Application
in terms of section 167(2) of the Constitution
MAKARAU
AJCC:
Background
The
applicant is a duly elected Member of Parliament for the Norton
Constituency. On 24 June 2020, during an ordinary sitting of the
National Assembly over which the Speaker of Parliament was presiding,
he was removed from Parliament and suspended for six consecutive
sittings for allegedly behaving in a violent and grossly disorderly
manner. The expulsion and suspension were ordered by the Speaker of
Parliament, (“the Speaker”).
Aggrieved
by the expulsion and suspension, the applicant filed this application
on 20 July 2020. The application, brought specifically in terms of
section 167(2(d) of the Constitution, alleged that the respondent had
failed to fulfil a constitutional obligation to ensure compliance
with its Standing Orders.
In
particular, the applicant sought to demonstrate how the expulsion was
inconsistent with the procedures and the powers granted to the
Speaker by the Standing Orders and in terms of which the Speaker
purportedly acted.
The
applicant further denied having been disorderly as alleged or at all.
He also challenged the propriety and validity of the punishment that
was meted out to him on the basis that he was not afforded the right
to be heard before he was punished.
The
application was opposed with the respondent's opposing affidavit
being deposed to by the Speaker.
In
addition to opposing the matter on the merits, the respondent raised
five preliminary points. Not necessarily in the same order in which
the points were raised in the opposing affidavit, the respondent
challenged the jurisdiction of this Court, the validity of the
application itself by alleging that it was fatally defective for want
of compliance with the rules of the court and the efficacy of the
relief sought which it alleged was moot since the applicant had
already served the punishment by the time of the filing of the
application.
The
respondent also challenged the non-joinder of the Speaker which it
alleged was fatal to the application and, finally, it requested that
this Court withholds its jurisdiction as the matter was pending
before the High Court where similar relief had been sought under case
no HC3367/2020.
Regarding
the merits of the application, the respondent contended in the main
that the applicant had indeed behaved in a disorderly manner and that
the punishment meted out to him was appropriate and in accordance
with the powers granted to the Speaker by the Standing Orders. The
respondent specifically denied that the Speaker had exceeded his
authority and powers as alleged in the application or at all.
The
Issue
As
stated above, the respondent raised the issue of the jurisdiction of
this Court as one of its preliminary points. This it however did in
direct response to the allegation that the applicant had not been
afforded the right to be heard before he was punished.
In
response to this specific allegation, the respondent contended that
the applicant ought to have approached the High Court on review,
challenging the procedure leading to his punishment. It was thus the
position of the respondent, erroneously held in my view, that since
the High Court also enjoyed review jurisdiction in the matter, the
jurisdiction of this Court was not triggered.
Whilst
nothing turns on this point I wish to note in passing that this Court
enjoys concurrent jurisdiction with other courts in constitutional
matters. The coincidence of jurisdiction with the other courts does
not oust the jurisdiction of this court.
The
position may be contrasted with instances where this court has been
granted exclusive jurisdiction. In those instances, naturally, it is
the jurisdiction of the other courts that is ousted even if the
matter is, technically, a constitutional matter.
Without
necessarily accepting as correct the basis upon which the respondent
challenged its jurisdiction in the matter, the court was on its own
accord concerned with whether its jurisdiction had been triggered at
all by the averments made in the application, taken in their
totality.
It
therefore raised the issue for preliminary argument.
The
specific question put to both parties for the preliminary address was
whether the applicant had chosen the appropriate forum and remedy for
the vindication of his alleged injury.
Therefore,
the sole issue that fell for determination in this preliminary ruling
was whether the conduct complained of by the applicant was conduct
signifying failure by the respondent to fulfil a constitutional
obligation.
The
Submissions
In
the main, counsel for the applicant submitted that by failing to
follow the provisions of its own Standing Orders, the respondent had
failed to uphold the rule of law and had acted without due process.
To
buttress his submissions in this regard, counsel relied heavily on
the principles of constitutional supremacy and accountability and on
which he expended the bulk of his time and energy.
Regarding
the jurisdiction of this Court, counsel submitted that this court had
jurisdiction as the respondent had a constitutional obligation which
it breached “through its Speaker”. It was thus his argument that
the Speaker and the respondent were inseparable and that once he was
in the House, the Speaker represented the respondent. On that basis,
he invited us to find as a fact that the expulsion and suspension of
the applicant was conduct by the respondent, “through its Speaker”.
Counsel
for the respondent in turn submitted that the application was not
properly before the court as the conduct complained of was not that
of the respondent.
It
was his argument that the Speaker is separate and distinct from the
respondent.
