CHIWESHE
JP: In this opposed application the applicants
seek an order in the following terms:
“IT IS ORDERED
THAT:
- The purported appointments and entry into office as
Ministers of:
SAVIOUR KASUKUWERE
JOSEPH MADE
WALTER MUZEMBI
FLORA BHUKA
SYLVESTER NGUNI
HENRY MADZORERA
GILES MUTSEKWA
and
SEKAI HOLLAND
are hereby
declared to be null and void.
ALTERNATIVELY
- 1st respondent and 2nd
respondent be and are hereby directed, within seven days of the date of
service of this order upon them, to prevent more than 15 ZANU PF nominees,
13 MDC-T nominees and 3 MDC M nominees from purporting to act and carry
out the functions of Ministers so that the Ministerial complement of
Government does not exceed 31 persons.
- The 1st and 2nd respondents are
hereby ordered to publish in the Government Gazette a list of Government
Ministers in the number and manner required under the constitution.
- Only persons included in such list shall be entitled
to receipt of any emoluments or entitlements as would accrue to a Minister
from the Government or carry out the functions of a Government Minister.
- It is hereby declared that there shall not be
appointed any number of Ministers above those catered for in terms of the
Constitution of Zimbabwe.
- 1st respondent and 2nd
respondent shall pay the costs of this application.”
The facts giving rise to this
application are common cause. The
composition of the executive arm of Government is governed by Schedule 8 of the
Constitution of Zimbabwe. The first
paragraph of that Schedule provides that the provisions of Schedule 8 shall
prevail notwithstanding any other provision to the contrary elsewhere in the
Constitution. Art 20.1.6 (5) of Schedule
8 to the Constitution provides as follows:
“There shall be
thirty one (31) Ministers with fifteen (15) nominated by ZANU PF, thirteen (13)
by MDC – T and three (3) by MDC M.”
During the month of February 2009
the first respondent, acting in consultation with the second respondent, appointed
a total of 41 Government Ministers. All
the 41 appointees duly took and subscribed before the first respondent, the
oaths of office and loyalty prescribed for Ministers. This number exceeds by 10 the 31 Ministers
provided for in terms of Art 20.1. 6 (5) of Schedule 8 to the
Constitution. The third to the tenth
respondents were all appointed after the 31st appointee. Their appointments were thus made in excess
of the 31 Ministers provided for in terms of Schedule 8 to the
Constitution. For that reason, the
applicants aver that their appointments were unconstitutional and therefore
null and void.
At the hearing of this application
Advocate Uriri (for the respondents)
raised a point in limine as to the
jurisdiction of the court to hear and determine what he referred to as a
political question. He argued that
Amendment Number 19 to the Constitution, which inserted Schedule 8 was driven
by Parliament's intention to give effect to the Global Political Agreement
(GPA) entered into by the three major political parties, namely, ZANU PF, MDC
T, and MDC M. In doing so, Parliament
was alive to the fact that the political settlement would not remain static –
it could change from time to time. It
was for this reason that the provisions of Schedule 8 were not inserted under s
31 of the Constitution which would ordinarily deal with the executive
structures of Government. He further
argued that Schedule 8 heralds itself as a “Framework for a New
Government”. Article 20 thereof
introduces the provisions of the GPA in order to give that agreement the force
of law. Schedule 8 is thus the product
of a political settlement and susceptible to change through political conduct.
Schedule 8, according to Advocate Uriri,
raises political rather legal issues.
For that reason any dispute arising there from is a matter for
Parliament to resolve. The Courts have
no jurisdiction to hear and determine such dispute.
Advocate Ochieng (for the applicants) argued to the contrary. While conceding that Schedule 8 came about as
a result of the Global Political Agreement he contended, to my satisfaction,
that once the terms of a political settlement are incorporated into the
Constitution, they become part of our law.
