BILL WATCH 27/2020
[13th May 2020]
A Mini-Parliament Sat Briefly on Tuesday 5th May
Both Houses Will Sit Again on Tuesday 19th May
Both Houses of Parliament met on Tuesday afternoon, 5th May, but in reduced numbers. The reduction in the number of members was in accordance with the earlier decision of the Committee on Standing Rules and Orders [CSRO], as described in Bill Watch 22/2020 [link]. The official Votes and Proceedings for the afternoon show that 120 members were present in the National Assembly, and 32 in the Senate.
Both sittings lasted less than twenty minutes and were limited to announcements by the presiding officers, including notifying vacancies [see below] in terms of section 129(1)(k) of the Constitution. Both Houses then adjourned until Tuesday 19th May.
What will happen on 19th May?
As for what will happen on 19th May, and whether sittings and committee meetings will then be resumed, the country will have to wait and see. The brief statement made by the Speaker in the National Assembly on Tuesday afternoon makes it clear that while contingency plans to allow Parliament to function are being pursued, much will depend on the lead given by the Government in reviewing the success or otherwise of the current Level 2 National Lockdown, due to end at midnight on Sunday 17th May.
The Order Papers for Tuesday 19th May have been produced and a great deal of business is listed – but this should probably be regarded as provisional, depending on developments during the week.
The National Assembly
The Speaker made two announcements.
Parliamentary business in the wake of the COVID-19 pandemic
After opening prayers in the National Assembly the Speaker made the following statement on Parliament business in the wake of the COVID-19 pandemic:
“I would like to thank the Hon. Members who have come from the designated areas because of the Coronavirus pandemic which is ravaging human kind throughout the world. It is important therefore, that we as legislators observe the World Health Organisation injunctions as well as our own national strategy as pronounced by Government to observe the requirements that may help in containing, to some degree, the impact of the Coronavirus. We, as Parliament are obligated to play our oversight role in the circumstances and accordingly, the Committee on Standing Rules and Orders has exercised its mind regarding the arrangements that will make it possible for Parliament to function with minimum degree of disruption while at the same time fulfilling its constitutional mandate.
That is why as you will notice, your Order Paper is extremely thin and business will be restricted accordingly today and Parliament will engage the stakeholders, particularly the hotels so that adequate arrangements are made for Members of Parliament to be accommodated accordingly. It is hoped that we will get further direction in the next two weeks from the Government on the way forward. Meanwhile, administrative measures are being worked out by the Clerk and Staff of Parliament to ensure that the wheels of function in Parliament do take place accordingly.”
Three vacancies declared following “recall” of MPs
Next, the Speaker announced that Parliament had on 3rd April been notified “by the Movement for Democratic Change-Tsvangirai Party [MDC-T]” that three MPs – Chalton Hwende [constituency MP for Kuwadzana East], Thabitha Khumalo [proportional representation MP for Bulawayo Province] and Chapfiwa Prosper Mutseyami [constituency MP for Dangamvura-Chikanga] – had ceased to be members of the MDC-T party and had therefore ceased to represent its interests in Parliament. Referring to section 129(1)(k) of the Constitution, the Speaker then informed the House that the MPs’ seats had become vacant “by operation of law”, i.e. in terms of that section, and that the President and the Zimbabwe Electoral Commission [ZEC] would be informed accordingly. [See note headed “Filling the Vacancies?” below]
Hansard records “inaudible interjections” at one point of this announcement, but there was no discussion before the House adjourned until 19th May.
The President of the Senate, Hon.Chinamona, made preliminary remarks about the reason for the limited number of Senators present – the need to maintain social distancing within the Senate chamber – and welcomed the presence of the Minister of Foreign Affairs and International Trade. She then made three announcements:
Senate to Reconsider Third Reading of 2017 Constitution Amendment (No. 1) Bill
Hon Chinomona notified the Senate that on 31st March 2020 the Constitutional Court had decided that this Bill had been unprocedurally passed by Parliament on the 1st August 2017, and had ordered that the Bill be referred back to the Senate at the Third Reading stage. Parliament would, the Senate President said, comply with the court order. The Order Paper for 19th July duly lists the Third Reading of the Bill as item 4 for consideration.
Explanation This bulletin is not the place for an unpacking of the Constitutional Court’s decision in this case [Gonese and Majome v Parliament of Zimbabwe, the Speaker of the National Assembly, the President of the Senate, and, in their official capacities, the then Vice-President/Minister of Justice, Legal and Parliamentary Affairs (Mr Mnangagwa) and the then President (Mr Mugabe), Judgment No. CCZ 4/2020 [link]. But a brief explanation is necessary in view of the time that has elapsed since the Constitution Amendment (No. 1) Bill was passed and the resulting Act 10/2017 gazetted on 7th September 2017. Readers may recall that Veritas warned at the time that questions could be raised about the validity of the Senate vote for precisely the same reason now relied on by the Constitutional Court; see, for example, Bill Watch 26/2017 [link].
