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of Zimbabwe Amendment (No. 17) Act, 2005
September 16, 2005
of Zimbabwe Amendment (No. 17) Bill, 2005
See the amended Constitution
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Gazetted in the Government
Gazette Extraordinary on the 14th September, 2005. Published in General
Notice 373D of 2005, 16th September, 2005.
The effect of section
24(2) is that certain amendments come into operation immediately (i.e.,
on the 16th September, 2005), while others, principally those concerning
the introduction of the Senate but including section 17 concerning the
Electoral Supervisory Commission and the Zimbabwe Electoral Commission,
will not come into full operation until the Senate has been duly elected
and constituted in terms of section 24(1) as read with the Second Schedule.
It is not stated how the date of commencement of the full operation of
the second group of amendments will be officially identified and notified
to the public. Individual footnotes in the document indicate the provisions
coming into operation the 16th September, 2005.
In this Act, section
24(2) makes fairly complex provision for its commencement, the effect
of which can be summed up as follows:
came into force immediately, i.e., with effect from 14th September 2005.
These provisions are:
- sections 2 and
22, which are concerned with the compulsory acquisition of land
- section 3, which
amends section 22 of the Constitution (permitting additional restrictions
on freedom of movement)
- section 4, which
amends section 23 of the Constitution (extending the scope of protection
- section 18,
which permits the extension by Act of Parliament of the functions
of the Judicial Service Commission to embrace functions in connection
with the employment, discipline and conditions of service of persons
employed in the Supreme Court, the High Court and courts subordinate
to those courts (e.g., the Administrative Court and the magistrates
courts) and in the office of the Ombudsman
- section 19, (new
definition of "voter" only) and section 20 (stating qualifications
for members of the Senate)
- Part I of the
First Schedule (minor amendments related to the above)
- the Second Schedule
and, by necessary implication, much of section 24, which provide for
transitional matters, particularly the election and appointment of
the first Senators.
The remainder, all
dealing with or incidental to the introduction of the Senate, will come
into full operation only once the Senate is duly elected and constituted
in terms of the special transitional provisions contained in section
24(1) as read with the Second Schedule. That seems to be the effect
of section 24(2), but a note of doubt is introduced by the heading to
Part II of the First Schedule, which, curiously, envisages the minor
amendments specified in that Part coming into operation on the date
of publication of the President's proclamation setting in motion the
machinery for the election of the first Senators; as those minor amendments
are all incidental to the introduction of the Senate, it is not clear
why they should commence earlier than the major amendments on the subject.
Section 17 of Amendment No.
17 is NOT one of the sections coming into operation immediately, as
listed in the proviso to section 24(2) of Amendment No. 17.
The effect of this is that for the time being, and in particular for
the purposes of the forthcoming Senate elections, both the Electoral
Supervisory Commission (as constituted by section 61 of the Constitution
unaffected by Amendment No. 17) and the "old-style" Zimbabwe
Electoral Commission (as constituted by the ZEC Act) will be in existence
Only once the Senate has been "elected and constituted" (see
section 24(2) of Amendment No. 17) will section 17 come into operation.
Only then will the ESC disappear and the ZEC be transformed into the
new ZEC provided for in the new section 61 of the Constitution enacted
by section 17 of Amendment No. 17.
As regards the machinery
for giving effect to the new constitutional provisions for the Senate,
this is set out in the Second Schedule to the Act. According to paragraph
4 of that Schedule, the process must be set in motion by a proclamation
to be published in the Government Gazette not later than the 13th December,
2005 (which is ninety days after the date of commencement of the Act).
The proclamation, which will be made by the President, will call for nominations
and fix the polling date for the elections to be held for the fifty "constituency"
Senatorial seats, and also fix dates on which the provincial electoral
colleges of Chiefs will meet to elect the eight elected Senator Chiefs.
Also to be anticipated, given the provisions of paragraph 2 of the Second
Schedule, are statutory instruments made by the Electoral Supervisory
Commission, with the approval of the Minister of Justice, Legal and Parliamentary
Affairs; those statutory instruments will modify the Electoral Act and
the Electoral Commission Act in order to cater for the election of Senators.
At least the most important of those statutory instruments will, presumably,
be published before the election proclamation.
(1) The Second
Schedule applies with respect to the first election of Senators in
terms of section 34(1)(a) and (c) of the Constitution.
