GARWE JA:
This is an application brought in terms of s 24(1) of the Constitution of
Zimbabwe in which the applicant seeks an order declaring the introduction of
the Urban Councils Amendment Bill H.B.5. 2011 (“the Bill”) to be null and void
on account of it being inconsistent with ss 18, 18(1a) and Article 20.1.2.
of the 8th Schedule of the Constitution of Zimbabwe.
BACKGROUND
In October 2011, the fifth and sixth respondents, who are members of Parliament
for the Buhera Central and Highfield West Constituencies respectively, brought
a motion in Parliament to introduce a private members' Bill. Thereafter
debate ensued in Parliament on the motion. The motion was accepted and
consequent thereto the Bill was introduced into Parliament in early 2012.
It is not in dispute that the purpose of the Bill was to reduce the powers of
the Minister of Local Government over municipal and town Councils. In
March 2012 the applicant wrote to the second and third respondents expressing
his view that it was incompetent for private members to introduce the Bill and
that the responsibility to do so now lay with Cabinet. The fourth
respondent wrote back expressing the view that it was still permissible for a
Member of Parliament to introduce a private Bill and that such responsibility
was not solely the responsibility of Cabinet. He further advised that
Parliament was to continue with the necessary procedures for debating the Bill,
prompting the applicant to make the present application.
THE BASIS OF THE APPLICATION
In his papers the applicant says he brings this application in his capacity as
a citizen of Zimbabwe, a duly elected member of Parliament and a Cabinet
Minister of the Government of Zimbabwe. He also submits that regard being
had to the provisions of Schedule 8 of the Constitution it is legally improper
for a private member to introduce a Bill in Parliament and that only Cabinet
can do so. In particular he argues that since the right of the individual
member of Parliament conflicts with the responsibility of Cabinet to present
legislation to Parliament, the provisions of Article 8 must, as a corollary,
take precedence.
THE RESPONDENTS' POSITION
The respondents on the other hand argue that since the applicant has brought
this application in his capacity as a Cabinet Minister and member of
Parliament, no rights that relate to him personally have been infringed.
Consequently he has no locus standi to bring the present
application. The respondents also submit that the relevant Constitutional
provisions have not curtailed the rights of members to introduce private bills
save “where policies and programmes of the National Executive are
concerned”. Lastly the respondents have submitted that the applicant,
being a Minister and therefore part of the State, cannot sue Parliament which
is also another arm of the State.
ISSUES FOR DETERMINATION
On a careful reading of the papers before this Court, it seems to me that there
are two issues for determination. The first is whether the applicant has locus
standi to bring this application. Allied to this issue is the
question whether as Cabinet Minister the applicant can institute proceedings
against another arm of the State. The second is whether a private member
can lawfully introduce a Bill in Parliament.
LOCUS STANDI
In his
application, the applicant makes it clear that he brings the application in his
capacity as a Cabinet Minister, Member of Parliament and citizen of
Zimbabwe. As a Cabinet Minister, he does so in his capacity as Minister
of Local Government, Rural and Urban Development and not on behalf of
Cabinet. This is not a case therefore where Cabinet is suing Parliament
but rather one where a Minister is suing in his capacity as such.
That an applicant approaching this Court in terms of
s 24(1) of the Constitution must show that his individual right or rights have
been infringed or put another way that there has been a contravention of the
Declaration of Rights in relation to himself is now settled. He has no
right to seek redress on behalf of the general public or anyone else – in this regard
attention is drawn to the decisions of this Court in United Parties v
Minister of Justice, Legal & Parliamentary Affairs & Ors 1997(2)
ZLR 254(S), 2 B-C,; Capital Radio (Pvt) Ltd v Broadcasting Authority of
Zimbabwe & Ors 2003(2) ZLR 236(S), 276B-C; Retrofit (Pvt) Ltd v
PTC & Anor 1995 (2) ZLR 199(S), 207G-H; Law Society of Zimbabwe v
Minister of Justice & Anor 2006(2) ZLR 19(S) 30H-31A.
In this case the applicant is the Minister of Local
Government, Rural and Urban Development. In this capacity he is assigned
the responsibility of administering various pieces of legislation that govern
the activities of local government institutions. In particular he is
charged with the responsibility of administering the Urban Councils Act, [Cap 29:15].
The rationale for the introduction of the Bill is stated in the memorandum to
the Bill as the need to reduce the powers of central government over municipal
and town councils. Municipal and town councils are local government
institutions that fall under the aegis of the Ministry of which the applicant
is Minister and are accountable to the Minister for the way in which they carry
out their activities. The Minister exercises considerable powers under
the Act that enables him to control the management of these institutions.
The stated intention to reduce the powers of central government suggests that
the real intention was to reduce the powers of the applicant as Minister of
Local Government, Rural and Urban Development over municipal and town Councils.
In my view the applicant clearly has an interest in
this matter as it is his powers as Minister which the Bill intended to
proscribe. In a case, such as the present, where it is suggested that the
process of introducing the Bill that seeks to reduce such powers is unconstitutional,
the applicant would certainly be entitled to the protection of the law.