They can no longer be regarded as mere political issues – they become
legal issues the import of which this court has jurisdiction to determine. This court has full original civil jurisdiction
over all persons and over all civil matters in Zimbabwe (section 13 of the High
Court Act [Cap 7.06]. I agree with the applicants when they state
that the Constitution lies at the very foundation of the country's legal
order. To suggest that any of its
provisions are merely a political matter would undermine the rule of law and
negate the very foundation of a democratic society. In support of this unusual proposition,
Advocate Uriri cited the following
cases: King and Ors vs Attorneys Fidelity Fund Board of Control and Another
2006 (1) SA 474; Doctors
for Life International vs Speaker of National Assembly 2006 (6) SA 416; United Democratic Movement vs President of
South Africa 2003 (1) SA 506.
However, these cases are
distinguishable from the present application and in some respects, support the
contention by the applicants that this court's jurisdiction is unassailable. In King
and Ors vs Attorneys Fidelity Fund Board of Control and Another, supra, the issue was whether the South
African National Assembly, had failed to fulfill its constitutional obligation
to facilitate public participation in the legislative process. In the present application, the issue is not
whether the first and second respondents have failed to fulfill their
constitutional obligation; rather, the issue is whether in fulfilling that
obligation, they have exceeded the mandate given to them in terms of Schedule 8
to the Constitution by appointing more than 31 Ministers.
In United Democratic Movement vs President of the Republic of South Africa
and Others 2003 (1) SA 495 what the court dealt with at page 506 and
identified as a “political question” was not the provisions of the disputed
legislation themselves but the debate as to the merits of those
provisions. That clearly would not be
the concern of any court. The “merits
and demerits” are matters for Parliament to deal with during the legislative
process. In this application the merits or demerits of the provisions of
Schedule 8 to the Constitution are not in issue. It is the interpretation of those provisions
which is at stake. Clearly again the
distinction is obvious. The respondents have not established any basis upon
which the jurisdiction of this court is ousted. It was for this reason that I
decided the point in limine in favour
of the applicants.
On the merits the applicants appear
to have established a prima facie
case for the grant of the order they seek, assuming a literal construction of
the relevant provision is adopted. I
agree with the applicants that Schedule 8 is part of the Constitution by virtue
of the Constitution of Zimbabwe Amendment (No 19) (Act 1 of 2009). I also agree that the dispute resolution
mechanism in the political agreement (GPA) entered into by the three major
political parties is not applicable in resolving disputes arising out of the
provisions of Schedule 8 to the Constitution.
The normal rules of statutory interpretation must apply.
The respondents have however argued
that the provisions of Schedule 8 must be interpreted broadly and not
restrictively. The respondents contend
that the provisions of Art 20 .1. 6 (5) relating to the complement of Ministers
are directory rather than peremptory. It is argued that the preamble to Schedule 8
is instructive in the interpretation of the provisions of sub-paragraph 5. The Schedule is entitled “Framework for a new
Government”. The preamble acknowledges
that the three parties have an obligation to establish a framework for working
together in an inclusive government and that the formation of such a government
will have to be approached with sensitivity, flexibility and willingness to
compromise. The preamble also indicates
the parties' commitment to carry the hopes and aspiration of “the millions of
our people” and the parties' determination to work for conditions for
“returning our country to stability and prosperity”. It acknowledges the need
for gender equality and the appointment of women to strategic Cabinet
positions.
The respondents argue, and I agree, that
the objectives and values set out in this preamble represent the objective for
which Schedule 8 was inserted into the Constitution, and the reason why
Schedule 8 was given primacy over the rest of the provisions of the
Constitution. The Schedule therefore
represents part of the broader political agreement among the three political
parties. Schedule 8 therefore, it is
argued, is an extra-ordinary provision in the Constitution placed there purely for
political expediency. It therefore
stands on an entirely different footing from the rest of the provisions of the
constitution. It is then averred by the
respondent that “a court of law having established that a particular issue
before it is of a purely political nature, notwithstanding its inclusion in the
Constitution, the court should refuse to involve itself by prescribing remedy
for it”. Reference is then made to the
“political question” doctrine which admittedly, whilst recognized in the United States,
has not been recognized in this jurisdiction.
It is further argued that this principle of interpretation should be
followed by our courts, particularly when any intervention on the usual grounds
of unconstitutionality may lead to instability within the political
establishment and the citizenry, thereby defeating the whole purpose for which
the inclusive government was established.
