Opposed
Application
MANGOTA
J:
This
is an ordinary opposed application which the applicant turned into an
urgent one. He did so through a letter which he addressed to the
registrar of this court. The letter is dated 20 February 2018. It
reads, in part, as follows:
“2.
As you will be aware, the application among other things seeks
to challenge the constitutionality of the Presidential Powers
(Temporary Measures)
Act
[Chapter
10:20]
amended to Electoral Act Regulations 2016 published in Statutory
Instrument 117/2017.
3.
As you are aware of, the regulations we (sic) enacted on 15 September
2017 and therefore they will naturally expire by 15 March 2017.
4.
In order to avoid a situation where arguments will be academic on
aspects of the regulations, and given the fact that both parties have
filed heads of argument in this matter, we
seek that the matter be determined urgently.”
[emphasis added]
It
is evident, from the foregoing, that the applicant was rushing
against time. However, the application was, in my view, not urgent.
It was more of self-created urgency than it was urgent in the sense
which the rules of court contemplate.
The
regulations were published on 15 September 2017. The applicant did
not apply as he should have done shortly after the publication of the
regulations. He only filed his application some thirty-five (35) days
after the event. He filed it on 20 October 2017. He did not explain
the cause of the delay.
The
form which he employed showed that the application should not have
been enrolled on applications which fall under Rule 244 of the High
Court Rules, 1971. It did not have a certificate from a legal
practitioner. It did not give reasons for its urgency. It was filed
under Form 29 instead of under Form 29B of the rules of this court.
Urgency
was, therefore, created by the applicant himself. He suddenly became
aware of the date of the expiration of the regulations. He,
accordingly, requested the registrar to draw the court's attention
to his predicament and, in the process, he moved the court to hear
the application before the period of the expiration of the
regulations.
The
applicant used the regulations as his point of entry into the
substance of the application. The application has less business with
the regulations. It, in fact, has more business with the
constitutionality or otherwise of the Presidential Powers (Temporary
Measures) Act [Chapter
10.20].
Paragraph
2 of the applicant's letter of 20 February 2018 is relevant in the
mentioned regard.
He
states, in the same, that the application seeks to challenge the
constitutionality of the Presidential Powers (Temporary Measures)
Act, [Chapter
10:20].
This, in my view, is the thrust of the application.
The
applicant describes himself as a Zimbabwean scholar, businessman and
human rights activist. He says he has a direct interest in issues
which relate to the rule of law, constitutionalism, democracy and
Zimbabwe's electoral process.
I
mention in passing that human rights activism and constitutionalism
took root in Zimbabwe in the late 1980s and early 1990s. Many
non-governmental organisations sprouted through the length and
breadth of the country. Activists who fell into, and continue to
remain in, this very important field of work brought the government
of the day to account for its conduct in such areas as the due
observance of the rule of law, people's fundamental rights,
democracy and elections.
Persons
of the mind of the applicant remain a thorn in the eyes of
government.
They
made, and continue to make, it to remain on course. They criticized,
and continue to criticize, the conduct of Ministers of Government and
their Ministries. They, in short, remain a constant cause of concern
to the three pillars of the state: namely the executive, the
judiciary and the legislature. They worried, and continue to worry,
the politicians especially those whose functions fall under the
executive organ of the state.
Human
rights activists are, therefore, a sine
qua non
aspect any democratic order.
They
make every effort to point out, as well as speak against, such
deviant behaviour as corruption, inertia, unconstitutionalism and/or
the absence of democratic principles. Their continued existence in a
society is a most welcome development which governments the world
over are encouraged to embrace and not ignore.
When
such activists as the applicant request members of the executive to
jump, the ideal situation is that the latter should not question why
they are being asked to jump. The only question which they can, and
should, ask is how high they should jump. It is, therefore, in the
context of the above stated matters that this application would be
considered as well as determined.
The
applicant, it has already been stated, falls into the category of the
above described group of persons. He lays stiff criticism on the
continued existence of the Presidential Powers (Temporary Measures)
Act.
He
insists that the Act serves no meaningful purpose in an independent
and democratic Zimbabwe. He advocates the strengthening as well as
the observance of constitutional provisions which, he says, protect
and advance the people's fundamental rights and freedoms. He lays
emphasis on matters which relate to the rule of law, democracy,
constitutionalism and/or the doctrine of separation of powers amongst
the three pillars of the state.
The
thrust of the applicant's argument is that the Presidential Powers
(Temporary Measures) Act is ultra
vires
the
Constitution of Zimbabwe.
He
submits that the President has abused the Act as and when he pleased.