He would be entitled to approach this Court and demand that the respondents act
in accordance with the law. I conclude therefore that in his capacity as
Minister of Local Government, Rural and Urban Development, the applicant has
the same rights as everyone else where his fundamental rights are violated and
consequently has the locus standi to approach this Court under s 24
(1) of the Constitution. It follows from this that in an appropriate case
a Cabinet Minister can have locus standi to sue another arm of the
State.
Whether the applicant would have locus standi to
sue in his other capacities as Member of Parliament and citizen of Zimbabwe is
an issue that becomes unnecessary to decide in view of the conclusion that I
have reached above.
WHETHER A PRIVATE MEMBER CAN LAWFULLY
INTRODUCE A BILL IN PARLIAMENT
The real issue before this Court is whether or not a private member can
lawfully move a private Bill in Parliament. To answer this question one
must of necessity construe the intention of Parliament from the words used in
both Schedule 4 and Schedule 8 of the Constitution.
Section 1 of Schedule 4 of the Constitution provides for the introduction of
Bills, motions and petitions into Parliament. Section 1 states, in
relevant part, as follows:
“1 Introduction of Bills, motions and petitions
(1)
...
(2)
...
(3)
Subject to the provisions of this Constitution and Standing Orders –
(a)
....
(b)
Any member of the House of Assembly may introduce any Bill into or move any
motion for debate in or present any petition to the House of Assembly;
(c)
A Vice President, Minister or Deputy Minister may introduce any Bill into or
move any motion for debate in or present any petition to Parliament.
(4)
Except on the recommendation of a Vice President, Minister or Deputy Minister,
Parliament shall not –
(a)
Proceed upon any Bill, including any amendment to a Bill, which, in the opinion
of the President of the Senate or the Speaker, as the case may be, makes
provision for any of the following matters–
(i)
Imposing or increasing any tax;
(ii)
Imposing or increasing any charge on the Consolidated Revenue Fund or other
public funds of the State or varying any such charge otherwise than by reducing
it;
(iii)
Compounding or remitting any debt due to the State or condoning any failure to
collect taxes;
(iv)
Authorizing the making or raising of any loan by the State;
(v)
Condoning unauthorized expenditure;
(b)
Proceed upon any motion, including any amendment to a motion, the effect of
which, in the opinion of the President of the Senate or the Speaker, as the
case may be, is that provision should be made for any of the matters specified
in subparagraph (a); or
(c)
Receive any petition which, in the opinion of the President of the Senate or
Speaker, as the case may be, requests that provisions be made for any of the matters
specified in subparagraph (a).
(5)
The provisions of subparagraph (4) shall not apply to any Bill introduced,
motion or amendment moved or petition presented by a Vice President, Minister
or Deputy Minister.”
The above provisions are clear and allow of no
ambiguity. Any Member of Parliament is at liberty to introduce a Bill
into Parliament. Where, however, the proposed Bill by a member makes
provision for the introduction or increase of any tax or charge on the
Consolidated Revenue Fund or other public funds, or where the Bill makes
provision for the compounding or remitting of any debt due to the State, or
condoning any failure to collect taxes, or the raising of any loan by the State
or condoning unauthorised expenditure, Parliament shall not introduce a debate
on such a Bill, except on the recommendation of a Vice President, Minister or
Deputy Minister.
In the light of the above provisions, the clear
intention must have been to proscribe the right of members to introduce a
private Bill that carries financial implications except where such Bill is
supported by the Executive.
That this has been the legal position in our law is
clear. However the situation changed with the introduction in 2009 of
Schedule 8 of the Constitution which incorporated the Interparty Political
Agreement between ZANU (PF) and the two MDC formations.
Schedule 8 provides in Article 1 as follows:
“
Framework for a New Government
1 For the avoidance of doubt, the following provisions of
the Interparty Political Agreement, being Article XX thereof, shall, during
the subsistence of the Interparty Political Agreement, prevail notwithstanding
anything to the contrary in this Constitution –
“20. Framework for a new Government
Acknowledging ...
20.1. The parties hereby agree that:
20.1.1 Executive Powers and Authority
...
20.1.2 The Cabinet
(a) shall have the
responsibility to evaluate and adopt all government policies and the
consequential programme;
(b) shall, subject to approval by
Parliament, allocate the financial resources for the implementation of such
policies and programmes;
(c)
shall have the responsibility to prepare and present to Parliament, all such
legislation and other instruments as may be necessary to implement the policies
and programmes of the National Executive;
(d)
...
(e)
...
(f) ...
(g)
...”
The above provisions clearly indicate the intention of
Parliament. That intention is that during the subsistence of the
Interparty Political Agreement, Article XX of that agreement shall prevail
notwithstanding anything to the contrary in the Constitution. The
intention must have been to ensure that for the duration of the Inter-Party
Political Agreement, what is contained in Article XX of the agreement would
override any provisions in the Constitution inconsistent with it.
