Constitution Amendment (No. 1) Bill, 2017, passed by Senate – Bill Watch 23/2021

Only the National Assembly sits this week

The Senate sat last week and will sit again on Tuesday 20th April

Last Week in the Senate

Tuesday 6th April

Attendance

Seventy-seven Senators were present, four of them virtually, according to the official attendance register printed in Votes and Proceedings. This exceptional turn-out was requested because of the scheduled Third Reading of the Constitution of Zimbabwe Amendment (No. 1) Bill, 2017.

Virtual Standing Orders

The new Virtual Standing Orders were adopted. They will regulate virtual participation in proceedings of the Senate. Senator Komichi spoke of the need to upgrade internet connectivity in remote rural areas to enable members of Parliament from those areas to participate effectively.

Constitution of Zimbabwe Amendment (No. 1) Bill, 2017 – Third Reading

The Minister of Justice, Legal and Parliamentary Affairs briefly outlined the reasons for the re-submission of this Bill for its Third Reading by the Senate nearly four years after the original Third Reading. [He was obliged to repeat his contribution because at first he had not been audible to all attending]. He mentioned the importance of a valid affirmative vote:

“I cannot reiterate enough what a legal and constitutional quagmire you Hon. Senators will help our country avoid if you secure the validity of the Constitution of Zimbabwe Amendment No. 1 Bill by your vote in the Senate today. You will be aware that already another amendment to the Constitution has been published and is pending before Parliament. The second amendment somewhat assumes the validity of the first amendment before you today”.

He was followed by several Senators, all of whom spoke of the new mood of unity and harmony in the Senate. Senator Chief Charumbira reminded his colleagues that there had been three attempts during the previous session to “get the numbers right”, all of which had failed; he was sure that today the numbers would be right.

When the votes of Senators were recorded, the result was 70 Ayes to 1 No. The single No vote was cast by Senator Komichi of MDC-T. The President of the Senate then declared the Bill to have been duly passed in accordance with section 328(5) of the Constitution.

On 8th April Parliament transmitted the Bill to the Government Printers for production of the printed version that will be submitted to the President for his assent and gazetting as an Act. The Act will be an Act of 2021.

Comment: Was the Minister correct when he said this vote will avoid a legal and constitutional quagmire? Uncertainty persists, and a new constitutional point has been raised.

Uncertainty over Validity of Constitution Amendment (No. 1) Bill

The Bill has now had a successful Third Reading and looks set to be re-gazetted as an Act of 2021 [see above]. But last week’s Third Reading by the Senate was the only aspect of this Bill that was dealt with by the present Parliament. It was the previous Parliament that dealt with everything else and that previous Parliament came to the end of its constitutional life when it was dissolved immediately before the 30th July 2018 general election by operation of section 143(1) of the Constitution [‘Parliament stands dissolved at midnight on the day before the first polling day in the next general election”]. The interposition of this dissolution brings section 147 of the Constitution into play:

“147. On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.”

Section 147 was not referred to in Chief Justice Malaba’s Constitutional Court judgment of 31st March 2020 invalidating the first Third Reading in August, perhaps because it was not directly relevant at the time the case was argued before the court in January 2018, some six months before the dissolution of Parliament. But it was the main point raised in the Constitutional Court on behalf of Mr Gonese when resisting Parliament’s September 2020 application for an extension of the grace period allowed by the Chief Justice for another .

The reaction of the three Constitutional Court judges to section 147 varied.

Justice Gowora was in favour of refusing the extension because to do so would involve the court in a breach of section 147. Justices Makarau and Patel granted a 90-day extension but were both very conscious of the problems posed by section 147.

The judgments of Justices Makarau and Patel also carry warnings of potential legal trouble ahead in the event of a “successful” Third Reading vote:

Justice Makarau

While adamant that the court could not question the constitutionality/correctness of the court’s 31st March 2020 order in the application before it, Justice Makarau added:

“Only this court can depart from its previous decisions, rulings or opinions. I venture to add for emphasis that only this Court, in a future and appropriate constitutional matter, may depart from its previous order” [bold text in the judgment] I take solace from the fact that the constitutionality of the order of 31 March 2020, whilst not debatable in this application, may be debated in an appropriate matter in the future, where the interpretation of section 147 of the Constitution is the cause of action. The order of 31 March 2020, whilst final, is not binding on this Court.”