As already alluded to earlier, I do not agree with the respondents in
this regard. I am of the view that once
a political matter is inserted into the Constitution, it becomes justiciable. However, any remedy that the court may impose
must take into account any adverse implications of such remedy on the political
order of the day.
The respondents further propose that
in interpreting the provisions of the Constitution, the principle of purposive
interpretation of statutes should be taken into account. In terms of that principle, interpretation is
not dependent entirely on the literal meaning of the words used in a statutory
provision. One must look beyond the
manifested intention in order to give full effect to the intention of the
legislature. In this case the purpose of
the provision in question was the establishment of a new Government on the
basis of “flexibility, compromise and sensitivity” in line with the spirit
underlying the GPA. At page 36 of the
book “Interpretation of Statutes”, the learned author, G.E. Devenish, is quoted
thus:
“An authentic
purposive approach ----- endeavours to interpret a provision of a statute in
accordance with the purpose or ratio under all circumstances regardless of
whether there is ambiguity or not”.
The contention
of lack of ambiguity by the applicants, argue the respondents, is thus at
variance with this approach and should therefore be rejected. The purpose of the enactment takes precedence
over ambiguity or lack of it. For these
reasons, taking into account the purpose for which Schedule 8 was inserted into
the Constitution and the need for first respondent to appoint more than 31
Ministers as the practical means of achieving that purpose, the provision in
question should be interpreted as directory rather than peremptory. For this proposition, the respondents have
relied on the case of R v National
Insurance Commissioners 1972 AC 944 where at 1005 D to E it was stated that
there should be “…….a purposive approach to the Act as a whole to ascertain the
social ends it was intended to achieve and the practical means by which it was
expected to achieve them.” The
respondents also relied on the case of Crawford
and Ors v Borough of Eshowe and Anor 956 (1) SA 147 wherein it was stated
at p 157 H as follows:-
“No universal
rule can be laid down for the construction of statutes as to whether mandatory
enactment should be considered directory only or obligatory with an implied
nullification for disobedience. It is
the duty of the courts of justice to try to get to the real intention of the
legislature by carefully attending to the whole scope of the statute concerned
to be construed”.
Further, in the
same case, it is observed that “Provisions of a statute which relate to the
performance of a public duty seem to be generally understood as mere
instructions for the guidance and government of those on whom the duty is
imposed, that is to say directory only, where the invalidation of actions done
in neglect of them would work serious general inconvenience or injustice to
persons who have no control over those entrusted with the duty and where
invalidation would not promote the essential aims of the legislature”. The
respondents also relied on the Namibian case of Government of the Republic
of Namibia v Cultural
2000 1994 (1) SA 487 wherein at p 418 F it was observed that:-
“A Constitution
is an organic instrument. Although it is
enacted in the form of a statute, it is sui
generic. It must broadly, liberally
and purposively be interpreted so as to avoid the austerity of tabulated
legalism and so as to enable it to continue to play a creative and dynamic role
in the expression and the achievement of the ideals and aspirations of the
nation, in the articulation of the values bonding its people and in
disciplining its Government.”
In Capital Radio Pvt Ltd v Broadcasting Authority of Zimbabwe 2003 (2)
ZLR 236 (5) at p 247 B to D CHIDYAUSIKU CJ made similar pronouncements as
follows:-
“However, there
is another different approach to constitutional interpretation. This approach is supported by a long line of
cases both nationally and
internationally. In this approach a
Constitution is considered a document that is sui generis requiring special guidelines of interpretation. These guidelines or principles include:
1.
the Constitution must be interpreted as a living
instrument.
2.
the Constitution must be given a generous and purposive
construction.
3.
the Constitution must be construed as a whole.
4.
the spirit of the Constitution, as reflected in the preamble and, national objective and
directive principles of State policy, is to guide interpretation by the court.
5.
ratified treaties should provide a legitimate guide in
interpreting constitutional provisions”.
In Rattigan
and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 54 (5) at 57 F to H
GUBBAY CJ (as he then was) said –
“This court has
on several occasions in the past pronounced upon the proper approach to
constitutional construction embodying fundamental rights and protections. What is to be avoided is the imparting as
narrow, artificial, rigid and pedantic interpretation; to be preferred is one
which serves the interest of the Constitution, and best carries out its objects
and promotes its purpose.”