The
Act, he argues, allows the President to make law by decree as opposed
to having the same made by Parliament which, in terms of the
constitution, is the law–making authority in Zimbabwe.
He
insists that the Act must be struck off the country's statute books
because its provisions are not consistent with those of the
Constitution of Zimbabwe.
The
application which is before me is unique.
It
is unique in the sense that it is the first of its kind to test the
constitutionality or otherwise of the Presidential Powers (Temporary
Measures) Act after the coming into existence of the Constitution of
Zimbabwe Amendment [No.20] Act of 2013.
The
Presidential Powers (Temporary Measures) Act was promulgated in 1986.
It survived all applications, and they were many, of the present
nature. It did so largely because of some provision of the 1979
constitution which provision ensured its continued existence in the
country's statute books. That provision, it was argued, does not
exist in the new constitution which replaced the old one.
It
follows, from the foregoing, that case authorities which dealt with
the continued existence or otherwise of the Act will not be of much
assistance towards the determination of this application. The
decisions were, no doubt, anchored upon the provision which ensured
the retention of the Act.
The
current application will, in the result, be decided on what, in my
view, is the correct interpretation of the new constitutional
provisions. It will be decided on the basis of provisions which
define the role and functions of such state actors as the President,
Parliament and the Judiciary of an independent and democratic society
such as the one in which we live.
I
have already stated, in some part of this judgment, that the
applicant used the Presidential Powers (Temporary Measures) Amendment
of Electoral Act Regulations, Statutory Instrument 117/2017, as his
point of entry into the application.
He
criticizes the regulations which the President published on 15
September 2017. He says these are null, void and of no force or
effect.
He
submits that only Parliament can make law in Zimbabwe. He insists
that the President cannot do so.
He
criticizes section 2(2) of the Act which he says purports to give to
the President power to change, or over-ride, an Act of Parliament.
He
states that the President's conduct of publicizing the regulations
is ultra
vires
the
Act. He, therefore, moved the court to declare:
(a)
the Presidential Powers (Temporary Measures) Act to be ultra
vires
the Constitution of Zimbabwe; or alternatively
(b)
section 2(2) of the Act a nullity; and
(c)
the President's actions of publishing the regulations to be ultra
vires
the Act.
He,
in short, moved the court to make the declarations and set aside the
Act as well as the regulations which flow from the same.
The
respondent is the President of the Republic of Zimbabwe. He opposes
the application.
He
states that the regulations which he published were necessitated by
the biometric voter registration exercise which the country adopted
in preparation for the July/August 2018 election. He says everyone
who was on the old voters roll was expected to register through the
newly adopted voter registration system.
He
avers that he did not act outside the law.
Section
2(2) of the Act, he says, confers authority upon him to publish the
regulations as he did.
He
submits that he did not go beyond the powers which the Constitution
of Zimbabwe confers upon him. He drew my attention to his executive
functions which are contained in section 110(1) of the Constitution.
He
denies that his conduct in publishing the regulations violated the
Act or the Constitution.
He
submits that, under the common law, he has always enjoyed prerogative
powers which allowed him to make temporary legislation in urgent
situations. He states that the current constitution did not abolish
his prerogative powers.
He
insists that the Act conferred power on him to make law in the
general public interest. He avers that the Act recognizes
Parliament's law-making function. He denies that the Act confers
sweeping powers upon him.
He
moved the court to dismiss the application with costs.
The
application was well-researched, well-argued as well as presented.
It
drew my attention to a number of important case authorities which, in
a large measure, addressed the concerns of the applicant.
It
cited six cases of the South African Constitutional Court, four case
authorities from the courts of the United States of America, four
cases which the Privy Council decided and two case authorities which
the Supreme Court of India decided, among others.
The
cited cases brought to the fore such pertinent matters as the
supremacy of a country's constitution, the doctrine of separation
of powers, rule of law and issues which pertain to procedural and/or
substantive legality by such state actors as the respondent in
casu.
The cases were, no doubt, rich, informative, thoroughly persuasive as
well as educative.
That
having have been said, sight must not, however, be lost of the fact
that each case to which the applicant drew my attention was decided
in context. The decision was not plucked from thin air and placed on
paper. It was based on the country's constitution and other pieces
of legislation which were relevant to the case. The court was, in
each case, interpreting the law as it existed in its jurisdiction as
measured against the facts of the matter which was then before it.
I
mention, at this stage, that the facts of the cases to which the
applicant drew my attention remain unknown to me. I also state that
the constitutions and other pieces of legislation which influenced
the decision of the court in each cited case were not availed to me.
My attention was only drawn to the important dicta
which the courts pronounced in each case.
