
(b)
invite the President and the public to make nominations; and
(c)
conduct public interviews of prospective candidates; and
(d)
prepare a list of three qualified persons as nominees for the office;
and
(e)
submit the list to the President; whereupon, subject to subsection
(5), the President must appoint one of the nominees to the office
concerned.
(5)
If the President considers that none of the persons on the list
submitted to him or her in terms of subsection (4)(e) are suitable
for appointment to the office, he or she must require the Judicial
Service Commission to submit a further list of three qualified
persons, whereupon the President must appoint one of the nominees to
the office concerned.
(6)
The President must cause notice of every appointment under this
section to be published in the Gazette.
(7)
The offices of senior judge of the Labour Court and senior judge of
the Administrative Court must be filled by another judge or an
additional or acting judge, as the case may be, of the court
concerned, and are appointed by the Chief Justice after consultation
with the Judicial Service Commission.”
FACTUAL
BACKGROUND
The
main contention by the applicants was that there was no proper vote
in Parliament.
The
allegations of fact on which the applicants' cause of action was
based had no support from the evidence produced.
That
was the case in respect of what they alleged happened in the National
Assembly.
NATIONAL
ASSEMBLY
The
applicants made the following allegations of fact.
There
were 234 Members of the National Assembly present in the House on 25
July 2017 out of a total number of 270. This appears from the Order
Paper. There was a debate on the Mid-Term Budget Review and the
Economic Outlook Statement presented by the Minister of Finance on 20
July 2017.
The
fourth respondent moved a motion to adjourn the debate in favour of
the presentation of the Constitutional Bill.
There
was argument between the second respondent and Members of the
opposition. Eventually, the second respondent agreed with the fourth
respondent. He ruled that the House was to proceed with the third
reading of the Constitutional Bill.
The
first applicant moved a motion in terms of Standing Order 152(3) that
the Constitutional Bill be sent back to the Committee Stage to ensure
that it incorporated matters that had not been included in the text.
The
motion was disallowed by the second respondent.
Bells
rang so that voting could commence. According to the applicants, the
House was not properly divided at this stage.
A
point of privilege was raised to the effect that there had to be a
secret vote.
The
raising of the point that the voting be by secret ballot was based on
the suspicion that some Members of the ruling party had been
intimidated to vote for the Constitutional Bill. The contention was
that a secret ballot was necessary in the circumstances.
The
second respondent ruled that the vote was not going to be by secret
ballot.
While
the point of privilege was being considered, the tellers were
counting Members. The Members who were sitting on the Government
benches were counted as part of the “Aye” vote. Those who sat on
the opposition benches were counted as being part of the “Noe”
vote.
The
tellers told the second respondent that the “Aye” votes were 187.
The
first applicant raised an objection and pointed out that the second
respondent had the obligation to ascertain whether there were more
than 180 Members in the House. He argued that the second respondent
was obliged by Standing Order 127, to separate Members who voted in
favour of the Constitutional Bill from those who voted against it.
The
applicants aver that the process was not in accordance with Standing
Order 127. They relied on the unrevised Hansard and the Order Paper
to advance their argument.
According
to the unrevised Hansard, there was commotion in the House following
the communication to the second respondent by the tellers that 187
Members had voted in favour of the Constitutional Bill. Some Members
left the House.
The
second respondent acceded to the request that the counted numbers
should be verified.
The
Sergeant-at-Arms was ordered by the second respondent to conduct a
recount.
After
the recount, the unrevised Hansard records that the second respondent
said:
“After
the verifications, the figure given of the results of the count is:
Ayes – 182 and the Honourable Members who left are Honourable
Matuke, Honourable Chinomona, Honourable Ruvai, Honourable Nyamupinga
and Honourable Muchenje. Those against – 41. The number of
affirmative votes recorded is not less than two-thirds of the
membership of the House. I, therefore, declare the final votes in the
House on the Constitutional Amendment Bill to have been in accordance
with the provisions of Section 328(5) of the Constitution.”
According
to the applicants, the irregularities in the vote were as follows -
1.
When the bells were rung, the doors of the Chamber were closed.
Before the vote was concluded and before the verification was
conducted an Honourable Member walked in.
2.
The second respondent breached the Standing Orders by opening the
doors before the process of the vote was completed.
3.
No vote took place and the verification process became the vote. The
counting of the votes was based on an assumption that those on the
Government benches supported the motion. This is not permitted by the
Standing Orders and the Constitution.
4.
The second respondent failed to properly divide the House, as is
required by the Rules.
5.
The second respondent did not allow the Chief Whips and the
Sergeant-at-Arms together with the tellers to move around to make the
necessary verifications after the vote.
6.
Honourable Pedzisayi was counted twice for the “Aye” votes
according to the Order Paper.
The
applicants averred that the names of those alleged to have voted with
the “Ayes” appear in both the unrevised Hansard and the Order
Paper. According to both sources, there were 182 “Aye” votes.
Those who voted with the “Ayes” included the names of Honourable
Beremauro G, Honourable Mukanduri and Honourable B Tshuma. These
Members were not in Zimbabwe on 25 July 2017. They were in Uganda on
a Parliamentary visit.
The
allegation was also that Honourable D Marapira and Honourable G
Mabuwa, who were recorded as part of the Members who voted in favour
of the Constitutional Bill, were absent on official leave.
The
applicants said that Honourable M Chikukwa, Honourable M Hlongwani,
Honourable P Dutiro, Honourable Y Simbanegavi and Honourable D Ndlovu
were not present. They were nonetheless recorded as being part of the
“Aye” vote.
According
to the applicants' calculation, there were 171 “Aye” votes
against a required threshold of 180 votes in favour of the proposed
amendment to the Constitution.
There
was a contradiction in the averments.
The
applicants alleged that voting did not take place in the National
Assembly. They also said that the vote was conducted in an irregular
manner. They averred that the required minimum threshold of 180 votes
in favour of the Constitutional Bill was not reached in the National
Assembly.
The
applicants alleged that the Constitutional Bill was passed in the
Senate by 53 votes. They alleged that the minimum two-thirds
threshold for votes in favour of a Constitutional Bill in the Senate
is 54 votes.
In
opposing the application, the first, the second and the third
respondents took the preliminary point to the effect that Parliament
is not a legal persona. The contention was that Parliament cannot sue
or be sued.
On
the merits, the first and the third respondents averred that the
procedural requirement that there must be an affirmative two-thirds
vote for a valid constitutional amendment was complied with.
The
second respondent averred that he acted in accordance with Standing
Order 127 in the conduct of the vote. The bells were rung, and all
Members present moved into the Chamber. He then appointed tellers and
divided the House, by directing that the “Ayes” should go to the
right and the “Noes” should go to the left. An objection was
raised when the House had already been divided. The unrevised Hansard
relied on by the applicants did not capture everything that
transpired. The revised Hansard and the audio recording show that
voting was conducted properly. There were 182 “Aye” votes as
recorded in the corrected Hansard, unlike the numbers relied on by
the applicants which are based on the unrevised Hansard.
The
first and the second respondents relied on the Journal of the House
(“the Journal”) and alleged that it was the correct record of the
proceedings of the House. They alleged that the unrevised Hansard
relied upon by the applicants was subsequently corrected after
reconciliation with the audio recording.
Their
position was that, contrary to the allegations made by the
applicants, the audio recording captured both the division of the
House and the conducting of the vote.
The
first and the second respondents contended that the applicants'
case was based on the report in the unrevised version of the Hansard.
The names of those Members who voted were corrected in the Journal in
terms of Standing Order 131. They explained that, in terms of the
procedure of the Journals Office and the Hansard Operational Manual,
the corrected version of the Hansard and the corrected Votes and
Proceedings were filed in the Journal of the House, which is bound at
the end of each Session.
The
Master Copy of the Hansard was prepared by the Hansard Reporters
after they had gone through the unrevised version of the Hansard
while listening to the audio recording.
The
Order Paper relied on by the applicants contained errors, which were
corrected using this method.
The
second respondent conceded that, according to the corrected records,
Honourable Mukanduri, Honourable Beremauro and Honourable Tshuma were
out of the country. However, he maintained his position that
Honourable Marapira and Honourable Mabuwa were present during the
proceedings in the House relating to the voting on the Constitutional
Bill. Their inclusion on the list of Members absent with leave was an
error which was corrected.
The
second respondent maintained that, whilst the Hansard is the official
report of the proceedings in Parliament, it does not necessarily
constitute an accurate record of what transpired on the day in
question. The accurate record is contained in the Journal, which is
bound at the end of each Session after it has been proofread and
corrected if necessary. The Journal is a security item and is kept by
the Clerk of Parliament.
The
second respondent stated in the opposing affidavit in part as
follows:
“I
conducted the vote in terms of Standing Order 127. The unrevised
Hansard relied upon by the applicants did not capture that part. The
audio record recording at minute 01:58:16-20 (which audio will be
played at the hearing if required) and the corrected Hansard (vide
'CC' hereto) clearly show that the voting was done properly.…
It is also important for this Court to note that, unlike the
unrevised Hansard, the Journal (vide Annexure 'BB' hereto) is the
correct record of proceedings. See also the alterations of the Master
Copy of the Hansard (vide Annexure 'CC') before submitting it to
the printers to produce Annexure 'DD' hereto which forms part of
the Journal. … These allegations are denied. The audio recording
clearly shows what transpired …. The applicant relied on the
'Unofficial Report Unrevised' Hansard as shown on its cover and
the 'Advance copy - Uncorrected Votes and Proceedings' which the
applicant is referring to as the 'Order Paper', which may at
times contain errors, as in this case, and such errors in the names
of the division list were corrected in the Journal of the House in
terms of Standing Order 131 of the Standing Rules and Orders of the
National Assembly.”
The
second respondent took the argument further.
He
averred that the unrevised Hansard left out four Members, Honourable
Muchinguri, Honourable Mukupe, Honourable Madzinga and Honourable D
Mpofu, who were present and voted with the “Ayes”. This was
confirmed by the Attendance Register and the corrected copy of Votes
and Proceedings.
