This
is an application brought in terms of section 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 to be null and void on account of
it being inconsistent with sections 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:
(i)
The first is whether the applicant has locus standi to bring
this application. Allied to this issue is the question whether, as a
Cabinet Minister, the applicant can institute proceedings against another arm
of the State.
(ii)
The second is whether a private member can lawfully introduce a Bill in
Parliament.