Traditionally our courts have been
guided by the decision in Sutter v
Scheepers 1932 AD 165, wherein the following rules of interpretation were
suggested:-
“(1)
The word “shall” when used in a statute is rather to be considered as
peremptory,
unless there are other circumstances which
negative this construction.
(2)
If a provision is couched in a negative form, it is to
be regarded as a peremptory rather than a directory mandate.
(3)
If a provision is couched in positive language and
there is no sanction added in case the requisites are not carried out, then the
presumption is in favour of an intention to make the provision only directory.
(4)
If when we consider the scope and objects of a
provision, we find that its terms would, if strictly carried out, lead to
injustice and even fraud, and there is no explicit statement that the act is to
be void if the conditions are not complied with, or if no sanction is added,
then the presumption is rather in favour of the provision being directory.
(5)
The history of the legislation also will afford a clue
in some cases”.
The applicants
have argued that the provisions under consideration, being clear and
unambiguous, be given their literal meaning.
But it is clear to me that the trend in the construction of constitutional
provisions is that the courts have increasingly moved away from the strict
interpretation urged by the applicants in favour of a liberal approach. Indeed the Supreme Court in the Capital Radio case supra has confirmed that this is the preferred approach nationally
and internationally. I agree with the respondents' analogy in applying the
rules set out in Sutter v Scheepers supra to the present case. They state at p 29 of their heads of argument
as follows:-
“………it is
evident that article 20.1.6 (5) is not couched in the negative form, and the
presumption, following the observations attributed to Maxwell above in relation
to the performance of a public duty, should be that the provisions of the
article should be construed as being merely directory rather than
peremptory. Further argument in favour
of the article being directory exists in that it is couched in positive
language and there is no sanction added in case the requisites are not carried
out. There is also no explicit statement
that if the numbers mentioned therein are not adhered to or complied with then
any contrary act is to be void”.
In addition to the guidelines in the
Sutter case supra, I have already indicated that our courts, nationally and
internationally, have embraced a further doctrine in the construction of
constitutional provisions – the doctrine of purposive interpretation. I am satisfied that it is primarily this
doctrine, encompassing a liberal and broad approach to interpretation rather
than the narrow and strict approach, that should guide the court in its
determination of the present matter.
There is nothing in the Interpretation Act [Cap 1:01] that precludes the court from proceeding accordingly.
If the order that the applicants
seek were to be granted, it would destabilize the government of national unity
and cause unnecessary confusion within the body politic and prejudice the
public interest at large. That cannot be
said to be consistent with the intention of the legislature in enacting
Schedule 8 to the constitution. The stated
intention of the legislature was to create a government of national unity in
which the three major political parties would be represented
proportionately. It was intended that
this government achieves the objectives set out in the preamble to Schedule 8
and in the manner and spirit envisaged therein.
In the Crawford and Ors supra it was observed that “the provisions of a
statute which relate to a public duty seem to be generally understood as mere
instructions for the guidance and government of those on whom the duty is
imposed, that is to say as directory only………”
The point is also made therein that where, as in the present case, it is
sought to invalidate the actions of such public officers and the consequences
of doing so would result in serious general inconvenience or injustice, and,
where such invalidation would not promote the essential aims of the
legislature, such an order as to invalidation should not be granted.
In
any event the figures envisaged under Art 20.1.6 (5) have not been outrageously
exceeded given the complexity of Government administration. Further, the proportion of representation as
among the three parties remains largely the same. An anomaly has admittedly arisen but, in my
view, that anomaly does not warrant the grant of the order sought. In any event this is not an anomaly that the
legislature itself cannot address in one way or another, given its wide powers.
Finally, I agree with the
respondents that because this application raises an important legal issue of
great public interest, there should be no order made as to costs.
For these
reasons I order as follows:
- That
the application be and is hereby dismissed in its entirety.
- That
there be no order as to costs.
Coghlan Welsh &
Guest, applicants' legal practitioners
Attorney General's
Office, respondents' legal practitioners