The
above stated matters make it hard, if not impossible, for me to go
along with the decided case authorities. That is so notwithstanding
their persuasive value. I cannot, in other words, conclude that what
the court in America, or India or South Africa pronounced should
apply to the case which is before me.
Judicial
work does not work in a vacuum. It operates upon a set of rules chief
among which is a country's constitution and any legislation which
is relevant to a case which is being decided. It interprets the law
as it exists in a country's constitution and other law. It
interprets those against a certain set of stated matters.
The
current application will, therefore, be decided in the context of the
Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with
the Presidential Powers (Temporary Measures) Act [Chapter 10:20]
[“the Act”] and matters which relate to the two pieces of
legislation. Amongst such matters is the birth of a new voters roll
which the President made mention of in his opposition to the
application.
The
President made law when he published the 2017 regulations. He rested
his law-making conduct on section 2 of the Act. The section allows
him to make law, albeit of a temporary nature, in certain
circumstances of urgency.
The
section reads, in the relevant portion, as follows:
“2.
Making of urgent regulations
(1)
When it appears to the President that:
(a)
A situation has arisen or is likely to arise which needs to be dealt
with urgently in the interests of defence, public safety, public
order, public morality, public health, the economic interests of
Zimbabwe or the general public interest; and
(b)
The situation cannot adequately be dealt with in terms of any other
law; and
(c)
Because of the urgency, it is inexpedient to await the passage
through Parliament of an Act dealing with the situation; then subject
to this Constitution and this Act, the President may make such
regulations as he considers will deal with the situation.”
It
is evident, from the above-cited portion of the section, that the
President's discretion to make regulations is only exercisable by
him in the interests of the people of Zimbabwe as a whole. He does
not exercise the discretion in the interests of a section of the
population of the country. The use of the word public
which appears in the various facets for which the discretion is
exercised says it all.
The
President did not publish the regulations for the fun of it.
He
did not, as the applicant alleges, make an effort to abuse the law
making function which the Act confers upon him. He states, and
correctly so, that the advent of the biometric voter registration
exercise which Zimbabwe contemplated to put into place made it
necessary for him to act as he did.
His
contention, with which l agree, was that the advent of a new voters
roll could not properly be covered by a law which Parliament would
have introduced, debated and passed into law without interfering with
the times-lines of the forthcoming 2018 harmonised election. It was,
according to him, out of necessity and urgency that he published the
regulations.
He
insists, and l agree, that the preparation of the new voters roll as
measured against the July/ August, 2018 election was not an event but
process.
The
background of the matter which relates to the publication of the
regulations is relevant. I take judicial notice of the fact that, for
a considerable length of time in the past, the people of Zimbabwe
urged Government to:
(i)
do away with the old voters roll which they said contained a lot of
inconsistencies as well as unnecessary features;
(ii)
replace it with a new voters roll which was more credible than the
old one. A voters roll which was credible in terms of voter
population, its density in a particular area and detail;
(iii)
remove the voters roll from the office of the Registrar-General and
place it within the domain of the Zimbabwe Electoral Commission.
It
is my view that the applicant and others of a like mind were at the
forefront of the stated matter. He made a statement to an equal
effect in his founding affidavit. He and other human rights activists
urged and encouraged Government to address their abovementioned
concerns. They insisted that its attention to the same would render
the forthcoming July/August 2018 election more credible than
otherwise.
The
President, as Head of State and Government, heeded the call of the
people of Zimbabwe. He remained alive to the fact that whatever was
to be achieved in response to the people's concerns was to be
supported by some law. He, therefore, published the regulations
which, in his view, would take the place of the law which Parliament
was constrained to make within the time which preceded the election.
That
the President complied with the procedural legality of the Act
requires little, if any, debate. He, as the applicant stated,
published the regulations. He published them on 15 September, 2017.
He did so after he had notified the people of Zimbabwe of his
intention to publish the same. He, in the mentioned regard, made
substantial compliance with section 3 of the Act.
It
cannot, in view of the above stated matter, be suggested that the
President's conduct in publishing the regulations was ultra
vires
the Act. He published them in terms of an existing law. The law
conferred upon him the power to act as he did. He followed the
procedural aspects of that law to the letter and spirit.
His
conduct was above reproach. It was, and it remains, valid.
I
have already stated, in the foregoing portions of this judgment, that
the regulations are not the subject of this application. The subject,
from the perspective of the applicant, is the Act itself.
If
the regulations were the issue, the applicant would have invoked
section 3(1)(b) of the Act as read with subsection (2) of the same.