According
to this record, the “Aye” votes remained at 182.
It
was also the second respondent's contention that the Attendance
Register and the corrected copy of the Votes and Proceedings showed
those Members who were present and voted for the proposed amendment
of the Constitution. According to these records, Honourable Chikukwa,
Honourable Hlongwani and Honourable Dutiro were present and voted
“Aye”.
In
terms of the Attendance Register compiled by the Sergeant-at-Arms,
Honourable Simbabegavi was marked absent but she came late and
participated in the voting and voted with the “Ayes”.
The
second respondent alleged that the Sergeant-at-Arms failed to correct
the error.
As
for Honourable D Ndlovu, the second respondent said there was an
error. The intended entry was Honourable A Ndlovu.
In
regard to the issue that Honourable Pedzisayi was counted twice, he
admitted that there was an error, which was corrected in terms of
Standing Order 131.
The
second respondent maintained that the Journal confirmed that 182
Members voted in favour of the Constitutional Bill. He contended that
the Constitutional Bill was passed in accordance with the procedure
prescribed by section 328(5) of the Constitution.
Finally,
the first and the second respondents averred that, at the
verification of the votes, the five Members who had voted but
subsequently left the House were not included in the 182 “Ayes”.
They had initially been counted as part of the 187, but were excluded
following the verification exercise because they had left before the
verification was conducted.
The
applicants alleged, in their answering affidavits, that the documents
relied on by the first, the second and the third respondents were
fabricated, doctored and tampered with.
The
applicants relied on the unrevised Hansard, and the Order Paper. They
rejected the corrections made to the documents. The first applicant
averred in the answering affidavit as follows:
“I
also wish to state that the recordings of Parliament on the 25th of
July 2017 must have been recorded and captured on video.
Surely,
this Honourable Court has powers, which I do not have, of summoning
both the video recording of what happened in Parliament which I
notice the respondents do not refer to in their papers.”
THE
SENATE
The
vote in the Senate was conducted on 01 August 2017.
The
applicants relied on Order Paper 75, titled “ADVANCE COPY -
UNCORRECTED”, to outline the events that took place in the Senate
on the day in question.
The
applicants' position regarding the proceedings in the Senate was
that there was a vote. The contention was that the vote in favour of
the proposed amendment to the Constitution did not reach the minimum
two-thirds majority required by section 328(5) of the Constitution.
The
Order Paper and the unrevised Hansard showed that 53 Senators voted
in favour of the Constitutional Bill. The composition of the Senate
is eighty Members. The applicants contended that the minimum
threshold to be reached by votes in favour of a proposed amendment of
the Constitution in accordance with the requirements of section
328(5) of the Constitution was fixed by reference to the total number
of eighty Senators prescribed by section 120(1) of the Constitution.
Two-thirds
of 80 is 54 and not 53.
The
applicants argued that the Constitutional Bill was not passed by the
Senate in accordance with the procedure prescribed by section 328(5)
of the Constitution.
The
third respondent opposed the application insofar as it related to the
Senate. Her argument was as follows.
The
Constitutional Bill was passed with the requisite minimum two-thirds
majority. The membership of the Senate was reduced from eighty to
seventy-nine after the death of Senator Alfina Juba on 09 July 2017.
In
their answering papers, the applicants averred that the membership of
the Senate for the purpose of compliance with the requirements of
section 328(5) of the Constitution does not fluctuate. It remains at
eighty. They contended that there is need to protect the integrity of
the Constitution by requiring a two-thirds majority calculated
against a complement of eighty Members, notwithstanding the death of
a Senator.
WHETHER
PARLIAMENT CAN SUE OR BE SUED IN ITS OWN NAME
The
purpose of the exercise of jurisdiction conferred on the Court is to
ensure that the other organs of the State, such as the Legislature,
act in accordance with the rules prescribing the procedures for the
exercise of the powers conferred on them by the Constitution.
Mr
Uriri persisted with the point in limine that Parliament has no legal
personality and for that reason cannot sue or be sued in its own
name. He argued that section 118 of the Constitution, which provides
that Parliament consists of the Senate and the National Assembly,
does not create a legal persona. He reasoned that Parliament is
created by way of constitutive membership. The contention was that
the Speaker is the representative and spokesperson of Parliament in
its collective capacity. He pressed the point further by arguing that
the Speaker and the President of the Senate are cited nominally only.
He contended that relief was being sought against a body with no
legal personality.
Mr
Biti for the applicants took a contrary view.
He
argued that Parliament can sue and be sued. For this proposition, he
relied on sections 116 and 118 of the Constitution. Section 116 of
the Constitution provides that the Legislature consists of Parliament
and the President. He argued that the words “body corporate” are
not found in the Constitution. The contention was that the fact that
Parliament is not described as a body corporate capable of suing and
being sued does not rid it of its status as a constitutional body
with justiciable obligations.
Mr
Biti further relied on section 167(2)(d) of the Constitution for the
proposition that, in applications for relief in enforcing obligations
imposed on it, Parliament itself has to be before the Court.
Section
167(2)(d) provides that the Constitutional Court makes the final
decision whether the conduct of Parliament is constitutional.
The
Court was of the view that the point in limine had no merit.
Parliament
exists as a body established by the Constitution out of the joint
functions of the two Houses of the National Assembly and the Senate.
Whilst the two Houses exist separately for themselves, they exist
together for Parliament. Out of the two Houses is constituted
Parliament, which is an important body for the purposes of the
constitutional order. Together with the President, Parliament is
conferred with legislative power. It includes the power to amend the
Constitution in accordance with the procedure provided for the
purpose under section 328 of the Constitution.
There
are provisions of the Constitution which impose obligations on
Parliament.
The
constitutional provisions impose the obligations on Parliament as
directly enforceable law.
Section
119 of the Constitution imposes an obligation on Parliament to
protect the Constitution and promote democratic governance in
Zimbabwe. The obligation imposed on Parliament by section 328(5) of
the Constitution is that it must not pass a Constitutional Bill at
the last reading in the National Assembly and the Senate except by
affirmative votes of two-thirds of the membership of each House.
Section
45(1) of the Constitution provides that the provisions guaranteeing
the protection and promotion of fundamental human rights and freedoms
enshrined in Chapter 4 are binding on the State and all executive,
legislative and judicial institutions.
Fundamental
human rights are binding on Parliament as directly enforceable law.
Section
85(1) of the Constitution secures the fundamental rights and freedoms
by making courts of law accessible to any person whose rights are
violated by State authority.
That
is the case where jurisdiction over the subject matter in dispute is
not specified.
The
Court would not be in a position to exercise its jurisdiction to
determine whether the conduct of Parliament is constitutional or
whether Parliament has failed to fulfil a constitutional obligation
if Parliament, as a constitutional body, cannot be held accountable.
The
provisions of section 167(2)(d) of the Constitution show that there
is an acceptance that Parliament can be held accountable for failure
to discharge its constitutional obligations. The effect of the
provision is that the question of fulfilment of a constitutional
obligation by Parliament is a matter for the exclusive jurisdiction
of the Court.
When
the Court deals with an application for relief in terms of section
167(2)(d) of the Constitution, it essentially looks at Parliament in
the conduct of its functions. The constitutional obligation
Parliament would be accused of failing to fulfil would have been
imposed on it in its capacity as a body established by the
Constitution to exercise the legislative power conferred on it by the
legislative authority derived from the people.
Mr
Uriri relied on Woolman and Bishop, “Constitutional Law of South
Africa”, 2 edn Vol 1, Chapter 17, para 17.2, and Gauteng Provincial
Legislature v Killian 2001 (2) SA 68 (SCA), 2001 (3) BCLR 253 (SCA)
at para [26].
The
contention that the case of Killian and Others supra is authority for
the proposition that Parliament cannot be sued in its own name,
because the Speaker is the representative and spokesperson of the
Assembly in its collective capacity, must be taken in context.
The
case raised for determination the question whether the Speaker of the
Gauteng Provincial Legislature had the power to give an undertaking
with regard to costs relating to the resolution of a dispute on the
constitutionality of a Bill by the Constitutional Court in terms of
section 98(2)(d) of the Constitution of the Republic of South Africa
Act 200 of 1993.
The
case did not speak to the question whether Parliament could sue or be
sued in its own name.
The
Supreme Court of Appeal interpreted section 98(9) of the Interim
Constitution. The section provided that:
“(9)
The Constitutional Court shall exercise jurisdiction in any dispute
referred to in subsection (2)(d) only at the request of the Speaker
of the National Assembly, the President of the Senate or the Speaker
of a provincial legislature, who shall make such a request to the
Court upon receipt of a petition by at least one-third of all the
members of the National Assembly, the Senate or such provincial
legislature, as the case may be, requiring him or her to do so.”
(the underlining is for emphasis)
It
is clear that the provision explicitly gave the Speaker of the
National Assembly the power to refer a dispute to the Constitutional
Court.
As
such, the case relied upon by the first, the second and the third
respondents does not take their case any further.
Paragraph
17.2 in Woolman and Bishop “Constitutional Law of South Africa”
supra, relied upon by the first, the second and the third respondents
as authority for the proposition that Parliament cannot sue or be
sued in its name, is unhelpful. It reads as follows:
“The
NA [National Assembly] is chaired by the Speaker. The speaker is the
representative and spokesperson of the Assembly in its collective
capacity. The Speaker may therefore give binding undertakings on
behalf of the NA. Such undertakings may even embrace the expenditure
of moneys in relation to the legislative process. Though the Speaker
may be removed by a resolution of the NA, the Speaker must not bow to
political pressure and is 'required by the duties of his office to
exercise, and display, the impartiality of a judge'.”
It
is important to note that in stating the above, the learned authors
made extensive reference to the case of Killian and Others supra.
