At the end of proceedings in this matter, by unanimous decision, the Court issued an order as follows:
“1. It is declared that in respect of S.I.144 of 2022, which was published in the Gazette dated 19 August 2022, the respondent failed to fulfil its constitutional obligation under section 152 of the Constitution.
2. The respondent is ordered to comply with its constitutional obligation under section 152 of the Constitution by not later than close of business on the 16th of June 2023.
3. There shall be no order as to costs.
4. Reasons for this order are to follow in due course.”
The following are the reasons for the order handed down by the full bench of this Court.
The Background
The applicant is the President of a political party known as the Nationalists Alliance Party and is a member of the Political Actors Dialogue (“the POLAD”). He stood for election to the office of President during the 2018 harmonised elections.
The respondent is the Parliament of Zimbabwe, the constitutional organ reposed with primary law-making authority in Zimbabwe.
The petition before this Court is centred around the allegation, that, the respondent failed to fulfil its purported constitutional obligation of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravened any provision of the Constitution.
More specifically, this contention relates to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), Statutory Instrument 144 of 2022 (S.I.144/22), which was published in the Gazette dated 19 August 2022.
The impugned statutory instrument was published by the Zimbabwe Electoral Commission (hereinafter “ZEC”) on the aforesaid date.
It increased the nomination fee for aspiring presidential candidates in the imminent 2023 general elections and beyond, from US$1,000 to US$20,000. Similarly, the nomination fee for aspiring candidates for National Assembly and Senate elections was increased from US$50 to US$1,000.
It is these hefty and apparently prohibitive hikes, and, in particular, the perceived procedural irregularities that followed the promulgation of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022 that drew the ire of the applicant.
In his founding papers before this Court, the applicant averred, that, as an ordinary citizen with aspirations to run for election as President, he would not be able to afford the US$20,000 nomination fee. He added that none of the members of his political party would be able to afford US$1,000 to run for public office as Members of Parliament.
Against this background, the applicant sought an order declaring that Parliament failed to fulfil its constitutional obligation in terms of section 152(3)(c) of the Constitution.
It was contended, that, the respondent had an immutable obligation to examine every statutory instrument published in the Gazette and consider whether any provision of the statutory instrument contravened any provision of the Constitution.
The applicant alleged, that, the respondent had failed to discharge this obligation in respect of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144 of 2022.
He based his standing on the belief that every citizen of Zimbabwe has automatic standing to challenge any failure by an institution of the State to fulfil a constitutional obligation.
It was the applicant's view, that, the use of the words 'examine' and 'consider' in the cited constitutional provision required the respondent to take a serious view of the imperative to protect the supreme law of the land.
In this regard, it was contended that the respondent failed to fulfil its obligation in that it did not treat the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22 in accordance with the provisions of section 152(3)(c) of the Constitution, following which it should have produced a report on the constitutionality of the statutory instrument.
Alternatively, it was argued that the fact that the respondent did not find that the statutory instrument infringed the rights of citizens provided for and protected by section 67 of the Constitution was evidence of a failure to “examine” or “consider” the impugned Regulations within the contemplation of section 152(3) of the Constitution.
The appellant took aim at the respondent's perceived “lackadaisical” approach to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22, which conduct was alleged to have failed to meet the requirement to 'examine' and “consider” within the meaning of section 152(3)(c) of the Constitution.
The applicant averred, that, no reasonable Parliament acting in compliance with the mandatory obligation under section 152(3)(c) of the Constitution would have failed to consider that the Regulations in the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1),Statutory Instrument 144/22 were patently unconstitutional for infringing the electoral and civil rights of citizens under section 67 of the Constitution.
From the applicant's perspective, had the respondent performed its constitutional obligation, the Regulations ought to have been repealed or referred to this Court pursuant to paragraph 9 of the Fifth Schedule to the Constitution.
The requirement to pay the nomination fee, expressly in United States Dollars, was also stated to be an infringement of the rights contained in section 67 of the Constitution.
On the foregoing basis, the applicant sought the following order:
“1. That, it be and is hereby declared that in respect of Statutory Instrument 144 of 2022 which was published in the Gazette dated 19th August 2022, the Respondent (Parliament of Zimbabwe) failed to fulfil its constitutional obligation under section 152(3)(c) of the Constitution of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravenes any provision of the Constitution.