He would, in other words, have objected to the publication of the
regulations when the President made his intention known to him and
others through Government Gazette Extraordinary, Volume XCV No. 61.
The
fact that the applicant did not object to the publication of the
regulations at the time that the President's intention appeared in
the gazette shows his real intention. The intention is that he wanted
to use the regulations, after they had been published, as his entry
point into criticizing the substance of the Act. The observed matter,
therefore, takes the discourse to the substantive legality or
otherwise of the Act.
Whether
or not the Act is substantively legal depends on the provisions, if
any, of the constitution which relate to it. This, in a nutshell,
refers to the constitutionality or otherwise of the Act.
The
question which we should ask and answer centres on whether or not the
law-making function of the President as conferred upon him by the Act
violates the Constitution of Zimbabwe.
The
same question, put differently, would read: did Parliament act within
or without the Constitution when it conferred some of its law-making
function in the Act to the President.
Succinctly
and boldly stated, the same question reads: Is the Act in compliance
with the Constitution of Zimbabwe (No.20) Act of 2013 (“the
Constitution”).
The
legislative authority of Zimbabwe is reposed in the Legislature. This
comprises Parliament and the President acting in accordance with this
Chapter.
Sections
116, 117 and subsections (2), (3), 5(a), 6(a) and (b), 7(a), 8(a) and
(b), (9) and (10) of section 131 of the Constitution of Zimbabwe
spell out the complimentary roles which Parliament and the President
play in Zimbabwe's law-making process. They check and balance each
other's work. The one cannot make law without the input of the
other and vice-verse.
The
fact that the President can, in terms of section 131(8)(b) as read
with subsection (9) of the section, refer a Bill to the
Constitutional Court for advice on its constitutionality shows that
the judiciary is, to some extent, involved in the law-making process.
It ensures that all bills which Parliament and the President pass
into law must comply with the Constitution of Zimbabwe.
The
checks and balances which exist in section 131 of the Constitution
also exist in section 4 of the Act.
The
President does not, therefore, have sweeping powers as the applicant
alleges.
The
regulations which he makes are, as of necessity, subject to
Parliamentary review and/or scrutiny. It is within the domain of
Parliament to resolve that any regulations which have been laid
before it be either amended or even repealed. Once such a resolution
has been made, the President has no option but to comply with
resolution of Parliament.
It
follows from the foregoing, therefore, that complete separation of
powers of the three organs of the State – i.e the Executive, the
Legislature and the Judiciary – is a myth. It is not achievable in
the context of the Constitution of Zimbabwe.
I,
in the mentioned regard, associate myself fully with the views which
the Constitutional Court of South Africa was pleased to express in Ex
parte
Chairperson of the Constitutional Assembly: In Re: Certification of
the Constitution of the Republic of South
Africa,
1996
(4) SA 744. It stated at p810 as follows:
“There
is, however, no universal model of separation of powers and, in
democratic systems of government in which checks and balances result
in the imposition of restraints by one branch of government upon
another, there is no separation that is absolute……..
The
principle of separation of powers, on the one hand, recognizes the
functional independence of branches of government. On the other hand,
the principle of checks and balances focuses on the desirability of
ensuring that the constitutional order, as a totality, prevents the
branches of government from usurping power from one another. In this
sense, it
anticipates the necessary and unavoidable intrusion of one branch
into the terrain of another.
No constitutional scheme can
reflect a complete
separation of powers: The scheme is always one of partial
separation.” (emphasis added).
The
President's necessary and unavoidable intrusion into the function
of Parliament is evident from a reading of section 86 of the
Constitution. The section deals with the limitation of the people of
Zimbabwe's fundamental rights and freedoms. It reads, in part, as
follows:
“86
Limitation of rights and freedoms
(1)
The fundamental rights and freedoms set out in this chapter must be
exercised reasonably and with due regard for the rights and freedoms
of other persons.
(2)
The fundamental rights and freedoms set out in this chapter may be
limited only in
terms of a law of general application
and to the extent that the limitation is fair, reasonable, necessary
and justifiable
in a democratic society based on openness, justice, human dignity,
equality and freedom, taking into account all relevant factors,
including -
(a)…….;
(b)
the
purpose of the limitation,
in particular whether it is necessary in the interests of defence,
public safety, public order, public morality, public health, regional
or town, planning or the general public interest….,” (emphasis
added).
The
question which begs the answer is who/which authority has the power
to limit the people of Zimbabwe's fundamental rights and freedoms
when any of the matters which are stated in section 86(2)(b) of the
Constitution has arisen or is about to occur.
