COURT WATCH 2/2022
[1st March 2022]
Constitution Amendment Challenge : Mushoriwa v Parliament of Zimbabwe
Veritas is bringing an application in the Constitutional Court to challenge the validity of an amendment of the Constitution that was promulgated last year. The case is Mushoriwa & 3 Others v Parliament of Zimbabwe & Another (CCZ 18/21) and it is set down for hearing tomorrow, the 2nd March.
In this Court Watch we shall explain the background to the application.
The Purported Amendment of the Constitution
On the 31st December 2019 the Constitution of Zimbabwe Amendment (No. 2) Bill, 2019 was published in the Gazette. It can be accessed on the Veritas website [link]. The Bill proposed to make many amendments to the Constitution, the most important of which were the following:
- To remove provisions for Vice-Presidents to be elected as running-mates of presidential candidates. Instead, Vice-Presidents would be appointed by the President and would hold office at the President’s pleasure.
- To give the President’s political party the right to choose a successor in the event of the President dying or ceasing to hold office.
- To extend until 2033 the provisions under which 60 women are elected to the National Assembly by proportional representation, and to add a further 10 youth members (i.e. persons aged between 21 and 35) who would also be elected by proportional representation.
- To remove the need for electoral boundaries to be delimited as soon as possible after population censuses.
- To allow sitting judges of the Supreme Court and High Court to be appointed to a higher court without the need for public interviews.
- To extend the terms of office of Constitutional Court judges.
- To allow the President to appoint the Prosecutor-General without the need for candidates to be publicly interviewed.
- To remove the need for parliamentary approval of State agreements with foreign banks and financial entities.
When the Bill was considered by the National Assembly in April 2021 numerous amendments were proposed at the Committee Stage, some of them put forward by the Minister of Justice and some by Members of the House, some after notice in the Order Paper and some (contrary to Standing Orders) without any notice at all. These amendments made important changes to the Bill, including:
- In regard to the election of 60 women members to the National Assembly, requiring ten of them to be youths (i.e. under the age of 35) and ensuring that women with disabilities are put forward in the lists of candidates for election.
- Exempting not only judges of the Supreme Court and High Court from the need to undergo public interviews before being appointed to a higher court, but also judges of the Administrative Court and Labour Court.
- Extending the retirement age of judges from 70 to 75, and providing for the extension to apply to judges who are already in office.
- Providing that at least 10 per cent of the people employed in the Civil Service must be persons with disabilities.
- Altering the membership of provincial councils so that each council will have 10 women members elected by a system of proportional representation.
- Altering the membership of local authority councils so that at least 35 per cent of the councillors are women elected under a system of proportional representation.
We discussed these amendments, and the way in which they were incorporated into the Bill, in Constitution Watch 1/2021 of the 20th April 2021 [link].
The Bill as amended was passed by the National Assembly and the Senate and published as Act No. 2 of 2021. It can be accessed on the Veritas website [link].
Veritas contends that by amending the Bill the National Assembly contravened section 328 of the Constitution. Hence the Bill was not properly passed by Parliament and the Act is null and void.
The basis for this contention is that section 328 of the Constitution states that before a Constitution amendment Bill can be presented in Parliament the Speaker must give at least 90 days’ notice in the Gazette of “the precise terms” of the Bill, and during those 90 days Parliament must invite the public to express their views on the Bill in public meetings and through written submissions. As we explained in our Constitution Watch 1/2021, this allows the public to see precisely what amendments are proposed and gives them 90 days in which to discuss them and lobby their members of Parliament to vote for or against the Bill. Section 328 would be wholly defeated if the Government were permitted to alter a Constitution amendment Bill out of all recognition after it had been presented to Parliament. Suppose for example the Government were to publish a Bill that proposed to change the name of the Zimbabwe Media Commission to the Media Commission of Zimbabwe, and then when the Bill passed through Parliament the Minister were to get the Bill amended to abolish the Senate and the Zimbabwe Human Rights Commission: could it possibly be said that those amendments were lawful? Surely not.
We contend that the power to alter a Constitution Amendment Bill during its passage through Parliament is very limited: Parliament can resolve to remove clauses from the Bill (because that will leave the Constitution unchanged) and it can resolve to make minor corrections to the Bill; but if any substantial changes are to be made then the whole process must start again: a fresh Bill must be published in the Gazette and the public must be given 90 days in which to debate and discuss the new Bill.
The changes that were made to the Constitution of Zimbabwe Amendment (No. 2) Bill have been outlined above. They were extensive and substantial, and the Bill as passed by Parliament was materially different from the one that was originally published in the Gazette. Parliament therefore did not pass the Bill in accordance with section 328 of the Constitution, so the resultant Act is void.
Order Sought and Date of Hearing
Veritas is seeking an order that declares Constitution of Zimbabwe Amendment (No. 2) Act as void or alternatively that all the sections introduced after the gazetting of the Bill be set aside.
Our case has been consolidated with cases filed by other institutions such as the Law Society that raise similar and related issues. As we have already noted, the hearing of the consolidated cases in the Constitutional Court is scheduled for the 2nd March.