Section 328(5) of the Constitution states the number of votes required for a Constitution Amendment Bill to be passed by Parliament as “the affirmative votes of two-thirds of the membership of each House”. The Constitutional Court interpreted “the membership” as the number of members allocated to each House by the Constitution, i.e. 270 members in the National Assembly and 80 members in the Senate. Parliament mistakenly took the view that the two thirds majority applied to the 79 incumbent Senators [there was an unfilled vacancy caused by a death] and that therefore the 53 vote for the Bill was a two-thirds majority. In fact the 53 votes was just short of the two-thirds of the constitutionally defined membership of 80 Senators. The Bill was passed.. In doing so, the Constitutional Court said Parliament had erred.
Instead, however, of simply setting aside the passing of the Bill as invalid, the court suspended its declaration of invalidity for 180 days [i.e. until the end of September 2020] and ordered that the Senate be allowed another opportunity to vote on the Third Reading of the Bill, this time applying the 54 affirmative votes requirement. Failure within the 180 days to achieve 54 affirmative votes on a second attempt, the court said, would result in the declaration of invalidity of the passing of the Bill becoming final.
Note for readers with long memories The National Assembly’s passing of Constitution Amendment (No. 1) was also in issue in this case. The applicants alleged that the affirmative votes count in the National Assembly had, as a matter of fact, fallen well short of the required 180 votes. The evidence submitted by Parliament admitted that it had been necessary for Parliament to “revise” errors in the records of the count – including serious errors in the official printed but “uncorrected” Votes and Proceedings released the day after the vote. After considering all the evidence, however, the court declared itself satisfied that the revision had been properly made and that the 180-vote threshold had been satisfied.
One vacancy declared following “recall” of Senator Timveos
Next, Senate President Chinomona announced that Parliament had on 3rd April been notified “by the Movement for Democratic Change-Tsvangirai Party (MDC-T)” that Senator Lillian Timveos [a proportional representation Senator for Midlands Province] had ceased to be a member of the MDC-T party and had therefore ceased to represent its interests in Parliament. Referring to section 129(1)(k) of the Constitution, Hon Chinomona then informed the Senate that the Senator Timveos’ seat had become vacant “by operation of law”, i.e., in terms of that section, and that the President and the Zimbabwe Electoral Commission [ZEC] would be informed accordingly. [See note headed “Filling the Vacancies?” below]
Unsuccessful attempted “recall” of Senators Mwonzora and Komichi
Finally, Hon Chinomona announced that on 6th April Parliament received a letter from Hon. Hwende dated 3rd April, 2020 to recall Senators Mwonzora and Komichi in terms of section 129(1)(k) of the Constitution. She then informed Senators that:
“Having studied the said section of the Constitution and the recent court judgment in the case of MDC and Others versus Mashavira and Others, No. S.C. 56/2020, I am satisfied that the purported recall is null and void for its lack of compliance with the Supreme Court ruling cited herein.”
Judgment No. S.C. 56/2020, of course, is the much-discussed Supreme Court decision of 31st March that upset the leadership arrangements in the MDC party by:
1) the appointment of Messrs Chamisa and Mudzuri as Deputy Presidents of the MDC party by party President Morgan Tsvangirai before his death;
2) Mr Chamisa’s later elevation, by party organs after Mr Tsvangirai's death, to Acting President and later President of the party;
3) all Mr Chamisa's appointments, reassignments and actions in his purported capacities as Deputy/Acting or incumbent President; and
declaring Mrs Khupe the acting party President. The remedy ordered by the Supreme Court for was for Mrs Khupe to convene an Extraordinary Congress of the MDC party by the end of June to elect a new President in succession to Tsvangirai. Should Mrs Khupe fail to comply, the former National Chairman of the party, Morgen Komichi [automatically reinstated by the Supreme Court order], will have to convene the congress by the end of July. [Note: Mrs Khupe has recently announced the convening of the Extraordinary Congress for 31st July].
Filling the Vacancies?
Legal proceedings to challenge the recalls of the four MPs and Parliament’s acceptance of the recalls – and, of course, Parliament’s rejection of the two attempted recalls – now seem inevitable. If legal proceedings are launched, that may cause delays in completing the necessary proceedings to fill the declared vacancies [i.e. appointments by the Zimbabwe Electoral Commission [ZEC] of party nominees for the two proportional representation [PR] seats, and by-elections for the two constituency seats].
PR vacancies require appointments
The Chief Electoral Officer has already said that ZEC received notification of the vacancies on 7th May. Subject to any delays resulting from possible legal proceedings, there seems no reason for ZEC not to proceed with the relevant pre-appointment procedures despite the current COVID-19 lockdown. Section 39 of the Electoral Act [link] details the steps to be taken.
Constituency vacancies require by-elections
Vacancies in constituency seats have to be filled by by-elections.
Calling by-elections is for the President to do after consultation with ZEC. Holding by-elections, however, would present obvious practical problems should the COVID-19 lockdown continue much longer, because section 158(2) of the Constitution provides that a by-election must be held within 90 days of the occurrence of a vacancy, whether it be in Parliament or on a local council.
ZEC chairperson on the 26th March announced the suspension of all by-elections on account of the COVID-19 pandemic, as the Chief Electoral Officer reminded us on 7th May. [Note: postponing a by-election may not be constitutional]
If the by-elections are postponed, how binding is the 90-day requirement? As a matter of fact, the 90-day requirement has not been consistently complied with over the years since 2013, and no-one has suggested that results of late by-elections were invalid solely because the polling occurred later than it should have.