On Wednesday last week, 24th March, the Senate approved a motion by the Minister of Justice, Legal and Parliamentary Affairs to restore the Constitution of Zimbabwe Amendment (No. 1) Bill, to the Order Paper. This Bill had lapsed at the end of the previous Parliamentary session nearly six months ago.
The Constitution of Zimbabwe Amendment (No. 1) Bill, 2017 (“the Bill”) was ostensibly passed by Parliament in August 2017 and published as law on 7th September 2017 as the Constitution of Zimbabwe Amendment (No. 1) Act , 2017 (No. 10 of 2017).
Being a Bill to amend the Constitution the Bill should have been passed “by the affirmative votes of two-thirds of the membership of each House” [Constitution, section 328(5)].
At its last reading in the Senate on 1st August 2017 it received only 53 affirmative votes. The full membership of the Senate is 80, but at the time of the vote there was one vacancy. Two-thirds of 80 is 54, two-thirds of 79 is 53 – and Parliament took the vacancy into account and accepted the 53 votes as having complied with the constitutional requirement.
Veritas, in Bill Watch 26/2017, issued after the vote, expressed the firm opinion that Parliament had made a mistake, that membership of the Senate in section 328(5) should have been interpreted as referring to the potential complement of 80 Senators, ignoring the vacancy, and that 53 affirmative votes should not have been accepted as satisfying the constitutional requirement.
Nevertheless Parliament stuck to its opinion and, having accepted the Senate vote as constitutionally compliant, went ahead and submitted the Bill to President Mugabe, who promptly assented to it. The Act was gazetted on 7th September 2018.
Two Opposition MPs – Mr Gonese and Ms Majome – promptly, in fact before the Bill became an Act, filed a challenge in the Constitutional Court to invalidate the passing of the Bill. As well as challenging the lack of the two-thirds majority in the Senate they also challenged the passage of the Bill in the National Assembly as the vote had been conducted in a chaotic manner and according to the official Votes and Proceedings there was not a two-thirds majority for the government.
The Constitutional Court heard argument from legal practitioners representing both sides on the 31st January 2018. It was not until the 31st March 2020 however [over two years later] that the Constitutional Court handed down its decision. In a judgment written by Chief Justice Malaba and concurred in by the other eight judges:
- it dismissed the challenge on the invalidity of the National Assembly vote and found that Parliament had satisfactorily proved that a two-thirds vote had in fact been received.
Note: Parliament had claimed that votes and proceedings did not reflect the actual vote and they had corrected this before the court papers were filed.
- it found that the two-thirds affirmative votes requirement, properly construed, meant that the “membership of the Senate” for the purposes of section 328 despite vacancies, meant 80, with the consequence that 54 votes had been needed, not 53. The Bill had not, therefore, been properly passed by the Senate.
Parliament given a Second Chance
The Chief Justice and his colleagues, however, did not just make a simple declaration that the Bill had not been validly passed by Parliament – which would have meant that the resulting Act and anything done under it were also invalid. Instead, it saw fit to suspend its declaration of invalidity for 180 days to allow the Senate to conduct another Third Reading vote on the Bill and added that if by the expiry of the 180th day, the Bill had not been passed by 54 affirmative votes, the declaration of invalidity would come into force.
Despite this reprieve Parliament did not get the Third Reading of the Bill through the Senate in 180 days. Although lockdown started at the end of March it did not immediately affect Parliamentary sittings – it was only later that Parliament restricted numbers and sat virtually. Nevertheless Parliament almost let the 180-day grace period elapse. But on the 25th September, with three days to go, Parliament claimed that Covid-19 had prevented compliance with the judgment and lodged two simultaneous applications at the Constitutional Court:
- a substantive application seeking an extension to the 180-day period, and
- an urgent ex parte chamber application [an application without notice to other interested parties] for a provisional order extending the 180-day period and also suspending the coming into effect of the court’s declaration of invalidity of the Bill. The ex parte order was granted on 28th September and on 6th October the other interested parties, having in the meantime been served with the papers, consented to the provisional order.
Note: As Ms Majome had by this time left Parliament and become a member of the Zimbabwe Anti-Corruption Commission, Mr Gonese soldiered on alone in defence of adherence to the Constitution and rule of law.
Parliament Given a Third Chance
The substantive application was heard on 10th November by a three-judge Constitutional Court bench consisting of Justices Makarau, Gowora and Patel – all acting judges of the court – on 10th November. [Justices Gowora and Patel had been members of the bench that granted the order of 31st March 2020.]
Note: A three-judge bench was legally in order, because on 22nd May 2020 the Constitution’s transitional arrangements for the composition of the Constitutional Court [including the usually obligatory nine-judge bench] had expired and been replaced by the substantive provisions of section 166. [Section 166 provides for the Constitutional Court to be an entirely separate court with its own judges and put an end to the transitional arrangement under which the judges of the Supreme Court were also judges of the Constitutional Court. This development was explained in Court Watch 10/2020.
The Constitutional Court’s decision on granting another extension was delivered on 26th February 2021.
Mr Gonese’s lawyer, Mr Biti, argued against the granting of an extension as the Bill had gone through the Eighth Parliament which had been dissolved at the end of July 2018. After the July 2018 election a new parliament – the Ninth Parliament was sworn in. This made section 147 of the Constitution applicable:
“On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.”
Therefore, relying on the court’s 31st March decision that the Bill had not been properly passed by the Senate, Mr Biti argued that the Bill had lapsed under section 147. This made it impossible for the Senate of the Ninth Parliament to conduct another Third Reading vote on the Bill without contravening section 147 of the Constitution.
All three judges gave separate judgments. Justices Makarau and Patel were in favour of granting a 90-day extension. Justice Gowora gave a dissenting judgment explaining why she would have denied an extension outright.
Justice Makarau said that to accept Mr Biti’s argument would be for the court to attack the constitutionality of the court’s order of 31st March, which would be inconsistent with the principle of finality of a Constitutional Court decision in a particular case, which she distinguished from the court’s power to depart from its previous decisions in future cases for good cause shown. Parliament’s application for an extension was a continuation of the original 2017 case and not a separate matter in which the 31st March order could be contradicted. She then proceeded to consider whether Parliament had made out a case for the extension requested and decided that it had done so.
Justice Makarau that the court’s order should be as follows:
“1. The application is granted.
2. The period referred to in paragraph (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.
3. Each party shall bear its own costs.”
Justice Patel in his separate judgment agreed with Justice Makarau that the court could not question the constitutionality of the 31st March 2020 and that a case had been made out for an extension. He, therefore, concurred with Justice Makarau.
Justice Gowora essentially agreed with the a point argued by Mr Biti – that Parliament’s application was unconstitutional and could not be granted by the court because to do so would be condoning a breach by Parliament of section 147 of the Constitution.
Effect of the Constitutional Court’s Order
The Senate now has a new deadline of Wednesday 26th May to comply with paragraph (b) of the March 2020 order as extended by the 25th February order:
“The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within 90 days of 25th February 2021, failing which the declaration of invalidity of Constitutional Amendment Bill [sic] (No. 1) of 2017 in paragraph (1) shall become final.”