It
was the finding of the Supreme Court of Appeal that the Speaker of
the Gauteng Provincial Legislature had the power to give an
undertaking to minority political parties that the Legislature would
cover the legal costs incurred in referring a pending bill to the
Constitutional Court.
As
such, the case is not authority for the proposition that Parliament
cannot sue or be sued in its own name.
Regard
must be had to Commission for the Implementation of the Constitution
v Parliament of Kenya and Others [2013] eKLR Petition No. 454 of 2012
where the High Court of Kenya at paras 40-41 said:
“40.
I have been cautioned that the doctrine of separation of powers
forbids this court from straying into what is seen as the sphere of
Parliament. I have also been warned that 'Parliament of Kenya' as
a State organ cannot be sued by its own name.
I
think the latter issue is effectively answered by the question of
jurisdiction I have discussed above.
In
any case, and on this I agree with Mr. Regeru, counsel representing
CIC, that a reading of Article 261(5) and (6) contemplates Parliament
as the Party to any Petition that may be filed therein. The provision
reads that;
'If
Parliament fails to enact any particular legislation within the
specified time, any person may petition the High Court on the
matter.'
41.
I therefore reject the respondent's contention that Parliament, as
a State organ, cannot be sued by its own name at least for purposes
of this suit.
I
think the common law notions regarding capacity to be sued must yield
to the Constitution which recognises Parliament as a State organ and
imposes on it specific responsibilities. The doctrines of legal
personality must be read against the beam of the rich provisions of
our Constitution.”
A
reading of section 167(2)(d), as read with section 119, of the
Constitution shows that Parliament may be sued in its name. It is a
separate organ of the State which must be independently accountable
for failure to act in accordance with the constitutional obligations
imposed on it directly.
It
is the obligations imposed by sections 119(1) and 328(5) of the
Constitution, among others, that Parliament must fulfil.
It
is in respect of those obligations that the Court exercises
jurisdiction in terms of section 167(2)(d) of the Constitution.
The
Court is the highest institutional expression of the rule of law.
Its
duty is to enforce respect for and the maintenance of the
constitutional order. The constitutional order is characterised by a
fundamental system of values in terms of which validity of all
legislation and other official acts or conduct must be assessed.
Thus,
any branch or level of Government, including Parliament, that
violates the Constitution or refuses to carry out a constitutional
duty can be called to account in a proper proceeding before the
Court. It would be in the interests of Parliament to have claims of
violation of constitutional provisions imposing obligations on it
directly determined by the Court.
PRINCIPLES
GUIDING THE AMENDMENT OF THE CONSTITUTION
The
interpretation and application of the provisions of section 328 of
the Constitution, in the context of the effect of the principles on
the amendment of the Constitution, disclose the invalidity of the
passing of the Constitutional Bill in the Senate.
The
process confirms the constitutionality of the conduct of the National
Assembly.
A
Constitution is a special document. It is an embodiment of selected
legal rules which establish and regulate or govern the Government of
a country. The Constitution contains the principles and values of
governmental organisation. It is not just a fundamental law of
Government. It is a form of Government established by the people in
the exercise of their sovereignty for their own purposes. The people
declared the Constitution to be the supreme law of the land. It
imposes obligations that are binding on every person, natural or
juristic, including the State and all executive, legislative and
judicial institutions and agencies of Government at every level. The
people made it a limited Government. It is a popular Government.
Those who administer it are responsible to the people. The powers
conferred, the restrictions which are imposed, and the authorities
which are exercised, the organisation and institutions thereof which
are provided for under the Constitution, are in each case for the
same object – the common benefit and happiness of the governed.
The
people provided in the Constitution itself that it may be amended.
They prescribed the procedures for the amendment of the Constitution
to ensure that the action taken in compliance with these procedures
achieves the object of ensuring that the proposed amendment is for
the common benefit of the people.
The
fact that the Constitution is a fundamental law by which a limited
Government and the mode of its operations is established explains the
rationale behind the conditions and restrictions imposed on the
Houses of Parliament in the exercise of the power to amend the
Constitution.
The
power to amend the Constitution is a limited power. It is conferred
on the Legislature for the purpose of ensuring that it is used to
produce good governance and the happiness of the people.
James
A. Gardner in an article titled “What is a State Constitution”,
24 Rutgers L.J. 1025 (1993) at p 1034 expressed his view thus:
“On
this view, State Constitutions are not expressions of the distinctive
fundamental values or character traits of a set of heterogeneously
sovereign peoples. Rather, State Constitutions are simply local
articulations of national values; they express not our differences,
but our fundamental commonality and our mutual commitment to a shared
national project.”
MAHOMED
J in S v Makwanyane and Another 1995 (6) BCLR 665; 1995 (3) SA 391;
[1996] 2 CHRLD 164; 1995 (2) SACR 1 para [262] opined:
“All
Constitutions seek to articulate, with differing degrees of intensity
and detail, the shared aspirations of a nation; the values which bind
its people, and which discipline its government and its national
institutions; the basic premises upon which judicial, legislative and
executive power is to be wielded; the constitutional limits and the
conditions upon which that power is to be exercised; the national
ethos which defines and regulates that exercise; and the moral and
ethical direction which that nation has identified for its future.
In
some countries, the Constitution only formalises, in a legal
instrument, a historical consensus of values and aspirations evolved
incrementally from a stable and unbroken past to accommodate the
needs of the future.”
The
Constitution represents what a nation holds dearly. It represents the
areas of common interest of the whole citizenry. The Constitution is
the conscience of the people.
Amendment
of the Constitution does not extend to replacement of the
Constitution.
The
process of amending the Constitution includes variation, alteration,
modification, addition to, deletion of, or adaptation of existing
constitutional provisions.
The
Constitution is not an existential order of power. It is founded on
the fundamental principles and values listed in section 3. These
foundational principles and values are designed to inspire and
provide the basis for the rationale for the justification of any
legislative action or conduct in the exercise of public authority.
They show that the Constitution is value-oriented. It is a
fundamentally normative Constitution embracing values, rights and
duties.
The
power to amend the Constitution is conferred on the Legislature. It
is exercisable by the two Houses of Parliament on the same
Constitutional Bill whilst they are sitting separately.
The
principle of amendability of the Constitution underscores the fact
that Government pre-supposes the existence of a perpetual mutability
in its own operations for the benefit of those who are its subjects.
Representative government also pre-supposes the existence of a
perpetual flexibility in adapting itself to the wants of the people,
their interests, their habits, their occupations and their
infirmities.
The
principle of amendability of the Constitution is counterbalanced in
its application and effect by the principle of rigidity of the
Constitution.
In
the exercise of the power to amend the Constitution conferred
expressly and exclusively on it, the Legislature is subjected to a
special process. The process is defined by mandatory procedures,
compliance with which determines whether the object of amending the
Constitution has been accomplished.
The
procedure for the exercise of the power to amend the Constitution
prescribed by section 328 of the Constitution marks the Constitution
as a controlled or rigid Constitution. The obligation imposed by
section 328 of the Constitution to comply with the prescribed
procedure when exercising the power to amend the Constitution
conferred on the Legislature by section 117(2)(a) distinguishes the
exercise of the power to amend the Constitution from the exercise of
the power to amend ordinary legislation. The distinction gives effect
and value to the foundational principle of supremacy of the
Constitution.
In
Mike Campbell (Pvt) Ltd and Anor v The Minister of National Security
Responsible for Land, Land Reform and Resettlement and Anor 2008 (1)
ZLR 17 (S) at 26F-27E, the Court said:
“Zimbabwe
has a controlled Constitution. Its provisions cannot be amended,
added to or repealed without compliance with the prescribed special
formality.
Dicey
supra at pp 118-119 says that a controlled constitution 'is one
under which certain laws generally known as constitutional or
fundamental laws cannot be changed in the same manner as ordinary
laws'.…
Zimbabwe,
like many other nations with controlled Constitutions, has, in the
Constitution, a section which prescribes with meticulous precision
the special procedure for the alteration of its fundamental laws.”
In
McCawley v R 1920 A.C. 691 LORD BIRKENHEAD classified constitutions
as “controlled” and “uncontrolled”, depending on the presence
or absence of some extraordinary procedure to be adopted for
amendment of the constitution. At p 704 he observed:
“Many
different terms have been employed in the text-books to distinguish
these two contracted forms of Constitution. Their special qualities
may perhaps be exhibited as clearly by calling the one a controlled
and the other an uncontrolled Constitution as by any other
nomenclature. Nor is a Constitution debarred from being reckoned as
an uncontrolled Constitution because it is not, like the British
Constitution, constituted by historic development but finds its
genesis in an originating document which may contain some conditions
which cannot be altered except by the power which gave it birth.
It
is of the greatest importance to notice that where the Constitution
is uncontrolled the consequences of its freedom admit of no
qualification whatever. The doctrine is carried to every proper
consequence with logical and inexorable precision.
Thus
when one of the learned judges in the Court below said that,
according to the appellant, the Constitution could be ignored as if
it were a Dog Act, he was in effect merely expressing his opinion
that the Constitution was, in fact, controlled. If it were
uncontrolled, it would be an elementary commonplace that in the eye
of the law the legislative document or documents which defined it
occupied precisely the same position as a Dog Act or any other Act,
however humble its subject-matter.”
James
Bryce, in “Studies in History and Jurisprudence” Vol 1 p 166,
classified constitutions as “rigid” and “flexible”. He said:
“A
'Rigid Constitution' is one which enjoys an authority superior to
that of the other laws of the State and can be changed only by a
method different from that whereby those other laws are enacted or
repealed.
'Flexible
Constitutions', on the other hand, are those which stand upon an
equal footing with other laws and which can be changed by the same
process as other laws.”
“Flexible
constitutions” are associated with Parliamentary democracies, while
“rigid constitutions” are associated with constitutional
democracies.
In
“rigid constitutions”, the Judiciary is the guardian of the
Constitution. It has the power to determine whether all functions of
the State are carried out according to the provisions of the
Constitution. The Court also has power to declare a law
unconstitutional if it is not enacted in compliance with
constitutional provisions.
