Landmark Victory for Constitutionalism as ConCourt Nullifies President’s Excessive Powers on Appointment of Judges

THE Constitutional Court of Zimbabwe on Tuesday 31 March 2020 delivered a landmark ruling wherein it declared as unconstitutional the legality of the Constitution of Zimbabwe Amendment (No.1) Act.

The Act sought to amend Section 180 of the Constitution by giving the President sole powers to appoint the Chief Justice, his deputy and the Judge President of the High Court. It also sought to add a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.

In an application which was filed in September 2017 by MDC party legislator and former Chief Whip Hon. Innocent Gonese and former MDC party Harare West legislator Hon. Jessie Majome, the two legislators protested that the Senate failed to fulfil the constitutional obligation defined in section 328(5) of the Constitution, which requires a Constitutional Bill to be passed by two-thirds of its membership when it passed Constitutional Amendment Bill (No.1) of 2017 into law on 1 August 2017.

The purported passing of Constitutional Amendment Act (No.1) of 2017 had the main effect of changing the procedure for the appointment of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court such that the appointment of these judicial officers would be made solely by the President after consultation with Judicial Service Commission.

In their application filed by Advocate Thabani Mpofu instructed by Hon. Tendai Biti of Zimbabwe Lawyers for Human Rights, Hon. Gonese and Hon. Majome argued that Parliament did not follow the correct procedures in passing Constitutional Amendment Bill (No.1) of 2017 into law.

The two legislators, seeking a declaratory order, argued that Parliament failed to comply with the constitutional obligation defined in Section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of both Senate and National Assembly, sitting separately.

They also argued that no vote was conducted as required by the Constitution of Zimbabwe.

In line with this, the Full Bench of the Constitutional Court on Tuesday 31 March 2020 ruled in favour of Hon. Gonese and Hon. Majome’s application and declared that the passing of Constitutional Amendment Bill (No. 1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the Senate.

The Constitutional Court declared Constitutional Amendment Bill (No. 1) of 2017 as invalid to the extent of the inconsistency and stated that the declaration of invalidity shall have effect from the date of the granting of the apex court’s order but is suspended for a period of 180 days.

Senate, the Constitutional Court ruled, should conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within180 days of the granting of the Constitutional Court’s order, failing which the declaration of invalidity of Constitutional Amendment Bill (No. 1) of 2017 shall become final.

Source: Zimbabwe Lawyers for Human Rights

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