Justice Patel

Justice Patel was more direct:

“I am nevertheless constrained to caution that their (i.e., Parliament’s) success in this application does not constitute any licence for the applicants to violate the requirements of the Constitution or to disregard any of its provisions … anything done in contravention of the Constitution is a nullity. Therefore, any act or conduct by the applicants in direct violation of the Constitution will remain a nullity, even if carried out purportedly in compliance with the order of this Court. Consequently, in the event that they decide to proceed with the Constitution Amendment Bill (No. 1), they would be obligated to do so, not only in accordance with the voting requirements prescribed in section 328 of the Constitution but also in conformity with any relevant and applicable constitutional injunction, including the legal ramifications of section 147 of the Constitution.”

Wednesday 7th April

Marriages Bill – Second Reading

The Minister of Justice, Legal and Parliamentary Affairs wound up the Second Reading debate by completing his response to the “robust debate” that had taken place during the previous session. He mentioned the difficulties of harmonising the traditional law of marriage with the civil law and international conventions by which Zimbabwe is bound and how there had been several meetings with the chiefs to resolve differences. These had resulted in the three amendments to the Bill he would be proposing during the Committee Stage. The Bill was then given its Second Reading without further discussion. The Committee Stage is set down for Tuesday 20th April. The Minister’s Notice of Amendments is available on the Veritas website. The amendments were summarised in Bill Watch 22/2021.

Coming up in the National Assembly This Week

The National Assembly last sat on 25th March, since when it has been in a two-week Easter recess. Its unfinished business remains the same as previously.

Bills

Forest Amendment Bill, for the start of the Committee Stage. Comprehensive amendments, all proposed by the Minister Environmental, Climate, Tourism and Hospitality Industry, now appear on the Order Paper and are available on the Veritas website.

Cyber Security and Data Protection Bill, also for the start of the Committee Stage, as it has been for a long time. There are many pages of proposed amendments, emanating from both the Minister of Information Communication Technology, Postal and Courier Services and the Portfolio Committee [all the amendments are captured in a document prepared by Veritas, available on our website]. The Minister‘s amendments are extensive and were summarised in Bill Watch 18/2021; if adopted, they will change the original Bill considerably.

Pension and Provident Funds Bill, for the start of the Second Reading stage. Public hearings have now been conducted by the relevant portfolio committee.

Constitution of Zimbabwe Amendment (No. 2) Bill, for continuation/conclusion of the Second Reading debate. MPs have already, on 9th July last year, heard the Minister’s Second Reading speech and the report on the public hearings on the Bill conducted by the Portfolio Committee on Justice, Legal and Parliamentary Affairs. Some individual MPs have made their contributions. Several Constitution Watches containing detailed critical commentary on this Bill, and Veritas’ submissions to the Portfolio Committee, are available on the Veritas website. The main criticism of the Bill from a wide cross-section of Zimbabweans has been that most of the amendments serve to increase executive power at the expense of the legislature and judiciary.

Having regard to what the Minister said in the Senate on the Constitution Amendment (No. 1) Bill – that some of the amendments in the No. 2 Bill assume the validity of the No. 1 amendments – he may wish to defer continuation of this debate for the time being.

Centre for Education, Innovation, Research and Development Bill, for continuation of the Second Reading stage. The Minister has already delivered his Second Reading speech. The next step is presentation of the Portfolio Committee’s report on the Bill and the virtual public hearings it has conducted.

Take-note motions on ZHRC and NPA reports

The Minister of Justice, Legal and Parliamentary Affairs has three such motions heading the Order Paper for 13th April, all of them carried over from last year:

Other motions on reports

Quality assurance in the Higher and Tertiary Institutions in Zimbabwe Hon Maphosa’s presentation of the report by the Portfolio Committee on Higher and Tertiary Education, Science and Technology Development is creeping towards the top of the Order Paper.

Debate on the President’s Speech at the Opening of the Session

The Speaker has repeatedly urged MPs to end their contributions, so this debate may be wound up this week.

Source: Veritas

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