Implied
repeal is not permitted when it comes to the Constitution, because
the Constitution is a sacrosanct document which should not be
tinkered with at will. The doctrine of implied repeal is ousted by
section 328(2) of the Constitution, which provides:
“(2)
An Act of Parliament that amends this Constitution must do so in
express terms.”
The
above provision is another example which reinforces the notion that
the amendment of the Constitution is a limited power, the exercise of
which is strictly controlled.
A
Constitution is a supreme law, which is intended to guarantee
stability to a nation. It is made difficult to change to protect it
from being subject to impulses of majority, temporary excitement, and
popular caprice or passion.
In
dealing with the importance of rules on constitutional amendment,
Albert Richard, in an article titled “Amending Constitutional
Amendment Rules” (March 9, 2014), International Journal of
Constitutional Law 655 (2015); Boston College Law School Legal
Studies Research Paper No. 336, said:
“No
part of a Constitution is more important than the rules that govern
its amendment and its entrenchment against it.
In
Constitutional democracies, formal constitutional amendment rules
constrain political actors by entrenching procedures for altering the
constitutional text. Amendment rules thereby distinguish
constitutional law from ordinary law, the former generally requiring
more onerous requirements to change than the latter.
Amendment
rules also pre-commit successor political actors, create a popular
check on the judicial branch, channel popular will into institutional
dialogue, and express constitutional values.
Perhaps
their most important function, however, is to serve as a corrective
device: amendment rules authorise political actors to update the
constitutional text as time and experience expose faults in its
design and as new challenges emerge in the constitutional community.”
Section
328 of the Constitution provides in part:
“328
Amendment of Constitution
(1)
In this section —
'Constitutional
Bill' means a Bill that seeks to amend this Constitution;…
(2)
An Act of Parliament that amends this Constitution must do so in
express terms.
(3)
A Constitutional Bill may not be presented in the Senate or the
National Assembly in terms of section 131 unless the Speaker has
given at least ninety days' notice in the Gazette of the precise
terms of the Bill.
(4)
Immediately after the Speaker has given notice of a Constitutional
Bill in terms of subsection (3), Parliament must invite members of
the public to express their views on the proposed Bill in public
meetings and through written submissions, and must convene meetings
and provide facilities to enable the public to do so.
(5)
A Constitutional Bill must be passed, at its last reading in the
National Assembly and the Senate, by the affirmative votes of
two-thirds of the membership of each House.
(6)
Where a Constitutional Bill seeks to amend any provision of Chapter 4
or Chapter 16 —
(a)
within three months after it has been passed by the National Assembly
and the Senate in accordance with subsection (5), it must be
submitted to a national referendum; and
(b)
if it is approved by a majority of the voters voting at the
referendum, the Speaker of the National Assembly must cause it to be
submitted without delay to the President, who must assent to and sign
it forthwith.”
The
amendment of different constitutional provisions is not done by the
same process.
An
amendment of a provision other than Chapter 4, Chapter 16 and section
328 of the Constitution requires affirmative votes to be not less
than two-thirds of the membership of each House of Parliament.
An
amendment of a provision under Chapter 4, Chapter 16 and section 328
requires a referendum in addition to the special majority referred to
in section 328(5) of the Constitution.
The
Constitution thus follows the tradition whereby certain subjects are
too important to be amended by a special majority in Parliament. This
means that the issue of constitutional amendment is not an ordinary
provision. It is one which enjoys special protection by the
Constitution itself.
When
interpreting section 328(5) of the Constitution, this underlying
principle ought to be borne in mind.
INTERPRETATION
OF SECTION 328(5) OF THE CONSTITUTION
The
question for determination is whether section 328(5) of the
Constitution requires that the amount of the votes in support of the
Constitutional Bill must not be less than two-thirds of the total
number of persons the Constitution declares that the House consists
of. Does the subsection mean that the votes must not be less than
two-thirds of the Members of the House who are alive and capable of
voting at the time the voting is conducted?
The
two Houses of Parliament interpreted the phrase “the membership of
each House”, as used in section 328(5) of the Constitution,
differently.
The
National Assembly interpreted the words to mean the total number of
persons the Constitution has declared the House to consist of as its
Members. The Senate interpreted the phrase to mean the number of
Members of the House who are alive and capable of voting at the time
the vote on the proposed amendment to the Constitution is taken at
the third reading.
The
interpretation must take into account the language used; the context;
the subject-matter; the purpose; and the object; of section 328(5) of
the Constitution. The Court must bear in mind that it is the
Constitution it is construing.
Section
328(5) of the Constitution is a fundamental law which prescribes the
procedural and substantive requirements for a valid amendment of the
Constitution. It sets out an objective standard for the determination
of the validity of the amendment. The words “the membership of each
House”, as used in section 328(5) of the Constitution, refer to an
element of the prescribed requirements of the objective standard for
the measurement of the validity of the amendment of the Constitution
which is peculiar to each House.
The
requirement that the amount of the vote in favour of the
Constitutional Bill must be not less than two-thirds of the
membership of the House is applicable to votes by each House. The
only factor of the requirement of the objective standard for the
measurement of the validity of the proposed amendment which
differentiates one House from the other and relates to its membership
is the total number of persons the Constitution declares to be what
each House consists of.
Section
120(1) of the Constitution provides that the Senate consists of
eighty Senators, who become its members by being elected by the
electorate in the manner prescribed. Section 124(1) of the
Constitution provides that the National Assembly consists of two
hundred and seventy Members, who are elected in the manner
prescribed.
It
is necessary to consider the meaning and purpose of other provisions
of the Constitution that have a bearing on the subject of section
328(5) of the Constitution. No single constitutional provision may be
taken out of its context and interpreted by itself.
The
fundamental principle is that a constitution is a mode of limited
government, characterised by the apportionment and distribution of
powers. The powers concerned must be exercised for the benefit of the
people as a whole in accordance with the constitutionally prescribed
procedures.
Section
117(2)(a) of the Constitution expressly provides that the power to
amend the Constitution conferred on the Legislature must be exercised
in accordance with section 328.
Sections
120(1) and 124(1) of the Constitution are the laws governing the
composition of the Houses. The contents of each provision provide the
meaning of the words “the membership of each House”, as used in
section 328(5) of the Constitution.
The
subject-matter of section 328(5) of the Constitution is the objective
standard for the measurement of the validity of the amendment.
As
an element of the standard by which the validity of the amendment of
the supreme law of the land is to be measured, the membership of each
House has to be a constant element enjoying a degree of permanence.
Considering the fact that amendment of section 328(5) of the
Constitution is rendered more difficult by the requirements of
section 328(9) of the Constitution, the membership of each House in
the context of section 328(5) of the Constitution is a constant
factor.
Section
138(1) of the Constitution provides that all questions proposed for
decision in either House of Parliament are to be decided by a
majority of the votes of the Members of that House present and
voting.
The
provision of a special procedure under section 328 of the
Constitution for the exercise of the power to amend the Constitution
means that the procedure prescribed by section 138(1) of the
Constitution is not applicable to the special process of amending the
Constitution.
The
exclusion of the procedure for deciding questions proposed for
decision in either House of Parliament prescribed in section
138(1)(a) of the Constitution from the special process of amending
the Constitution is evidence of the intention of the makers of the
Constitution to protect the Constitution from fluctuating standards
for the measurement of the validity of the amendment of the
Constitution.
The
effect of the contention by the respondents that the words “the
membership of each House”, as used in section 328(5) of the
Constitution, mean the total number of Members of the House who are
alive and capable of voting at the time the vote is taken is the
importation of the procedure prescribed by section 138(1)(a) of the
Constitution into the special process of amending the supreme law of
the land.
The
interpretation of the words “the membership of each House”, as
used in section 328(5) of the Constitution, to mean the total number
of persons the Constitution declares each House to consist of is
consistent with the object of the provision.
The
purpose and object of the requirements of the procedure for the
exercise of the power to amend the Constitution prescribed by section
328(5) of the Constitution is to ensure that the amendment of the
Constitution is of common benefit to the people. The procedural and
substantive requirements of section 328(5) of the Constitution ensure
that there is representation of the people and protection of their
interests in the process of the amendment of the Constitution.
In
making the Constitution and committing themselves to it as the
supreme law of the land, the people imposed on themselves the
obligation to accept an amendment of the Constitution effected by a
vote in accordance with the standard of validity prescribed by
section 328(5).
The
meaning of the words “the membership of each House” as the whole
number of persons the Constitution has declared the House to consist
of receives support from the provisions of section 344(3) and (4) of
the Constitution. The section reads in relevant part as follows:
“344
Quorum and effect of vacancies in constitutional bodies
(1)
…;
(2)
…;
(3)
Any reference in this Constitution to the votes of —
(a)
half of the membership of a body whose membership is not a multiple
of two;
(b)
two-thirds of the membership of a body whose membership is not a
multiple of three; or
(c)
three-quarters of the membership of a body whose membership is not a
multiple of four; is to be interpreted to mean that the number of
votes must be not less than the whole number next above one-half,
two-thirds or three-quarters, as the case may be, of the body's
membership.
(4)
Any reference to the total membership of Parliament is a reference to
the total number of persons who for the time being are Members of
Parliament.”
Mr
Mpofu argued that the Constitution maintains a distinction between
section 344(4) and section 328(5).
He
submitted that the Constitution must be interpreted purposively and
not in the abstract.
He
took the point further and argued that section 344 is not a
substantive section. It is a definition section. There is a
difference in the construction of the two. Any other interpretation
would render section 328(5) meaningless. The provision is meant to
make constitutional amendment difficult.
He
finally argued that section 328 of the Constitution grades different
provisions based on how important they are.
Mr
Uriri took a contrary view.
He
argued that the first port of call is the definition of “Member of
Parliament” in the Constitution. “Membership” is derived from
“Member of Parliament”. Hence, in order to understand what
“membership” means, regard has to be had to the definition of
“Member of Parliament”. Membership depends on the construction of
“Member of Parliament”.
