BILL WATCH 26/2021
[30th April 2021]
Only the Senate Sat This Week
Both Houses Will be Sitting Next Week
Constitution Amendment (No. 2) Bill: Senate Completes Second Reading
and Committee Stages but Delays Final Vote until 4th May
The only business dealt with by the Senate this week was the Constitution of Zimbabwe Amendment (No. 2) Bill, sent to it on Tuesday 20th April 2021, having been passed by the National Assembly with substantial amendments and having received affirmative votes from 191 members of the National Assembly. [This is comfortably more than the minimum 180 votes needed for a two-thirds majority of the total membership of this House].
The Bill sent to and received by the Senate differed substantially from the Bill originally gazetted in January 2020, having been transformed by a number of amendments made by the National Assembly at the request of the Minister of Justice, Legal and Parliamentary Affairs [see Bill Watch 24/2001 of 20th April [link], Constitution Watch 1/2021 of 20th April [link] and Bill Watch 25/2021 of 26th April [link].
Second Reading stage (Tuesday)
On Tuesday 27th April the Minister introduced the Second Reading stage with a speech explaining the Bill in its amended form. In his speech the Minister pre-empted any discussion of the propriety of the National Assembly’s having made so many amendments of substance to the original Bill with the categorical statement that both the Constitution and the Standing Orders of Parliament permit Bills to be amended; and if the Constitution intended to disallow amendments to a Constitutional Bill it would have said so specifically.
Comment: Veritas considers that this opinion is not correct. See Constitution Watch 1/2021 [link].
There followed what the Minister later described as a “robust debate”, in which Opposition Senators questioned aspects of the Bill, particularly the scrapping of electing Vice-Presidents under a running-mates system [due for implementation in the 2023 elections] and the clauses amending the Constitution’s provisions for appointment of judges and the extension of the retiring age from 70 to 75 for the Chief Justice, the Deputy Chief Justice and judges of the Supreme Court and the Constitutional Court. The Minister responded in detail to criticisms of the Bill in his speech winding up the debate and the Bill received its Second Reading.
Committee stage (Tuesday and Wednesday)
The Senate then went straight into the Committee Stage. Most clauses were agreed to without amendment, but a sticking-point was reached on clause 13, replacing section 186 of the Constitution on Tenure of office of judges. Under the entirely new section 186(4) – a subclause which did not appear in the original gazetted Bill – the retirement age of the Chief Justice, Deputy Chief Justice, Constitutional Court judges and Supreme Court judges would be extended [but not High Court judges and other judges]. The new subclause said this would be “notwithstanding subsection (7) of section 328 of the Constitution”.
Note: section 328(7) is a clear statement that “a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office … at any time before the amendment”.
Veritas had drawn attention to section 328(7) in our comments on the original gazetted Bill and concluded that the new retirement age would not apply to the current Chief Justice and Deputy Chief Justice and Constitutional Court and Supreme Court judges currently holding office. An extension of retirement age would be an extension of the length of time for holding an office; therefore the new section 186 would not apply to current office-holders. The newly inserted section 186(4) is clearly an attempt to overcome this difficulty and allow current office-holders – including Chief Justice Malaba, due to turn 70 in a couple of weeks’ time – to take advantage of the new retirement age. But as we pointed out in our comment on the amended Bill in Constitution Watch 1/2021 [link]:
“Trying to override section 328(7) in this way is legally impossible, because the section is an entrenched provision that can be varied only by a Bill which has been approved at a national referendum.”
Section 328(7) states:
“Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.
Section 328(9) goes on to state that section 328(7) may be amended only by following the procedure for amending Chapter 4 of the Constitution – the Declaration of Rights – which requires not only special majorities in Parliament, but must also be approved by a national referendum.
At 6.48 pm on Tuesday evening, without having resolved the deadlock on clause 13, the Senate adjourned until the following day at the suggestion of the Minister
On Wednesday 28th April the Senate resumed consideration of clause 13. The Minister explained his view of the effect of the new section 186: that it is not a provision affecting “term-limits” at all, merely a provision affecting “age-limits”. Senator Mavetera responded that that he did not find the Minister’s explanation convincing and that the Opposition would maintain their objections. A division on clause 13 was then called and Senators’ votes counted. The result was 45 votes for the clause and 19 against, sufficient for the clause to be approved [the need for a two-thirds majority in favour applies only to the final vote on the Bill at the Third Reading stage].
The remaining clauses and the Schedule of minor amendments were then approved. The Committee Stage of the Bill was, therefore, completed without amendments.
The Senate immediately adjourned until Tuesday 4th May for the Third Reading. It did not meet on Thursday as usual, perhaps because the governing party needs more time to round-up enough Senators to ensure a two-thirds majority to approve the Third Reading, for which at least 54 votes will be needed. ZANU-PF has only 35 Senators. Even if all 18 Senator Chiefs vote with ZANU-PF, that is only 53 votes assuming a 100% turnout. So, depending on the number of no-shows when it comes to the Third Reading, achieving 54 affirmative votes will necessarily require the support of at least one or more other Senators – either from the two Senators representing disabled person or from the 25 Opposition Senators.