2. As a consequence arising from paragraph 1 of this order, that it be and is hereby declared that the Electoral (Nomination of Candidates) (Amendment) Regulations, 2022 (No.1): Statutory Instrument 144 of 2022 are null and void and of no force or effect.
3. There shall be no order as to costs.”
The respondent duly opposed the application.
Its opposing affidavit was deposed to by Jacob Mudenda, the Speaker of the National Assembly.
He refuted the allegation, that, the respondent had failed to fulfil a constitutional obligation. According to the respondent, the provisions of section 152(3)(c) of the Constitution were unambiguous — the obligation to examine every statutory instrument which had been published in the Gazette lay squarely on the Parliamentary Legal Committee (hereinafter “the PLC”).
Accordingly, the said provisions did not impose a constitutional obligation on Parliament itself, as was alleged by the applicant.
Contrary to the applicant's averments, the respondent submitted that the Parliamentary Legal Committee (PLC) did consider the Regulations on 26 September 2022, and, thereafter, resolved “not to issue a non-adverse certificate until they have had a meeting with the Zimbabwe Electoral Commission concerning the fees in Statutory Instrument 144 of 2022.”
Consequently, the Clerk of Parliament wrote a letter, on the same day, to the Zimbabwe Electoral Commission (ZEC) inviting it to appear before the Parliamentary Legal Committee (PLC).
By letter dated 28 September 2022, the Chief Elections Officer of the Zimbabwe Electoral Commission (ZEC) advised the Clerk of Parliament that ZEC was constrained in discussing the matter as it was sub judice. According to the respondent, this was the sole reason that the Parliamentary Legal Committee (PLC) had postponed its consideration of the Regulations until the High Court had passed its determination on their legality.
All in all, the respondent denied that the Parliamentary Legal Committee (PLC) had breached the Constitution in any way.
In any event, the respondent assiduously sought to distance itself from assuming responsibility for the Parliamentary Legal Committee's conduct. The respondent maintained, that, an alleged omission or breach by the PLC did not amount to failure by Parliament itself to fulfil a constitutional obligation.
Submissions by Counsel
Counsel for the applicant submitted, that, the applicant's locus standi was founded on section 2 of the Constitution.
It was described as the supremacy clause which provided a basis for the applicant to vindicate the supremacy of the Constitution as a citizen. He submitted, that, the obligation in terms of section 152(3)(c) of the Constitution was imposed on Parliament by virtue of being specifically imposed on the Parliamentary Legal Committee (PLC).
He referred to decisions of this Court from which it could be inferred that the actions of the Parliamentary Legal Committee (PLC) were attributable to the respondent itself.
He added that the Parliamentary Legal Committee (PLC), being a component of Parliament, was a functionary of the respondent and thus the cited obligation fell squarely upon the latter.
It was also contended, that, there were concessions on record by the respondent to the effect that it had not complied with its constitutional obligation.
Counsel for the applicant insisted that the said obligation could not be delayed by pending litigation on the same issue in the High Court.
This was so despite the import of Standing Order 98(1)(e) of the National Assembly Standing Orders (Public Business) Ninth Edition 2020.
The Standing Order provides that “no member shall, while speaking to a question –
(e)…, refer to any matter on which a judicial decision is pending.”
He submitted that the Standing Order applied only in respect of non–constitutional issues.
Counsel for the applicant also argued, that, the applicant was entitled to rely on the competence of the first respondent to carry out its constitutional obligations and that any perceived failure to pursue an Administrative Law action ought not to non–suit him before this Court.
Per contra, counsel for the respondent submitted, that, the respondent had clearly fulfilled the constitutional obligation in question, contrary to the applicant's position.
He referred to minutes of the Parliamentary Legal Committee (PLC) on record as evidence that the respondent had considered the constitutionality of the impugned statutory instrument. He argued that the process thereafter was only stalled by the Zimbabwe Electoral Commission's refusal to engage the PLC due to the pendency of litigation in the High Court.
He further reasoned, that, there was no timeline for submitting the report from the Parliamentary Legal Committee (PLC) to Parliament and that any order to that effect would be an undue intrusion into its domain.