He
further contended that the law does not allow for a vacuum.
The
interpretation to be given to the provision must be one which best
achieves the intention of the lawmakers.
Mr
Uriri urged the Court to find, in respect of the Senate, that the
relevant number is 79. He said the reason was that section 328(5)
relates to “membership”, which is derived from “Member”.
“Member of Parliament” relates to a person who is alive and is
able to carry out Parliamentary business.
Section
344(4) of the Constitution is related to sections such as section
109(1), which relates to a vote of no confidence in Government,
section 114(2), which relates to the revocation of a declaration of
war, section 113(2), which relates to the approval of a declaration
of a State of Emergency, section 122(8)(f), which relates to the
vacation of office by the President of the Senate, and section
126(8)(f), which relates to the vacation of office by the Speaker.
The
provisions, which give substance to section 344(4) of the
Constitution, show that its application is determined by the
subject-matters to which the specific provisions relate and is
confined to those provisions. The provisions of section 344(4) cannot
be interpreted as giving meaning to section 328(5) of the
Constitution. To the contrary, section 344(4) of the Constitution
sheds light on what section 328(5) of the Constitution does not mean.
There
is no provision which is similar to section 328(5) in the
Constitution.
The
contrast can be seen in section 113(6) of the Constitution, which
provides:
“113(6)
If, by a resolution passed by a majority of the members present at a
joint sitting of the Senate and the National Assembly, Parliament
resolves that a declaration of a State of Public Emergency — …”.
This
provision relates to Members “present”.
The
majority that carries the day depends on the Members actually present
and voting.
Another
example of a similarly worded provision is section 138 of the
Constitution, which provides:
“138
Voting and right of audience in Parliament
(1)
Except where this Constitution provides otherwise —
(a)
all questions proposed for decision in either House of Parliament are
decided by a majority of the votes of the Members of that House
present and voting; …”. (the underlining is for emphasis)
The
provision under which the Constitution is amended does not relate to
the presence of the Members. Its provisions are an exception referred
to in section 138(1) of the Constitution.
It
means that in terms of section 328(5) of the Constitution the
controlling concept is the membership of the House, which relates to
the total number of persons the House is declared by the Constitution
to consist of. The number does not fluctuate since it is fixed by the
Constitution.
It
is a definite number.
When
the provisions are contrasted, it becomes apparent that “the
membership of each House”, as used in section 328(5) of the
Constitution, does not mean persons who are at any given time Members
of Parliament. Section 328(5) of the Constitution has two references
to membership of the House. The first relates to the exercise of the
power to vote. The vote can only be cast by Members of Parliament who
are present and voting. The second reference is to the objective
standard for the measurement of the votes cast in favour of the
proposed amendment to the Constitution. It is the requirement of that
objective standard that the votes in favour of the proposed amendment
must not be less than two-thirds of the membership of the House
concerned.
For
the purposes of the objective standard for the measurement of the
validity of amendment of the Constitution in terms of section 328(5)
of the Constitution, the makers of the Constitution decided to fix
the minimum threshold to be reached by the votes in favour of the
proposed amendment by reference to the constant constitutive element
of each House. They were free, in the exercise of the power of
sovereignty, to do so. They were not under delegated authority, as
the Legislature is.
Section
328(5) of the Constitution is not in conflict with any other
provision of the supreme law. The matters it regulates are exclusive
to its provisions.
“The
membership of each House” is an essential element of the
requirement of the objective standard fixed by the fundamental law.
It is therefore binding on all Members of the House, individually and
collectively, in the exercise of the power to amend the Constitution.
The
people decreed by the supreme law that the validity of the exercise
of the power to amend its provisions be determined by application of
an objective standard, which takes into account the representation
and the protection of their interests.
When
searching for the true construction of a constitutional provision, a
court must constantly bear in mind that its authors were not
executing a delegated authority, limited by other constitutional
constraints. They were establishing a fundamental law. To that extent
the people, in the exercise of the power of sovereignty, were intent
upon establishing such principles as seemed best calculated to
produce good government and promote public happiness. They did so at
the expense of any and all existing institutions which might stand in
their way.
The
objective standard for the determination of the validity of the
proposed amendment of the Constitution is applied to the amount of
votes in favour of the amendment at the third reading. It is that
vote which decides the question whether the Constitutional Bill is
passed by the House concerned. Compliance with all the procedural
requirements prescribed by section 328 of the Constitution is
obligatory.
In
enacting the provisions of section 328(5) of the Constitution, the
people deliberately chose the formulation of the objective standard
for the determination of the validity of an amendment of the
Constitution. The objective standard subjects the votes in favour of
the proposed amendment to a minimum threshold fixed by reference to
the whole number of persons fixed by the Constitution itself as the
anchor for the standard. The people settled for the formula
prescribed by section 328(5) of the Constitution because they were
satisfied that its application would secure the object of protection
and promotion of their interests. It is a means of affording indirect
popular participation in the process of amending the fundamental law.
Section
344(3) of the Constitution relates to provisions which use the
formula for determining the validity of decisions on any questions
for decision by the House by requiring the votes in favour of what is
proposed to reach a minimum threshold fixed by reference to the
membership of the body. The subsection prescribes what should happen
when “the membership of a body” is not a multiple of the
denominator to the vulgar fraction to express the minimum threshold.
The
words “membership of a body”, as used in section 344(3) of the
Constitution, relate to the whole number of members the body is
declared by the Constitution to consist of.
It
is clear from section 344(3) of the Constitution that reference to
the “membership of a body” in any provision of the Constitution
is reference to the total number of persons the Constitution has
declared the body to consist of.
It
is important to note for the purpose of the determination of the
question before the Court that section 344(3) of the Constitution
refers to “the membership of a body” when used in the
Constitution in reference to the votes of a constitutional body.
Section
328(5) of the Constitution falls into the category of provisions in
which the formula fixing the minimum threshold for votes in favour of
the proposed action by reference to the membership of the body
concerned is used.
The
words “the membership of each House” are used in section 328(5)
of the Constitution in a constitutive sense to refer to what
constitutes each House, as prescribed by the fundamental law. The
words refer to what constitutes the full strength of each House.
The
correctness of the construction of section 328(5) of the Constitution
linking the minimum threshold the votes in favour of the proposed
amendment of the Constitution have to reach to the whole number of
Members making up each House as fixed by the Constitution itself is
supported by the provisions of section 344(4) of the Constitution.
Section
344(4) of the Constitution provides that any reference in the
Constitution to “the total membership” of Parliament is reference
to the total number of persons who for the time being are Members of
Parliament.
The
definition of the total membership of Parliament is given immediately
after the provisions of section 344(3), where reference is made to
“the membership of a body”.
The
effect of section 344(4) of the Constitution is that where reference
is made in a provision of the Constitution to the “membership of a
body”, and that body is one of the Houses of Parliament, reference
is not being made to the total number of persons who for the time
being are Members of Parliament.
Section
332 of the Constitution defines “Member of Parliament” to mean a
Senator or a Member of the National Assembly.
The
people decided that the objective standard for the determination of
the validity of an amendment of the Constitution should not include
an essential element which would depend on the effects of
unpredictable occurrences of such events as death or removal from
office of Members of either House. This self-restriction in the
Constitution serves to guarantee stability and respect for the
established constitutional order.
The
amendment of the Constitution must not be an easy process.
Section
328 of the Constitution prescribes the procedure for amending the
Constitution, reflecting different degrees of difficulty depending on
the provision sought to be amended. The amendment of the Constitution
is a matter on which the public places a lot of importance. A swift
and easy method of amending the Constitution would weaken the sense
of security which the rigid Constitution gives. There would be too
little distinction from the method for amending ordinary legislation.
That would erode the special status of the supremacy of
constitutional law.
The
Constitution would not occupy the special place it occupies today in
the country's legal system.
Changing
provisions of the Constitution without following the special
procedure provided for in section 328 would expose the Constitution
to passing interests. The idea reigns that solidity and security are
the most vital attributes of a fundamental law. See Bryce “The
American Commonwealth” Vol 1: p 207.
The
effect and substantive value of the foundational principle of
supremacy of the Constitution is that, once ordained by the people,
the Constitution and its provisions bind the people themselves. The
people must respect and obey the dictates of what has been done by
Parliament within the ambit of the limited powers they would have
conferred on it and in accordance with the procedure they would have
prescribed for its conduct.
Democracy
is a limited form of government. The principle of supremacy of the
Constitution is to the effect that, once the people have given the
representatives they would have put in Parliament, the power to make
the final decision by the prescribed amount of votes in favour of the
amendment of the Constitution in accordance with the prescribed
procedure, they would have bound themselves to accept the amendment
as being in the common interests of the entire people.
Therein
lies and governs the principle of the rule of law.
It
is to the effect that law is the master to be obeyed by the State,
every person, and every institution and agency of Government at every
level.
When
a Member of a House of Parliament casts a vote in favour of the
proposed amendment to the Constitution, he or she is discharging a
democratic mandate. He or she is not casting the vote for personal
interests. The principle of representative democracy guarantees every
Member of Parliament not only freedom in the exercise of his or her
mandate but also equal status as a representative of the entire
people.
In
principle each House complies with its function as a body of
representation in its entirety. The law does not differentiate votes
in favour of the proposed amendment to the Constitution according to
the political affiliation of the Members casting the votes. The voter
acts as a Member of the House who is required to act in accordance
with his or her conscience within the confines of the duties of the
office of membership.
The
fact that a political party with a majority of Members of Parliament
manages to secure the requisite special majority of two-thirds of the
membership of the House to amend the Constitution does not change the
fact that at law the affirmative votes for the amendment of the
Constitution represent the entire citizenry.
