BILL WATCH 26/2017
[3rd August 2017]
Constitution Amendment Bill Passed by Senate?
Stop Press: There have been queries about the two-thirds majorities in both Houses that passed the Bill
Bill Watch 25/2017 of 26th July announced, under the heading Late News, the final passing of the Constitution of Zimbabwe Amendment (No. 1) Bill by the National Assembly on Tuesday 25th July. This bulletin outlines the Bill’s subsequent passage through the Senate, culminating in a final affirmative vote on Tuesday 1st August.
The Bill’s Course through the Senate
The Bill was transmitted to the Senate immediately after being passed by the National Assembly on 25th July. Its course through the Senate was swift and relatively smooth – very unlike the lengthy and contentious proceedings in the National Assembly after its presentation in that House on 6th April.
Second Reading and Committee Stages
Both these stages were completed on Wednesday 26th July. The final stage, the Third Reading, was postponed to Tuesday 1st August.
During the Second Reading debate MDC-T Senators argued that it was wrong in principle to amend the Constitution so soon after a lengthy and very expensive constitution-making process had produced an agreed document subsequently approved by the country’s voters in a referendum. They also protested that the Bill’s changes in the method of appointing the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court would detract from the independence of the judiciary.
Responding to the debate, Vice-President Mnangagwa rejected both arguments. He asserted that as the Constitution allows amendments to be made at any time, no matter how soon, there can be no valid objection to an amendment put forward by a party that commands the special Parliamentary majorities needed to have amendments passed. He contended that the new appointment procedure would in no way detract from the independence of the judiciary!
MDC-T Senators disappointingly did not pursue a point that was raised at the last minute in the National Assembly by the MDC-T chief whip, but not answered in that House because the Speaker ruled it had been raised too late for discussion there. Hon Gonese’s point was that Vice-President Mnangagwa had told MPs that the new appointments procedure would require the President to consult the Judicial Service Commission by giving it a list of three candidates, whereas the Bill does not make any such provision, but merely states that the President must make an appointment “after consultation with the Judicial Service Commission”. Moreover, while section 339(2) of the Constitution goes into great detail on what “consultation” involves when required by the Constitution, it would not require the President to give the Judicial Service Commission a list of candidates.
On Tuesday 1st August, before the scheduled vote on the Third Reading was taken, the President of the Senate announced that the affirmative votes would be recorded in order to comply with section 328(5) of the Constitution, the provision that required “the affirmative votes of two-thirds of the membership of the Senate” for this final vote. The result of the count was that 53 Senators voted for the Bill, and 19 voted against. The President of the Senate then announced that the 53 affirmative votes satisfied the two-thirds majority requirement and declared the Bill duly passed in accordance with the Constitution. All 18 Senator Chiefs voted for the Bill. ZANU-PF Senator Mathuthu temporarily left her hospital bed to cast her “aye” vote.
Note on the two-thirds majority. Under the Constitution the Senate consists of 80 Senators. Currently, however, there are only 79, there being one vacancy brought about by the death on 9th July of Senator Alphina Juba, an MDC-T Senator for Matabeleland North. According to section 344(3) of the Constitution, two-thirds of 80 is 54 (rounded up from 53.33) and two-thirds of 79 is 53 (rounded up from 52.66).
In declaring 53 affirmative votes a two-thirds majority, the President of the Senate must have been relying on section 344(4) of the Constitution—
“(4) Any reference to the total membership of Parliament is a reference to the total number of persons who for the time being are Members of Parliament.” [the underlining is ours].
This can however be queried. The phrase total membership or Parliament is only used in the Constitution when applied to resolutions passed by joint sittings of the two Houses of Parliament. The phrase is not used in section 328(5) which requires a Bill amending the Constitution to be passed by two thirds of the membership of each House sitting separately. Section 344 (4) does not apply to Constitutional Bills. Section 120 of the Constitution says the Senate consists of 80 members. Therefore the Bill had to be passed by 54 Senators.
What Will Happen to the Bill Now?
First, the queries about the two-thirds majority in the Senate must be resolved.
Secondly, there is a query about the two-thirds majority in the National Assembly. Two ZANU-PF representatives who were listed in Votes and Proceedings as having vote for the Bill were, it is claimed, out of the country – in Uganda on parliamentary business. It is also claimed that an MDC member was incorrectly listed as voting for the Bill. If these claims are correct, the Bill was not passed by a two-thirds majority in the National Assembly.
Veritas is trying to verify these claims.
If these queries prove groundless and the Bill is confirmed to have been passed by both Houses of Parliament, it can be sent to the President for his assent and signature once the necessary special copies have been prepared by the Government Printer and the necessary supporting documentation has been completed by Parliament.
When presented to the President the Bill must be accompanied by certificates from the Speaker and the President of the Senate certifying that at the final vote in each House the Bill received “the affirmative votes of at least two-thirds of the membership” of the National Assembly and Senate, respectively [the certificates are required by section 328(10) of the Constitution].
Once assented to and signed by the President the Bill will have to be published in the Government Gazette as an Act of Parliament. Only then will it become law.
Reminder: The Bill Was Amended by Parliament
The original Bill, as gazetted on 3rd January and presented to the National Assembly, was amended during its passage through the National Assembly [see Bill Watch dated 18th July]. The Senate approved the Bill as thus amended without making any further amendments. So the Bill that will go to the President for his assent and signature will differ slightly from the original Bill. The differences are highlighted in an annotated copy of the Bill available on the Veritas website [link].
The National Assembly’s two amendments were proposed by Vice-President Mnangagwa in his capacity as Minister of Justice, Legal and Parliamentary Affairs. Clause 6 was amended by deleting subclause (2), a special provision for using the new appointment procedure, once it had become law, to fill the vacancy left by Chief Justice Chidyausiku’s retirement at the end of February. President Mugabe’s prompt appointment of Justice Malaba as Chief Justice, under the existing constitutional procedure, had already rendered the subclause superfluous when the Bill was presented in early April. The amendment to clause 8 was simply to remove a reference to the Chief Justice which was probably unnecessary anyway.
Neither amendment lessens the main thrust of the Bill, i.e., to increase the President’s powers in making appointments to the three key judicial posts of Chief Justice, Deputy Chief Justice and Judge President of the High Court. If and when the Bill becomes law, the President will no longer have to make an appointment from a list of three candidates sent to him by the Judicial Service Commission after a transparent preliminary process that includes public interviews of qualified candidates. Instead, the President will merely have to consult the Commission about who he proposes to appoint, but will not be bound to give effect to the Commission’s recommendations. If an appointment made is inconsistent with a recommendation of the Commission, the President will be obliged, to quote the Bill’s words, to “cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President as to such appointment shall be final.”
Further Constitutional Amendments?
In the Senate on 26th July Vice-President Mnangagwa had this to say while defending the Bill—
“Let me assure the Senate that this is not the only thing we intend to amend in the Constitution. There are many other areas which we are looking at, which we feel should be amended. It is not a question of being a ZANU PF Government in power, but it is a question of a democratic process. A democratic process requires that the party that has the majority after a general election should form a Government and it has a programme. If the Constitution forbids the implementation of a programme, they have a choice to amend the Constitution so that the programme can go forward. If next time they are not in power and some other political party comes in and thinks that they must amend, the Constitution allows them to amend – but for now we are amending, because we feel it must be amended.”