In clause 20.1.2 of Article XX Cabinet has
specifically been given the responsibility (a) to evaluate and adopt all
government policies and consequential programmes (b) to allocate the financial
resources necessary for the implementation of such policies and programmes and,
most importantly (c) to prepare and present to Parliament all such legislation
and other instruments as may be necessary to implement such policies and
programmes.
The issue before this Court is one of
interpretation. As stated by CHIDYAUSIKU CJ in Capital Radio (Pvt)
Ltd v Broadcasting Authority of Zimbabwe 2003(2) ZLR 236(S), 246E-F:
“It is trite that in interpreting statutes including the
Constitution, the golden rule is that in order to ascertain the intention of
the legislature, the words of a statute or legislation are to be given their
ordinary or primary meaning. It is only where that primary meaning of the
words is obscure or leads to absurdity that other principles of interpretation
are invoked to assist in the ascertainment of the intention of the
legislature.”
The wording of clause 20.1.2. is clear. It is Cabinet
that has the responsibility to formulate all government policies and programmes
and to fund such programmes. It is Cabinet that has the responsibility to
prepare and present to Parliament legislation, including subordinate, as may be
necessary, to implement such policies and government.
Whilst I am prepared to accept that the drafting of
the Interparty Political Agreement could have been refined and the agreement
itself more elegantly worded, particularly when it was decided to incorporate
it into the Constitution, it is clear that the use of the word “responsibility”
was intended to give the power of formulating government policies and
programmes and the necessary legislation only to Cabinet. The
suggestion made during oral submissions that the “responsibility” is shared is
certainly not borne out by the wording.
In the result, I find that, where government policies and
programmes are concerned, the formulation and presentation of Bills is the
responsibility of Cabinet and no-one else. Indeed Mr Chihambakwe
has conceded as much. In para. 3.2 of his heads he has stated that:
“... where policies and programmes of the National
Executive are concerned, the Cabinet has the responsibility to prepare and
present to Parliament such legislation and other instrument.”
I would agree with the submission by Mr Hussein
that what was intended was to get legislation thrashed out and agreed to at
Cabinet level and the polished product presented by a Cabinet member in
Parliament. I also agree with his submission that since the country was
going through a transitional period which was to be steered by three political
groupings, the intention was that private members would not be permitted to
upset the inclusivity of decisions. I would only qualify these remarks by
emphasising that the prohibition is restricted only to proposed legislation that
deals with government policies and programmes. The corollary to this
therefore is that whilst a private member has no right to introduce a private
Bill that deals with government policies and programmes during the subsistence
of the Inter-Party Political Agreement, he is however still empowered to do so
in two situations. The first is where he introduces a Bill that does not
deal with such policies or programmes. The second is where the Bill that
he seeks to introduce, in addition to the requirement that it must not deal
with government policies and programmes, deals with issues of a financial
nature that are covered by s 1 (4) of Schedule 4 of the Constitution and is
supported by a Vice President, Minister or Deputy Minister. It is
not correct therefore that a private member's right to introduce private bills
has been removed completely. It has only been restricted to the extent
just shown.
What remains to be considered is whether the Urban Councils
Amendment Bill is one that the fifth and sixth respondents could competently
introduce into Parliament. To answer this question one must look at the
purpose of the Bill. The explanatory notes to the Bill indicate the
purpose is to:
“Amend the Urban Councils Act [Cap. 29:15] by
reducing powers of central government over municipal and town councils, thereby
encouraging democracy at local level...”
Clearly the purpose of the Bill is to reduce the
powers of the applicant as Minister of Local Government, Rural and Urban
Development. That the Bill intends to amend current government policies
is not in dispute. That being the position, there can be no doubt that
the respondents had no right in law to allow the introduction and debate of
this Bill. The introduction and subsequent debate was therefore unlawful
as it was prohibited by the Constitution.
DISPOSITION
The position is now settled that Parliament can only
do what is authorised by law and specifically by the Constitution – Biti
& Anor v Minister of Justice, Legal & Parliamentary Affairs & Anor
2002 (1) ZLR 177 (S) at 192F-G and 193C. In terms of s 18(1a) of the
Constitution, the second, third and fourth respondents have a duty to exercise
their functions in accordance with the law and to observe and uphold the rule
of law. Where they act contrary to the law, as they did in this case,
then their conduct becomes illegal.
In his draft order the applicant seeks an order
declaring the introduction of the Bill to be null and void. The applicant
also seeks an order of costs. I see no reason why both cannot be granted.
In the result therefore I make the following order:
1. The introduction of the
Urban Councils Amendment Bill HB.5.2011 before either House of the first
respondent is declared to be inconsistent with the provisions of ss 18(1)
and 18 (1a) of the Constitution in that it is ultra vires clause
20.1.2. of the 8th Schedule of the Constitution of Zimbabwe and
therefore null and void.
2. The respondents shall pay
the costs of this application jointly and severally, the one paying, the others
to be absolved.
CHIDYAUSIKU CJ: I agree
ZIYAMBI
JA:
I agree
GOWORA
JA:
I agree
OMERJEE
AJA:
I agree
Hussein Ranchod & Co., appellant's legal
practitioners
Chihambakwe, Mutizwa & Partners,
respondents' legal practitioners