The
reason is that, although cast by an individual, the vote is an
exercise of the power belonging to Parliament as a constitutional
body established for the purpose of exercising legislative authority
for the common good of the entire people. The people established
Parliament as a means by which they would exercise through
representatives the legislative authority they vested it with for
their common interests. The Constitution creates a representative
democracy, undergirded by the doctrine of separation of powers.
The
interpretation of section 328(5) of the Constitution must seek to
give effect to the fundamental values on which a republican form of
government is founded.
Section
328 of the Constitution does not only prescribe the procedures that
those entrusted with the power to amend the fundamental law have to
keep in mind and bear the obligation to act according to their
requirements in the exercise of the power. The duty-bearers must also
appreciate the rationale behind the limitation on the exercise of the
power conferred on them in the context of the dynamism of the
relationship with the people. They have to appreciate the legal
consequences of failure to act in accordance with the procedures
prescribed by section 328 of the Constitution.
ANALYSIS
OF THE FACTS
SENATE
The
parties disagreed when it came to the interpretation of the
provisions of section 120(1) of the Constitution, which provide for
the composition of the Senate.
It
is not in dispute that at the time the vote was conducted the Senate
had only 79 Members.
The
question is whether, in calculating the minimum two-thirds threshold,
the constitutive number, that is eighty, or the functional number of
Senators who are able to participate and cast their votes should be
used.
It
was common cause that section 344(3)(b) of the Constitution refers to
the formula used in section 328(5) of the Constitution.
In
terms of section 120 of the Constitution, the Senate consists of
eighty Senators. Section 328(5) of the Constitution requires that the
votes in the Senate in favour of an amendment of the Constitution be
not less than two-thirds of its membership.
Eighty
is the only number specified in the Constitution which relates to the
membership of the Senate in a constitutive sense.
In
terms of section 344(3)(b) of the Constitution, eighty is the
membership of the Senate. There is no provision in the Constitution
which refers to seventy-nine or any other number other than eighty in
relation to the membership of the Senate.
Now
that it has been resolved that the relevant figure is eighty, another
question arises. The question relates to whether 53 is two-thirds of
80.
This
is answered by section 344(3)(b) of the Constitution.
Eighty
is not a multiple of three. The next multiple of three after 80 is
81. One-third of 81 is 27, and two-thirds of 81 is 54. Two-thirds of
80 is 54 in terms of section 344(3) of the Constitution.
It
is not in dispute that the “Aye” votes in the Senate were 53.
They were one short. The “Aye” votes in the Senate did not reach
the required minimum two-thirds majority to pass the Constitutional
Bill.
NATIONAL
ASSEMBLY
The
parties agreed that the applicable figure with regards the National
Assembly is 270. They agreed that two-thirds of that number is 180.
The
agreement was based on the interpretation of section 124(1) of the
Constitution which provides for the composition of the National
Assembly.
The
question was whether the applicants established, on a balance of
probabilities, that there was no vote in Parliament.
The
cause of action as pleaded was the alleged complete failure by the
Speaker to conduct voting proceedings in the House to enable the
Constitutional Bill to be passed. In the same breath, the applicants
accepted that the voting did take place.
The
cause of action on this version of pleadings was that the votes cast
in favour of the Constitutional Bill failed to reach the minimum
threshold of 180 votes required by the provisions of section 328(5)
of the Constitution.
The
finding of the facts in issue depended on the finding on the accuracy
of the sources of information produced as evidence by the parties. It
is necessary to make a finding on the credibility of the evidence
adduced by the parties.
Mr
Mpofu argued that the unrevised Hansard and the Order Paper showed
that the votes in favour of the Constitutional Bill did not reach the
required minimum threshold of 180. He said the 182 votes relied upon
by the respondents to prove compliance with the procedural and
substantive requirements of section 328(5) of the Constitution
included Members who were in Uganda on official duties and those who
were absent for undisclosed reasons.
When
asked why the records of Parliament were later corrected, Mr Mpofu
argued that the “correction” was not a correction; it was a
“creation” because the error in the original documents had not
been identified. He went on to argue that “the so-called
correction” went to the substantive business of Parliament.
He
said it introduced a record that differed materially from the one
reflective of the contemporaneous objections made by the first
applicant during the proceedings of 25 July 2017.
The
contention was that the correction was designed to cover up the
irregularities in the proceedings conducted by the Speaker.
Mr
Uriri took the view that there was compliance with the Constitution.
He
argued that the applicants' cause of action was premised on the
unrevised Hansard and Order Paper, documents subsequently lawfully
corrected. He argued that the amended documents of Parliament remain
extant until they are set aside. He reasoned that there was a need
for an application for a declaration of invalidity of the amended
documents because they are an official record of Parliament.
The
contention was that there was nothing in the applicants' case on
which reliance could be placed for rebuttal of the presumption that
the contents of the official documents in the revised version
represent the truth.
The
Court noted that the applicants produced documents, the contents of
which supported some of the averments they made. The respondents did
not take issue with the authenticity of the documents produced by the
applicants to support their case. The second respondent accepted that
the documents were authentic.
The
point of departure was that the second respondent took the view that
the documents relied upon by the applicants were inaccurate. They
were subsequently lawfully corrected. The applicants, on the other
hand, rejected the corrections made to the documents, describing them
as “creations”.
The
evidence showed that the Hansard recorders recorded at ten minute
intervals. In addition, there was an audio recording of proceedings.
There was also a video recording process which was contemporaneous
with both the manual and audio recordings. A closer analysis of the
scenario suggests that Parliament had realised that it could not rely
on the Hansard recorders' record only. The fact that there were
contemporaneous audio and video recordings of the proceedings was an
indication of the fact that there was an acceptance of the fact that
a manual recording process is potentially inaccurate.
It
was difficult to understand why the applicants sought to rely on the
manual recording of the Hansard recorders, which was the basis of the
unrevised Hansard. It is the audio and video recordings which are
used to correct the unrevised Hansard record so that it reflects
accurately what transpired in the National Assembly.
The
second respondent stated that the unrevised Hansard and the Order
Paper used by the applicants were corrected in terms of Standing
Order 131. The applicants did not deny that those documents could be
lawfully corrected in terms of Standing Order 131.
Standing
Order 131 provides that:
“…
if
the numbers have been inaccurately reported or an error occurs in the
names of the division lists, the chair, on being informed of such
errors, must order the Journal of the House to be corrected”.
Standing
Order 199 on the Journal of the House provides:
“199
(1) The Clerk must produce the Votes and Proceedings of the House
which must be printed and distributed to Members from day to day.
(2)
The Votes and Proceedings so printed, bound and signed by the
Speaker, must constitute the Journal of the House.”
Katherine
Swinton, in an article titled “Challenging the Validity of an Act
of Parliament: The Effect of Enrolment and Parliamentary Privilege”,
Osgoode Hall Law Journal, Vol 14, No. 2 (October 1976) pp 348-349,
while writing on parliamentary practice, said:
“Therefore,
the enrolled copy of an Act would appear to be the original copy
retained by the Clerk of the Parliaments. This makes no reference to
the number of votes recorded nor the number of readings in the
passage of the bill, showing only that the House of Commons and
Senate passed the bill and royal assent was recorded on stated dates.
To
learn of the exact number of votes in favour of a bill and the number
of readings, it is necessary to refer to the Journals of the
respective Houses or to Hansard.
The
Journals are the official record of the proceedings of the House.
They are compiled daily from the 'scroll' of the Clerk. The
scroll, in reality foolscap sheets written in longhand by the Clerk,
records the events of the House, whether the tabling of documents,
the readings of a bill, or the votes on a bill or an amendment.
The
Journals made up from the scroll are more comprehensive, as they
include the text of amendments and the results of recorded divisions,
as well as the date of royal assent to bills, the Speaker's rulings
on procedure and questions of privilege, and the text of royal
recommendations.
According
to Beauchesne, any conflict between the scroll and the Journals would
be solved by reliance on the Journals.
The
Journals do not serve the same purpose as Hansard, although there is
some slight degree of overlap in their content. Hansard records the
verbatim proceedings of the House, that is, the speeches and comments
in the Chamber. The Journals are much more cryptic and are similar to
minutes of a meeting. Their judicial treatment is also potentially
different: the Journals are admissible evidence, whereas Hansard is
normally excluded.
In
practice, it may be that the Journals can rarely be admitted due to
parliamentary privilege, but they are at least potentially open to
judicial scrutiny.” (the underlining is for emphasis)
When
the second respondent produced documents that corrected some of the
errors, it was incumbent on the applicants to rebut the respondents'
version by tendering evidence which showed that the respondents'
version of events could not be possibly true.
In
para 58.4 of the first applicant's answering affidavit, he averred:
“This
is why even at this late stage, the second respondent has failed to
produce affidavits from the two Honourables Mabuwa and Marapira to
prove that they were in Parliament. They were not. I do not recall
seeing them there and the Hansard confirms this.”
The
second respondent denied the averment and produced documents that
proved that the two Members were in the House during the time the
voting for the proposed amendment of the Constitution was conducted.
It
was not for the second respondent to prove the presence of the
Members concerned. It was for the applicants to prove their absence.
The
applicants obtained an affidavit from the Honourable Brian Tshuma,
who said that at the relevant time he was away in Uganda on
Parliamentary business.
That
fact did not take the applicants' case any further.
It
was confirmed by the corrected record of proceedings.
The
applicants did not allege that they had correlated the manual
recording and the audio recording in order to verify the accuracy of
what the respondents alleged. On the other hand, the second
respondent took the trouble to go through the audio recording in
order to satisfy himself that the unrevised Hansard tallied with it.
As a result of the process, the second respondent made corrections to
the master copy of the unrevised Hansard to create documents that
accurately reflected what transpired in the House on 25 July 2017.
The
applicants cannot deny the correctness of the audio recording without
themselves having correlated their unrevised Hansard to the audio
recording.
One
cannot deny the correctness of a superior recording mechanism on the
strength of a document prepared using a potentially inaccurate method
of recording without first verifying the contents of the more
superior method of recording.