In
support of this argument, Counsel maintained the respondent's
position, once again erroneously held in my view, to the effect that
the Speaker ought to have been cited as a co-respondent in this
application as he was the decision maker in the instance and it is
his conduct that allegedly violated the provisions of the Standing
Orders.
The
Law
That
the power granted to the courts by the new Constitution to hold
public officers accountable to the Constitution marks a clear
departure from the state power sharing arrangement provided for under
the repealed Constitution and the jurisprudence that emerged under
that order, is now commonplace.
Our
constitutional order has evolved from one where the conduct of those
wielding public power was predominantly immune to judicial review,
insulated and shielded from such by the strict application of the
doctrine of separation of powers, to one where the conduct of all
public affairs must measure up to the constitutional imperatives
under the watchful eye of the judiciary, which in turn is also
obliged to always venerate the Constitution.
Commenting
on the new constitutional order, PATEL
JA
in
Judicial
Service Commission v Zibani & Others
SC68/17 had this to say:
“It
is axiomatic that Zimbabwe is a constitutional in contradistinction
to a parliamentary democracy. See Biti
& Anor v Minister of Justice, Legal and Parliamentary Affairs &
Anor
2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its
concomitant legal ramifications are codified in section 2 of the
Constitution as follows:
(1)
This Constitution is the supreme law of Zimbabwe and any law,
practice, custom or conduct inconsistent with it is invalid to the
extent of the inconsistency.
(2)
The obligations imposed by this Constitution 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, and must be fulfilled by them.”
Adding
a building block onto the now settled jurisprudence on the new
constitutional dispensation, HLATSHWAYO
JCC
in Chironga
and Another v Minister of Justice, Legal and Parliamentary Affairs
and Others
CCZ14/20 opens his judgment by noting that:
“One
of the crucial elements of the new constitutional dispensation
ushered in by the 2013 Constitution is to make a decisive break from
turning a blind eye to constitutional obligations. To achieve this
goal, the drafters of the Zimbabwean Constitution Amendment No.20 Act
2013, (“the Constitution”), adopted the rule of law and the
supremacy of the Constitution as some of the core founding values and
principles of our constitutional democracy. For this reason public
office bearers ignore their constitutional obligations at their own
peril.”
The
above remarks are ample evidence if any is needed, that the doctrines
of constitutional supremacy and accountability under the new
Constitution have been fully embraced by this Court and underpin the
jurisprudence that is emerging therefrom.
Detailed
and spirited submissions by counsel for the applicant on these
principles, whilst necessary to establish the base-line from which
all other arguments in the matter would be considered, were thus as
effective as preaching to the clergy.
Similarly,
this Court has also accepted and holds as the correct position at law
that the respondent has an obligation to protect the Constitution and
to promote democratic governance in Zimbabwe.
It
accepts that the respondent has the obligation to uphold, among
others, the rule of law and supremacy of the Constitution, two of the
founding values and principles set out in the Constitution.
In
Gonese
& Anor v Parliament of Zimbabwe & Ors
CCZ4/2020, MALABA
CJ
noted
at p15 of the judgment, that there are provision in the Constitution
that impose obligations on the respondent as directly enforceable
law. In his words:
“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”.
As
stated above, the submissions by counsel for the applicant on the
supremacy of the Constitution and the transition from
non-accountability to full accountability under the Constitution by
all wielders of public power, whilst correct, do not go anywhere near
addressing the issue that arises in this matter.
The
issue that arises is whether the respondent acted at all or omitted
to act and, in so doing, failed to fulfil an obligation imposed upon
it by the Constitution as envisioned by section 167(2)(d) of the
Constitution.
The
power granted to this Court “to determine whether Parliament or the
President has failed to fulfil a constitutional obligation” is a
specific and deliberate mechanism introduced into the procedures of
this Court to ensure that Parliament and the President fulfil their
respective constitutional obligations.
It
is necessarily granted in clear and unambiguous terms to constitute
the vehicle only through which the supremacy of the Constitution can
be fully realised and the provisions of section 2(2) of the
Constitution fulfilled in respect of Parliament and the President.
It
sets the tone for the exercise of constitutional jurisdiction by the
other courts over all other wielders of state power. The mechanism is
therefore a deliberate attenuation of the applicability of the
doctrine of separation of powers among the organs of state.
For
the effective and smooth functioning of the state, the comity that
must exist between the judiciary and the other organs of state must,
as before, act to restrain this Court from using its special
jurisdiction save in strict compliance with the section.
Quite
apart from the comity considerations, the ambit of the court's
jurisdiction under section 167(2)(d) is procedurally limited by the
requirements of the cause of action that is created by the section.