In response, counsel for the applicant maintained, that, the Parliamentary Legal Committee (PLC) had a duty to examine and report on the constitutionality of the impugned statutory instrument. The two were deemed to be concurrent obligations that could not be separated as was argued on behalf of the respondent.
In this respect, he referred to Standing Order 36(6)(d) which specifically stipulates a twenty-six day period for the Parliamentary Legal Committee (PLC) to submit its report to Parliament.
After some initial reservation, counsel for the applicant accepted, that, a mandamus by the Court would be a competent remedy, consistent with the Court's authority under section 167(2)(d) of the Constitution to interfere with the respondent's processes....,.
Functions and Obligations of the Parliamentary Legal Committee (PLC) under Section 152(3) of the Constitution
Section 152(3) of the Constitution, in its relevant portions, provides as follows:
“The Parliamentary Legal Committee must examine –…,
(c) Every statutory instrument published in the Gazette;…,.
and must report to Parliament…, whether it considers any provision in the…, statutory instrument…, contravenes or, if enacted, would contravene any provision of this Constitution.”…,.
The obligation of the Parliamentary Legal Committee (PLC) under paragraph (c) of section 152(3) of the Constitution is self-evident. It is essentially two-fold:
(i) To examine every statutory instrument published in the Gazette; and
(ii) To report to Parliament on the constitutionality or otherwise of the statutory instrument.
The two functions are not only mandatory but are also conjunctive.
The examination of an instrument, without the submission of a report thereon, does not suffice to satisfy the obligation imposed upon the Parliamentary Legal Committee (PLC) by section 152(3)(c) of the Constitution. Moreover, by dint of section 324 of the Constitution “all constitutional obligations must be performed diligently and without delay.”
Counsel for the respondent accepts, that, the Parliamentary Legal Committee (PLC) is obligated to examine every statutory instrument, but, contends that it is only required to submit its report to Parliament, or other functionary identified in section 152(3) of the Constitution, where it decides to issue an adverse report on the instrument.
This would be the case both where the Parliamentary Legal Committee (PLC) considers the instrument to be in contravention of the Constitution, as per section 152(3) of the Constitution, or where it deems it to be ultra vires its enabling Act, as per section 152(4) of the Constitution. Thereafter, the adverse report is debated by the National Assembly and the Senate.
Counsel for the applicant contends otherwise.
He submits, that, the Parliamentary Legal Committee (PLC) must examine and report on every statutory instrument. Whether its report is adverse or not is quite immaterial in determining the constitutionality or vires of the instrument.
In this respect, the Parliamentary Legal Committee (PLC) cannot justify the need to consult the Zimbabwe Electoral Commission (ZEC) in delaying the submission of its report.
I fully agree with counsel for the applicant.
Firstly, I am unable to find anything in section 152 of the Constitution, or elsewhere in the Constitution, to justify the contention that the Parliamentary Legal Committee's obligation to present its report on the constitutionality or otherwise of statutory instruments is confined to those instances where it decides to issue an adverse report on the instrument under consideration.
Secondly, the Parliamentary Legal Committee's functions, under section 152(3) of the Constitution, are peculiar to its own mandated obligation thereunder and must be fulfilled independently of any other institution or public office.
In this connection, the Parliamentary Legal Committee (PLC) cannot invoke the need to consult or interact with the Zimbabwe Electoral Commission (ZEC) as a valid ground for withholding the submission of its report to Parliament.
To do so would be to violate the constitutional injunction to perform its obligation diligently and without delay.
Standing Orders 33 and 98
In assessing the functions of the Parliamentary Legal Committee (PLC), it is necessary to have regard to certain provisions of the National Assembly Standing Orders (Public Business), 9th edition, 2020.
The conduct of the proceedings of the Parliamentary Legal Committee (PLC) is governed by Order 33.
In terms of sub-order (6)(d), the Parliamentary Legal Committee (PLC) must present its report to the House, in the case of a statutory instrument published in the Gazette, within a period of twenty-six business days beginning on the first day of the month next following the month in which the instrument was published.
By virtue of sub order (7)(a), the Speaker, in consultation with the President of the Senate, may, upon application by the Chairperson of the Parliamentary Legal Committee (PLC), extend that period for a further period of twenty six business days. The Speaker may do so, if he or she considers it proper on account of the length or complexity of the instrument or the prevailing workload of the PLC or for any other sufficient reason.