Before
criticising the revised Hansard, the applicants needed to correlate
the manually prepared Hansard with the audio recording.
The
version backed by the evidence with more probative value is the one
to be preferred.
The
probative value of evidence is impacted upon, negatively or
positively, as the case may be, when regard is had to the manner in
which the evidence was compiled. The documents produced by the second
respondent are corroborated by the audio recording, the more accurate
of the means of recording. The Court would lean towards the party who
took the trouble to revisit the audio recording.
The
National Assembly is a creature of the Constitution and it is one of
the constituent parts of Parliament. There is a presumption of
constitutionality as regards the conduct of business of the House. It
has been said that the presumption is in favour of every legislative
act, and that the whole burden of proof lies on the party who denies
its constitutionality. Brown v Maryland 25 U.S. 419, 436 (1827);
Lawrence v State Tax Commission of Mississippi 286 U.S. 276, 283
(1932).
Having
made the finding that the revised Hansard is the true record of what
ensued in the National Assembly, regard must be had to the contents
of the revised Hansard in an effort to establish whether or not a
vote did take place in the House.
The
revised Hansard shows that the following happened in the National
Assembly:
“…
[HON
MEMBERS: Inaudible interjections]- No, I have ruled – [HON MEMBERS:
Inaudible interjections.] – Order, order, we proceed. Section
328(5) of the Constitution of Zimbabwe provides that, 'A
Constitutional Bill must be passed, at its last reading in the
National Assembly and in the Senate, by an affirmative vote of
two-thirds of the membership of each House.'
In
order to comply with the provision of Section 328(5), it is necessary
that the number of the affirmative votes cast by Members be recorded.
I therefore direct that the bells be now rung after which the votes
of – [HON MEMBERS: Inaudible interjections.] – Hon. Members will
be counted – [HON. MEMBERS: Inaudible interjections.] –
[Bells
rung].
[House
divided].
HON.
ADV.CHAMISA: Hon. Speaker, we are grateful that you have managed to
divide the House which is not a problem in itself but realising that
this is a Constitutional Bill, it is a Bill – [HON. MEMBERS:
Inaudible interjections.]… What I am submitting Hon. Speaker, is
that let us allow the secrecy of the vote by Members of Parliament –
[HON. MEMBERS: Hear, hear] – so that we have a secret ballot. There
are Members who are intimidated from the other side. They have been
complaining to us Hon. Speaker Sir. Voter intimidation cannot be
allowed in Parliament. … As individual Members, we feel that let us
vote without fear or favour; without intimidation and let us make
arrangements for a secret ballot for this vote is an important Bill
being a Constitutional Bill. Hon. Speaker Sir, I so request.
THE
HON. SPEAKER: Order, Order. I hear you Hon. Chamisa … in this case,
I say no secret ballot.
HON.
TOFFA: Point of order Mr. Speaker Sir. …
THE
HON. SPEAKER: Hon. Toffa, can you take your seat? – [HON. MEMBERS:
Inaudible interjections] – Order, order! Sit down. Order, the
tellers have been counting and we want to hear the numbers –
[AN
HON. MEMBER: The correct numbers not just the numbers]- I will send
you outside now and can you be orderly. What numbers do we have from
the Ayes?
HON.
MUKWANGWARIWA: We have 187.
THE
HON. SPEAKER: And this side?
HON.
GONESE: Mr Speaker, I think that procedurally – [HON. MEMBERS:
Inaudible interjections.]-…
HON.
GONESE: I am saying that the position in terms of the constitutional
provisions is that the affirmative votes, it does not matter how many
votes we have this side. It has to be 180+. So, we have got to verify
that first. From our side, those we counted, we came up with 173. We
might have made an error and this is why we need a physical count. We
need to have a physical count and confirm the names with the people
who are here because we do not know each other. We have to verify
firstly how many people are there because when we counted Mr.
Speaker, we have come up with a figure which is about 173 which is
well short of that number. We have made an error and we need to
verify because this is just to fulfil the constitutional position. We
have to comply with our Constitution because some people were seated
haphazardly and it was not easy to verify.… We need to count
physically as to how many Members there are.
THE
HON. SPEAKER: What is your number?…
HON
GONESE: The numbers on this side Mr. Speaker are not relevant. We
need to verify affirmative votes,… The affirmative votes are the
ones which count, even if there were two people on this side, it does
not really matter, what matters are the affirmative votes. That is
what matters. So, for me Mr. Speaker, we need to verify that number
because even if there were two people or zero people, it would not
matter, because what matters is whether there is one-third or
two-thirds which is 180+. So, my view is that we have to confirm the
affirmative votes. Are they 180+? If they are not 180+, then that is
not correct.…
THE
HON. SPEAKER: And what is your number?…
HON
GONESE: I will give you the number Mr. Speaker. The number which we
have is 41 but we still need verification – [HON. MEMBERS:
Inaudible interjections.] –
THE
HON. SPEAKER: Order. … I have consulted with the Leader of
Government Business and we will verify the numbers this side –
(Right side of the Chair.) – and we want Tellers now – [HON.
MEMBERS: Inaudible interjections] – Order, order. I am going to
announce the results and then we verify…
HON.
MLISWA: On a point of order Mr. Speaker Sir.
THE
HON. SPEAKER: What is your point of order?…
HON.
MLISWA: I cannot speak when they are making noise and standing - ……
THE
VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY
AFFAIRS (HON. E.D. MNANGAGWA): Mr Speaker Sir, may I request Hon.
Members who are standing, if they have places to sit, to sit down.…
Mr. Speaker Sir, the request by the Members of the opposition is that
they would want the figures to be verified. My view in democracy is
that we must be very transparent. May I ask Hon. Members to become
honourable as they are Honourable Members?… Mr. Speaker Sir, the
point currently in question is the question of verifying the numbers
that have been mentioned by appointed counters from both sides, but
there is need from the other side - they want us to verify the
numbers that you have been given as Mr. Speaker, after the count. I,
representing this side, agree that quietly, can we have the
Sergeant-at-Arms count our side, he gives you the number and he comes
to the other side when everybody is seated, and gives you the number
–…
HON.
KHUPE: Thank you very much Mr. Speaker –
HON.
MLISWA: I have not been given the chance and I am just equal to them.
– Mr. Speaker Sir, I agree 100 per cent with the Vice President
that the votes must be verified – but my point is that, votes must
be verified to the satisfaction of both sides and the only way we can
be satisfied is that two Chief Whips from MDC count the ZANU PF side
and those from ZANU PF count the MDC side together with the
Sergeant-at-Arms. That is the only way we can be satisfied that the
numbers are correct. Mr. Speaker Sir. We want fairness in this House.
If indeed we are not hiding anything, let us do it like that.
THE
HON. SPEAKER: Order, order. Hon. Chamisa please, please be quiet. The
Sergeant-at-Arms can be accompanied by two Whips –…
HON.
MLISWA: I have to be part of the counting as well because I am an
independent Member and the Chief Whips cannot count us.
Mr.
Speaker directed the Sergeant-at-Arms to conduct a recount of Hon.
Members on the right side.
THE
HON. SPEAKER: After the verifications, the figure given of the
results of the count is: Ayes – 182 and the Hon. Members who left
are Hon. Matuke; Hon. Chinomona, Hon. Ruvai, Hon. Nyamupinga, Hon.
Muchenje -… Those against – 41. The number of affirmative votes
recorded is not less than two-thirds membership of the House. I
therefore, declare the final votes in the house on the Constitutional
Amendment Bill to have been in accordance with the provisions of
section 328(5) of the Constitution.
AYES:
{Lists the individual names of those voting in favour of the bill}
Teller: Rungani, A. NOES: {Lists the individual names of those voting
against the bill} Teller: Gonese, I. Bill read the third time.…”.
The
record shows that there was a vote.
The
second respondent called for a vote and the opposition requested for
a division of the House. It is not in doubt that the bells were rung
and the House was divided. A teller was appointed who then took up
his duty and counted the Members in the divisions. In the presence of
all the Members, he communicated that there were 187 “Aye” votes.
Thereafter, there was heckling in the House as the opposition
requested that the votes be verified. At that stage, no complaint was
made to the effect that there was no vote count. What was challenged
was the accuracy of the count of 187 affirmative votes. The first
applicant agreed that the opposition had 41 votes.
That
admission, reflected in the corrected Hansard, is evidence that there
was a vote.
Verification
connotes a vote.
It
is the first applicant himself who requested a verification. The
verification established 182 “Aye” votes. An explanation was made
that Honourable Matuke, Honourable Chinomona, Honourable Ruvai,
Honourable Nyamupinga and Honourable Muchenje left the House after
the results of the vote were declared. The five Members attended the
voting proceedings on the day in question. The revised papers also
show the names of those who were absent. The five Members were not
part of the absentees.
The
applicants did not deny the fact that they were given an opportunity
to verify the votes.
They
accept that verification took place. One cannot speak of verification
without accepting that there was a process that resulted in the
request for the verification of the results. By requesting a
verification, the applicants accepted that there was a vote.
It
is a clear contradiction in the applicants' case to suggest that
there was no vote and then later accept that there was a verification
process which established that an affirmative vote of 182 was reached
in the National Assembly.
The
unrevised Hansard shows Honourable Chamisa interjecting before the
count. The applicants rely on that to say that there was no vote.
The
revised Hansard shows that the interjection by Honourable Chamisa
came after the result of the vote had been communicated.
A
vote is an expression of a will. It can be expressed in a number of
ways. Divisions are used for counting those in favour of or against a
motion. Once the House is divided, it means a person would have moved
over to the side with which he or she wants to vote. The movement to
the side of the House is the voting.
In
this sense, the allegation that there was no “formal vote” is of
no consequence.
The
law requires that there be a vote and it does not require that it be
a “formal vote”. The law requires that an individual Member of
the National Assembly express his or her will. That was done by
moving towards either side of the House when it was divided.