These
are clear cut. They are:
(i)
an identified constitutional obligation; and
(ii)
conduct or an omission by the respondent signifying a failure to
fulfil the obligation.
The
two requirements are not consecutives but are concomitants, both of
which must be alleged and proved.
In
Doctors
for Life International v Speaker of The National Assembly & Ors
2006 (6) SA 416 (CC), NCOBO
J
(as he then was), observed that a claimant who seeks under the South
African constitution to vindicate a constitutional right by impugning
the conduct of a state functionary must identify the functionary and
impugned conduct with reasonable precision.
To
plead one's case with precision is a rule of procedure that I
believe also applies with equal force to all applications brought
under section 167(2)(d).
I
shall revert to this point below.
The
special jurisdiction, not being inherent, cannot be invoked over all
persons and over all constitutional matters.
In
particular, it being a special vehicle to hold the other two organs
of state accountable, the exclusive jurisdiction of this Court cannot
be invoked to inquire into the conduct of other state agencies who
are not Parliament or the President.
For
these other actors, common law causes of action abound and the
jurisdiction of this Court over such matters is shared with the other
courts in the land as stated in passing above.
Put
differently, the only permissible respondents under an application in
terms of section 167(2)(d) are Parliament or the President.
Therefore,
and limiting myself to the facts of this matter, the special
jurisdiction cannot be invoked to determine whether the conduct of
the Speaker, for instance, was a failure to fulfil a constitutional
obligation.
On
the basis of the above, I wish to comment once again in passing that
it is impermissible to join another party as respondent to an
application brought under section 167(2)(d) as submitted and
suggested by counsel for the respondent.
Analysis
The
application as pleaded, seeks to impugn the conduct of the respondent
“through its Speaker”. In my view, such style of pleading, which
conflates the Speaker with the respondent, obfuscates the exact
conduct that the applicant seeks to impugn. It is not precise enough
for the purposes of the section. It fails to meet the requirements of
the law.
The
applicant specifically challenges the conduct by the Speaker as
exceeding the powers granted to him by the Standing Orders and at the
same time imputes such allegedly unlawful conduct to the respondent.
Therein
lies the first hurdle that this Court must overcome before its
jurisdiction can be triggered. Whose conduct is under its scrutiny?
Being
alive to the requirements of the cause of action under section
167(2)(d) as discussed above, counsel for the applicant argued that
the respondent expelled and suspended the applicant through its
Speaker.
But
did it?
It
is appropriate at this stage that I advert briefly to the facts
leading to the expulsion and suspension of the applicant, which facts
are largely common cause.
On
4 June 2020, the applicant allegedly behaved in a disorderly manner
during a sitting of the National Assembly that was presided over by
the Deputy Speaker.
On
20 June 2020, the Speaker, now in the Chair, and in his capacity as
Speaker, pronounced his ruling on the applicant's previous
behaviour. He thereafter ordered the applicant to withdraw his
unparliamentary language and to apologise to the House which the
applicant duly did.
Later
during the same sitting, the applicant allegedly again behaved in a
disorderly manner. The Speaker felt that the applicant was not
remorseful. He thereafter summarily suspended the applicant for six
consecutive sittings after which he ordered that the applicant be
removed from the House.
As
indicated above, counsel for the applicant did not seek to separate
the Speaker from the respondent. In his words during oral argument,
the Speaker and Parliament are inseparable; once the Speaker is in
the House, he becomes Parliament.
In
this regard, counsel relied on a passage from the authors Woolman and
Bishop, Constitutional Law in South Africa, Vol I 2nd
Ed at p17-3 where they write:
“The
NA (National Assembly) is chaired by the Speaker. The Speaker is the
representative and spokes-person of the Assembly in its collective
capacity. The Speaker may therefore give binding undertakings on
behalf of the NA.”
On
the basis of the above, counsel invited us to find that the conduct
of the Speaker in the circumstances of this matter binds the
respondent and amounts to a failure by the respondent to fulfil its
constitutional obligation to uphold the rule of law and full
compliance with its Standing orders.
Whilst
there is some undeniable cogency in the submission by applicant's
counsel, we must decline his invitation.
There
are instances where the juristic acts of the respondent are performed
through the agency of the Speaker, especially where the respondent is
transacting with third parties.
Such
instances include those referred to by the authors Wolman &
Bishop as cited above.
It
stands to reason that the respondent, being a body of legislators can
only act through its members, officials and duly appointed agents.