The
applicant does not mention the person or authority who/which, in
terms of a law of general application, can limit the people's
rights and freedoms. The limitation, no doubt, has far-reaching
consequences. It relates to matters which, if left unattended,
adversely affect a considerable portion of Zimbabwe's population,
if not the people of Zimbabwe as a whole.
The
President says the Act and the Constitution confers upon him that
power to deal with any of the matters which are stated in section
86(2)(b) of the Constitution when such have arisen or are about to
occur.
He
states, in
casu,
that it was in the interest of the general public of Zimbabwe that he
made the regulations.
That
the general public interest was real as opposed to having been
fanciful requires no debate. That was so given the people's outcry
for a new voters roll which had to replace the old one with which
they were not satisfied.
Parliament
could not make law within the time which remained to deal with the
situation which was then at hand. Whatever process which pertained to
the introduction into the country of a new voters roll required some
law to be in place before it could be embarked upon.
The
President, therefore, made that law in line with his law-making
function as was provided for in the Act and the Constitution.
The
verbatim
repetition of section 86(2)(b) of the Constitution in section 2(1)(a)
of the Act confirms the constitution's recognition of the Act.
The
stated matter confirms further that it is only the President who has
the power to limit, through the Act, the people of Zimbabwe's
fundamental rights and freedoms which are contained in the
Constitution. Those can be limited when certain undesirable
occurrences have arisen or are about to arise. The President limits
them in the interests of Zimbabwe's public good.
The
drafters of the Constitution were, in my view, alive to the existence
of the Act.
They
crafted section 134 of the Constitution to confer power on Ministers
of Government and such statutory bodies as the Zimbabwe Electrical
Commission to make subsidiary legislation. They state, in the
section, that the legislation which these make should not go outside
the enabling Act which establishes their law-making function.
Because
the President's law-making power exists in the Act, the drafters of
the Constitution did not include it in section 134 of the
Constitution.
Because
his powers as stated in section 86(2)(b) of the Constitution relate
to limitation of the people of Zimbabwe's fundamental rights and
freedoms in certain unforeseen circumstances, he could not
effectively exercise the same under section 134 of the Constitution.
Paragraphs
(b), (c) and (d) of the section would have disenabled him from
effectively dealing with situations of disastrous consequences which
he has to address in his capacity of Head of State and Government
when such arise.
It
was for the mentioned reasons, if for no other, that the Act
conferred upon him power to deal with any situation which, in his
view, would work against Zimbabwe's public interest in an adverse
manner.
Section
5 of the Act accords to him the leeway to deal with the situation
which would have arisen or is about to occur in a very effective as
well as conclusive manner. It allows him to over-ride an Act of
Parliament where such is necessary in the interests of the public
good of Zimbabwe.
It
makes little, if any, sense for the applicant to suggest that
Ministers whom the President appoints into cabinet can make
subsidiary legislations under section 134 of the Constitution and the
appointing authority himself cannot.
The
applicant's reading of section 134 of the Constitution is
misplaced.
He
overlooks the fact that its application relates to the making of law
by Ministers of Government and statutory bodies. He remains oblivious
to the fact that the President's law-making function is not covered
under the section but under the Act and the Constitution.
The
President states, and I agree, that section 110(1) of the
Constitution confers upon him the power to make law. It reads:
“(1)
The President has the powers conferred by this Constitution and by
any Act of Parliament or other law including
those necessary to exercise the functions of Head of State.”[emphasis
added]
It
is his status, as Head of State and Government, which allows him to
limit the people of Zimbabwe's fundamental rights and freedoms when
a need to do so arises or is about to occur. He will be complying
with his duties as the President of Zimbabwe in the mentioned regard.
He
will be, as is stated in section 90(2)(a) of the Constitution,
promoting unity and peace for the benefit and well-being of the
people of Zimbabwe.
It
is evident, from the foregoing, that:
(a)
the conduct of the President was not ultra
vires
the Act;
(b)
the regulations which he published were procedurally and
substantively compliant with the law under which they were made; and
(c)
the Act is not ultra-vires
the Constitution of Zimbabwe.
The
applicant, in my view, confused the President's ordinary law-making
function as it is stated in Chapter
6
of the Constitution with his law-making function as it exists in the
Act as read with sections 86 and 110 of the Constitution.
He
sought to do away with the President's law-making power as it is
contained in the Act. The Act, it has already been observed, is in
complete harmony with the Constitution.
The
application constituted an interesting exercise of the mind. It was
more academic than it was real. It was devoid of merit. It cannot,
therefore, stand.
The
applicant did not prove his case on a balance of probabilities. The
application is, accordingly, dismissed with costs.
Tendai
Biti HMB Chambers,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
respondent's legal practitioners