In
a paper titled “Divisions in the House of Commons: House of Commons
Background Paper”, Commons Briefing Papers SN 06401, 2 August 2013,
Mark Sandford explained:
“A
vote in the House of Commons is known as a 'division'. Members
vote by walking through either an Aye (yes) or a No lobby. Their
names are recorded as they file past the clerks and are then counted
by the Tellers.”
Woodall
Parker in “Outlines of the Constitution of the British Government
in India” p42, opines:
“The
voting is taken by the Speaker asking members to say aye or no to the
question; he decides which are in the majority; and if his decision
is questioned a division takes place and the members are counted.”
The
first applicant's founding affidavit was to the effect that when
Honourable Chamisa made the interjection, the tellers were already
counting Members where they were sitting.
The
division of the House is the vote itself.
Once
Members moved to either side of the House, the tellers had to start
counting them where they were sitting.
The
suggestion that there be a secret ballot had lost its relevance.
Members had already voted by reason of the seats they elected to take
when the House was divided.
After
the vote was conducted, Members in the “Noes” division demanded a
verification of the votes. The fourth respondent acceded to the
request. This was captured in both the unrevised Hansard and the
Journal.
The
applicants would not have asked for a verification of votes if there
had been no voting done.
The
applicants conceded that the fourth respondent acceded to a
verification process. Paragraph 89 of the first applicant's
founding affidavit reads:
“The
committee stage was completed on the 27th of June 2017. However, on
this day, the fourth respondent did not have the required numbers and
he did not seek leave of the House to proceed to the third reading.”
The
fourth respondent deferred the third reading on 27 June 2017 because
he did not have the requisite numbers to secure the votes in favour
of the Constitutional Bill and reach the minimum threshold for its
passage in the House in accordance with the requirements of section
328(5) of the Constitution. By parity of reasoning, when he requested
the third reading on 25 July 2017 he had the requisite numbers. The
fourth respondent could not have sought leave to proceed to the third
reading of the Constitutional Bill if he did not have at least 180
Members in attendance who were most likely to vote in favour of the
proposed amendment of the Constitution.
It
is common cause that after a Constitutional Bill is passed by the
National Assembly the Speaker is required to present a certificate
which states that the Bill received the affirmative votes of at least
two-thirds of the membership of the House. Section 328(10)(a) of the
Constitution provides as follows:
“(10)
When a Constitutional Bill is presented to the President for assent
and signature, it must be accompanied by —
(a)
a certificate from the Speaker that at its final vote in the National
Assembly the Bill received the affirmative votes of at least
two-thirds of the membership of the Assembly;…”. (the underlining
is for emphasis)
The
above section makes it clear that the Speaker's certificate speaks
to the presumption of the fact that there was an affirmative vote on
the day in question and that the vote reached the requisite minimum
threshold of two-thirds majority of the membership of the House. The
certificate is an integral part of the legislative process. It is
taken as evidence of the facts it contains. It creates a
constitutional presumption of regularity.
In
order to rebut the presumption, the applicants needed to show that
the certificate was not born out of a process that is consistent with
the law.
It
was a contradictory pleading for the applicants to allege that the
vote in favour of the Constitutional Bill did not reach the minimum
threshold of two-thirds of the membership of the House when they
averred at the same time that no vote was conducted.
The
question of whether the required threshold was reached could not
arise if there was no voting conducted by the Speaker. One cannot
allege that the required threshold was not met without accepting that
there was a vote. Implicit in the alleged failure to reach the
required minimum threshold is an acceptance that a vote was
conducted.
One
cannot make two mutually inconsistent averments in the same pleading.
It has the effect of destroying the cause of action because a cause
of action cannot be sustained by contradictory averments.
The
existence of a vote is in itself an important element of the question
whether there was a two-thirds majority. One cannot deny a process of
voting and then go on to argue about what was claimed to have been
the result of that process.
For
one to establish the existence of a two-thirds majority, there must
be an underlying vote that resulted in a figure which then becomes
the subject of a challenge.
The
applicants alleged that the results of the vote included Members of
the National Assembly who were actually absent during the vote.
The
revised Hansard showed, upon a physical count, that 239 Members were
present in the House on 25 July 2017, excluding those who were
allegedly counted yet they were absent. The figure of 239 was
different from the 234 Members who were alleged by the applicants to
have been in the House. The applicants relied on the figures from the
unrevised Hansard. The unrevised Hansard reflected inaccurate
figures.
APPROPRIATE
REMEDY
The
analysis demonstrates that the applicants failed to show that the
Constitutional Bill was not passed in the National Assembly in a
manner prescribed by the Constitution. The applicants have been able
to show that the Constitutional Bill failed to garner the requisite
54 votes needed for it to be passed in the Senate.
The
Constitution is the supreme law of the land. It is binding on every
person and every institution of Government. The purpose of the acts
to be done and the requirements to be observed before an amendment of
the Constitution can be effected is to enforce the supremacy of the
Constitution and the principle of the rule of law.
The
Court is required by constitutional policy to pronounce against any
amendment of the Constitution which is not shown to have been made in
accordance with the rules prescribed by the fundamental law.
Power
exercised in accordance with procedures prescribed by law is
exercised in accordance with the principle of the rule of law.
It
was a constitutional obligation on Parliament not to pass the
Constitutional Bill in the Senate when the votes in favour of the
proposed amendment were less than two-thirds of the membership of the
House. There was a violation of the Constitution.
Section
175(6) of the Constitution provides as follows:
“(6)
When deciding a constitutional matter within its jurisdiction a court
may —
(a)
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of the inconsistency;
(b)
make any order that is just and equitable, including an order
limiting the retrospective effect of the declaration of invalidity
and an order suspending conditionally or unconditionally the
declaration of invalidity for any period to allow the competent
authority to correct the defect.”
The
question whether the Constitutional Bill ought to be set aside
depends on whether the invalidity of the process in the Senate is
severable from the validity of the process in the National Assembly.
Paragraph
5 of the Fifth Schedule to the Constitution provides as follows:
“PROCEDURE
REGARDING BILLS
5.
Transmission of Bills between Houses
A
Bill which originated in one House of Parliament and has been passed
by that House must be transmitted to the other House without delay,
and the date of its transmission must be recorded in the journal of
the House from which it is transmitted.
(2)
A Bill that has been transmitted to a House of Parliament must be
introduced into that House without delay, and the House may reject
the Bill or pass it with or without amendment.
(3)
A Bill which, having been transmitted to a House of Parliament in
accordance with this paragraph, is passed by that House with
amendments must be returned to the House where it originated 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.
(4)
If, after a Bill has been returned to its originating House in terms
of subparagraph (3), any amendment made to it by the other House is
rejected or amended by the originating House, the other House may, by
message to the originating House pursuant to a resolution, withdraw
the amendment or agree to its being amended.”
Section
328(5) of the Constitution also shows that a Constitutional Bill
would be passed by the requisite votes cast in each House in separate
proceedings.
The
two provisions, read together, show that there are two different but
complementary processes, that is, the process in the National
Assembly and the process in the Senate. The difference in the
processes is underscored by the fact that a Bill that originates in
the National Assembly, if it fails to garner the required votes, will
not be transmitted to the Senate and vice versa.
The
Constitutional Bill, after the voting process in the National
Assembly, was transmitted to the Senate. The process in the National
Assembly was regular. Only the process in the Senate was irregular.
The invalidity of the proceedings in the Senate does not affect the
validity of the proceedings in the National Assembly.
The
third respondent, together with the second respondent, prepared the
certificate in terms of section 328(10)(b) of the Constitution. The
third respondent had calculated the minimum threshold from the number
seventy-nine and not eighty. The proceedings were conducted on the
understanding that fifty-three votes in favour of the proposed
amendment of the Constitution would be enough.
It
was an error of law.
As
such, the invalidity of the process in the Senate was informed by the
misinterpretation of section 328(5) of the Constitution. The Senate
ought to be afforded an opportunity to conduct the vote with a full
appreciation of what is required for a Constitutional Bill to be
passed. The order to that effect would be consistent with the
provisions of section 175(6)(b) of the Constitution.
DISPOSITION
1.
It is declared that the passing of Constitutional Amendment Bill
(No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with
the provisions of section 328(5) of the Constitution, to the extent
that the affirmative votes did not reach the minimum threshold of
two-thirds of the membership of the House.
Constitutional
Amendment Bill (No.1) of 2017 is declared invalid to the extent of
the inconsistency.
The
declaration of invalidity shall have effect from the date of this
order but is suspended for a period of one hundred and eighty days,
subject to the provisions of paragraph 1(b).
Accordingly,
the following order is made:-
(a)
The proceedings in the Senate on 01 August 2017 when Constitutional
Amendment Bill (No.1) of 2017 was passed be and are hereby set aside,
for the reason that a two-thirds majority vote was not reached in
that House.
(b)
The Senate is directed to conduct a vote in accordance with the
procedure for amending the Constitution prescribed by section 328(5)
of the Constitution within one hundred and eighty days of this order,
failing which the declaration of invalidity of Constitutional
Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.
2.
The applicants' allegation that there was no vote in the National
Assembly on 25 July 2017 when Constitutional Amendment Bill (No.1) of
2017 was passed be and is hereby dismissed for lack of merit.
3.
The applicants' allegation that a two-thirds majority was not
reached in the National Assembly on 25 July 2017 when Constitutional
Amendment Bill (No.1) of 2017 was passed be and is hereby dismissed
for lack of merit.
4.
There is no order as to costs.
GWAUNZA
JCC: I agree
GARWE
JCC: I agree
GOWORA
JCC: I agree
HLATSHWAYO
JCC: I agree
PATEL
JCC: I agree
GUVAVA
JCC: I agree
MAVANGIRA
JCC: I agree
BHUNU
JCC: I agree
Tendai
Biti Law, applicants' legal practitioners
Chihambakwe
Mutizwa and Partners, first, second and third respondents' legal
practitioners
Civil
Division of the Attorney General's Office, fourth and fifth
respondent's legal practitioners
