Deep dive: Constitution under siege

Despite the public consultation process which rejected it last year, Constitutional Amendment Bill (No.2) is likely to go before the Senate this week. If the progress of the Bill in the National Assembly is any indication of how the Senate will vote, there is a high chance that the Bill will be passed in the Senate. Zanu PF does not have a two thirds majority in the Senate, and the assenting votes of opposition senators will be necessary to pass the Bill. 

The theme of Constitutional Amendment Bill (No.2) is the consolidation of power in the executive, and the undermining of the roles of other arms of Government: in particular the judiciary and parliament. The Bill was passed in the National Assembly on 20 April 2021. As Veritas noted, “The 191 affirmative votes included 15 cast by MDC-T MPs. . . It seems bizarre that so many opposition MDC MPs who claim they are constitutionalists voted with the Government. Without their votes, Government would not have had the required two-thirds majority [180 votes].”

The passage of the Bill through the National Assembly has raised serious legal and constitutional concerns. The Constitution states that the “precise terms” of a Constitutional Amendment Bill must be published for 90 days before a Bill goes to Parliament, giving an opportunity for the public to comment. Legislation watchdog Veritas argues that a Constitutional Amendment Bill is different from other Bills, in that once the “precise terms” of the Bill have been published for public scrutiny, they cannot undergo substantive changes by Parliament as was done in the case of Constitutional Amendment Bill (No.2). Acceptable changes could include corrections and the deletion of certain clauses following public consultation, but would not include changes that adjust the substance of the proposed clauses, as in the case in the current Bill. 

Meanwhile, on 12 April 2021, Constitutional Amendment Bill (No.1) 2017 was passed by the Senate, completing its passage through Parliament. The Bill, which was unprocedurally passed by the previous Parliament in 2017, gives sweeping powers to the President to appoint senior judges without a public interview process or any other checks and balances. 

The Bill already has a checkered history, after being struck down by the Constitutional Court last year. Serious questions have been raised about the legality of the Bill, which was passed this month in noncompliance with Section 147 of the Constitution. Section 147 states that Bills lapse at the end of a term of Parliament. In order for it to be reintroduced, the procedure for tabling and passing a Bill must be restarted from the beginning. 

This means that in order to comply with the procedural rules governing the lawmaking process, the Bill should have been reintroduced with a first reading (three readings are required in total) in Parliament and then undergone the mandatory 90 day waiting period. Instead, the Bill went straight to the Senate, where it sailed through. 

Concerns over the legality of the reintroduction of the Bill had already been pointed out to Parliament by the Constitutional Court, with Justice Patel observing that even though the Constitutional Court had ruled in favour of extending the lapsed waiting period for the Bill to give more time for Parliament to pass it, “[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.” The advice of Justice Patel, which was buttressed by Justice Gowora, was completely disregarded. 

The contentious passing of the Constitutional Amendment Bill (No.1) was made possible by the votes of opposition Senators from MDC-T. This included the assenting vote of Douglas Mwonzora, former co-chair of the COPAC process which resulted in the 2013 Constitution.  

On 23 April, Bulawayo based lawyer Nqobani Sithole approached the Constitutional Court to seek the reversal of Constitutional Amendment Bill (No.1) on the grounds that the Senate had failed to exercise its Constitutionally mandated legislative role by enacting a Bill that had lapsed in 2018.

Source: Kubatana.net