The
Speaker, being the head of Parliament, is naturally more often than
not the voice and limbs of the respondent. Thus quite conceivably,
the pronouncements and conduct of the Speaker or other functionary
can at law be regarded as the actions and conduct of the respondent
and will bind the respondent.
An
example of such an instance is readily afforded by the facts in the
matter Gonese
& Anor v Parliament of Zimbabwe & Ors (supra).
In
that case, the certification by the President of the Senate that a
two thirds majority had been attained on Constitution Amendment Bill
No.1 when in fact it had not been so achieved, was found by this
Court to amount to a failure on the part of the respondent to fulfil
a constitutional obligation concerning the process for amending the
Constitution.
However,
in this application, the actions of the Speaker cannot be imputed to
the respondent for the reasons that follow.
Firstly,
the Standing Orders under which the applicant was punished grant both
the Speaker and the respondent the power to oversee the exercise of
power, privileges and immunities in the House.
The
power given to the Speaker is independent of that given to the
respondent.
He
is granted a discretion on what penalty to impose on a member who
breaches parliamentary privileges. The level of punishment that he
can decide upon is however on a lower threshold to that of the
respondent.
For
more serious breaches of parliamentary etiquette meriting more severe
penalties, the Speaker must refer the matter to the House after
naming the member.
This
procedure is fully laid out in the respondent's Standing Orders and
it is common cause between the parties.
Also
common cause between the parties is the fact that this procedure was
never invoked in this matter.
The
matter of the applicant's breach of privileges was never referred
to the respondent.
The
applicant accepts that the Speaker has disciplinary powers over
Members of Parliament in terms of which he can order a member to
leave the House for a full day.
In
a moment of unintended levity, counsel for the applicant submitted
that this power is used quite often against Honourable Members. Such
power is not disputed.
Therefore,
the legitimacy of the action by the Speaker against the applicant
cannot be doubted.
If
it is accepted that the disciplinary power of the Speaker over
Members of Parliament is legitimate, which it must, then it cannot be
wished away into insignificance in his hands.
The
Speaker's power cannot be negated by imputing it to the respondent.
It remains conduct by the Speaker and must be given its full
recognition at law.
It
is in itself the wielding of administrative power and must be
independently subject to judicial control.
The
argument that the Speaker's such exercise of power is at law
conduct by the respondent is therefore untenable.
Secondly,
it stands to reason that where disciplinary authority is granted to
two functionaries, not concurrently but on escalating thresholds, the
exercise of the power by one cannot be imputed to the other in the
absence of clear provisions to that effect.
My
reading of the Standing Orders of the respondent do not show a basis
upon which I can infer that the exercise of the power to punish
Members of Parliament by the Speaker is to be regarded as conduct by
the respondent and not by the Speaker, using his own discretion in
the matter. Counsel did not direct our attention to any provision in
the Standing Orders from which such an inference can be drawn.
Finally,
there is no basis factually or legally for finding that the
respondent had any supervisory role over the Speaker in matters of
the discipline of Members of Parliament.
There
is thus no procedure by which the respondent could have ensured that
the Speaker fully complied with the Standing Orders and limited his
powers accordingly. The matter was never referred to the House for
resolution.
It
is therefore my finding on the facts of the matter that the conduct
complained of was that of the Speaker acting independently of the
respondent. Put differently, it is my finding that the conduct
complained of was not the conduct of the respondent and the
jurisdiction of this court is accordingly not triggered.
In
the hands of the Speaker, the decision to punish a Member of
Parliament under the Standing Orders hardly qualifies as a
constitutional obligation that would attract the attention of this
Court.
Quite
correctly, counsel did not so argue.
It
is therefore idle to discuss whether this Court would still have had
jurisdiction in the matter even if the conduct was correctly
attributed to the Speaker.
In
view of the finding that I make above, it is unnecessary that I
proceed to determine whether the exercise of disciplinary power by
the respondent in terms of its Standing Orders can amount to a
constitutional obligation for the purposes of section 167(2)(d) of
the Constitution.
This
application turns or rather falls on the fact that the respondent did
not act as alleged or at all.
Disposition
The
jurisdiction of this Court not having been triggered, the matter must
be struck off the roll. No justification appears for the court to
depart from the general position regarding the award of costs. None
was pressed on us by the respondent. Accordingly, in line with the
general position, no order as to costs shall be made.
In
the result, I make the following order:
1.
The matter is struck off the roll.
2.
There shall be no order as to costs.
MALABA
CJ: I
agree
GWAUNZA
DCJ: I
agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
Mafume
Law Chambers,
applicant's legal practitioners
Chihambakwe,
Mutizwa & Partners,
respondent's legal practitioners