Turning to Order 98, which prescribes the rules to be observed by Members, sub-order (1)(e) stipulates that:
“No member must, while speaking to a question –…,.
(e) Refer to any matter on which a judicial decision is pending;…,."
The other restrictions placed upon Members relate to, inter alia, the irreverent use of the name of the President, inappropriate references to other Members, the use of derogatory, disrespectful, offensive, or unbecoming words, using the right of speech for the purpose of obstructing proceedings of the House, and anticipating the discussion of any other subject which appears on the Order Paper.
Having regard to sub order (1)(e) in particular, the question that arises is whether or not the Parliamentary Legal Committee (PLC) was justified in withholding its report on the constitutionality or otherwise of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022.
The respondent's position in this respect is that the Parliamentary Legal Committee (PLC) was so justified so as to avoid canvassing issues that were sub judice before the High Court in Case No. HC6083/22.
Counsel for the respondent submits, that, Order 98(1)(e) precludes any comment on any matter pending before any court. In this case, the Parliamentary Legal Committee (PLC) had already taken the view that the impugned statutory instrument did not violate the Constitution and was simply awaiting consideration of the statutory vires of the instrument as envisaged by section 152(4) of the Constitution.
Counsel for the respondent further relies on Standing Order 33(3) which enables the Parliamentary Legal Committee (PLC) to receive such evidence as is required for the performance of its functions in terms of the Constitution. The PLC was therefore entitled to await the views of the Zimbabwe Electoral Commission (ZEC) before concluding and submitting its report on both the constitutionality as well as the vires of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I.144 of 2022.
Counsel for the applicant, on the other hand, submits that Order 98(1)(e) relates to the decorum of Members when speaking in Parliament. It does not impact upon the obligation of the Parliamentary Legal Committee (PLC) under section 152(3) of the Constitution to examine and report on every published statutory instrument.
The restriction imposed by sub-order (1)(e) is subordinate to the obligation of the Parliamentary Legal Committee (PLC) to fulfil its constitutional functions and is not relevant to the performance of those functions.
Counsel for the applicant also relies on the timeline requirement of twenty-six days stipulated by Order 33(6)(d), within which period the Parliamentary Legal Committee (PLC) is enjoined to submit its report to Parliament.
This timeframe must be complied with and does not permit any delay based on the need to consult or take evidence from other public bodies.
Having regard to the wording of Order 33(3), there can be no doubt that the Parliamentary Legal Committee (PLC) was duly authorised to receive evidence from the Zimbabwe Electoral Commission (ZEC) in the process of conducting its examination of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22.
The more critical question is whether or not it was entitled to wait indefinitely in so doing.
Given the peremptory language of Order 33(6), spelling out “the periods within which the [PLC] must report to the House” the answer to this question must be given in the negative.
The impugned statutory instrument was promulgated on 19 August 2022.
Allowing for the period of twenty-six business days prescribed by sub order (6)(d), coupled with the additional twenty six business days permitted by sub-order (7)(a), assuming that the Parliamentary Legal Committee (PLC) had applied for and been granted this extension, the deadline for the submission of the PLC's report to Parliament would have expired in the middle of November 2022.
As at the date when this matter was heard, i.e. in June 2023, the time that had elapsed was a period of seven months beyond the stipulated deadline. This is patently outside the timeframe contemplated by Order 33(6)(d).
The next question concerns the requirements of Order 98(1), and sub-order (1)(e) in particular.
It stipulates that: “No Member must, while speaking to a question…, refer to any matter on which a judicial decision is pending.”
The argument that the remainder of Order 98(1) is largely devoted to issues pertaining to the decorum and proper conduct of Members during the course of proceedings is fairly attractive. However, I do not think that the broader context of Order 98(1) can legitimately be allowed to detract from the specific stricture contained in sub order (1)(e).
It is sui generis in nature and its mandatory prohibition cannot be disregarded. Whether it is applicable and enforceable in casu is an entirely separate matter.
It cannot be disputed that Order 98(1)(e) is quite obviously an extant law in the broadest sense and that it must therefore be complied with unless and until it is set aside: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor SC10-02.