(2) Until the
Senate is duly elected and constituted in terms of subsection (1),
the Constitution as it applied immediately before the date of commencement
of this Act shall continue in force, except for the following provisions
of this Act, which shall come into force immediately on the date of
3, 4 and 18, the definition of “voter” inserted into
section 113 of the Constitution by section 19(a), sections 20 and
22, Part I of the First Schedule,
and the Second Schedule.
(3) Any Standing
Orders which were in force immediately before the date of commencement
of this Act shall, on and after that date, continue in force in all
respects as if they had been made in terms of section 57 of the Constitution
and, until such time as they are amended or repealed accordingly,
the Speaker may apply them subject to such modifications as appear
to him or her to be necessary to extend their application to the Senate.
(4) Every person
who, immediately before the date of commencement of this Act, was
a member of Parliament by virtue of being elected or appointed in
accordance with the Constitution immediately before the date of commencement
of this Act shall, on the date when the Senate is duly elected and
constituted in terms of subsection (1), become a member of the House
of Assembly as though he or she had been appointed or elected in accordance
with the Constitution as amended on that date.
To amend the Constitution of Zimbabwe.
ENACTED by the President
and the Parliament of Zimbabwe.
1 Short title
This Act may be cited as the Constitution of Zimbabwe Amendment (No. 17)
2 New section
inserted in Constitution2
The Constitution is amended by the insertion after section 16A of the
land acquired for resettlement and other purposes
(1) In this section—
“acquiring authority” means the Minister responsible for
lands or any other Minister whom the President may appoint as an acquiring
authority for the purposes of this section;
“appointed day” means the date of commencement of the Constitution
of Zimbabwe Amendment (No. 17) Act, 20053.
anything contained in this Chapter—
(a) all agricultural
(i) that was
identified on or before the 8th July, 2005, in the Gazette or Gazette
Extraordinary under section 5(1) of the Land Acquisition Act [Chapter
20:10], and which is itemised in Schedule 7, being agricultural
land required for resettlement purposes; or
(ii) that is identified after the 8th July, 2005, but before the
appointed day, in the Gazette or Gazette Extraordinary under section
5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural
land required for resettlement purposes; or
(iii) that is identified in terms of this section by the acquiring
authority after the appointed day in the Gazette or Gazette Extraordinary
for whatever purpose, including, but not limited to—
A. settlement for agricultural or other purposes; or
B. the purposes of land reorganization, forestry, environmental
conservation or the utilization of wild life or other natural resources;
C. the relocation of persons dispossessed in consequence of the
utilization of land for a purpose referred to in subparagraph A
is acquired by and vested in the State with full title therein with
effect from the appointed day or, in the case of land referred to
in subparagraph (iii), with effect from the date it is identified
in the manner specified in that paragraph; and
(b) no compensation
shall be payable for land referred to in paragraph (a) except for
any improvements effected on such land before it was acquired.
(3) The provisions
of any law referred to in section 16(1) regulating the compulsory acquisition
of land that is in force on the appointed day, and the provisions of
section 18(1) and (9), shall not apply in relation to land referred
to in subsection (2)(a) except for the purpose of determining any question
related to the payment of compensation referred to in subsection (2)(b),
that is to say, a person having any right or interest in the land—
(a) shall not
apply to a court to challenge the acquisition of the land by the State,
and no court shall entertain any such challenge;
(b) may, in accordance with the provisions of any law referred to
in section 16(1) regulating the compulsory acquisition of land that
is in force on the appointed day, challenge the amount of compensation
payable for any improvements effected on the land before it was acquired.
(4) As soon as
practicable after the appointed day, or after the date when the land
is identified in the manner specified in subsection (2)(a)(iii), as
the case may be, the person responsible under any law providing for
the registration of title over land shall, without further notice, effect
the necessary endorsements upon any title deed and entries in any register
kept in terms of that law for the purpose of formally cancelling the
title deed and registering in the State title over the land.
(5) Any inconsistency
between anything contained in—
(a) a notice
itemised in Schedule 7; or
(b) a notice relating to land referred to in subsection (2)(a)(ii)
and the title deed to which it refers or is intended to refer, and
any error whatsoever contained in such notice, shall not affect the
operation of subsection (2)(a) or invalidate the vesting of title
in the State in terms of that provision.
(6) An Act of Parliament
may make it a criminal offence for any person, without lawful authority,
to possess or occupy land referred to in this section or other State
(7) This section
applies without prejudice to the obligation of the former colonial power
to pay compensation for land referred to in this section that was acquired
for resettlement purposes.”.
of section 22 of Constitution4
Section 22 (“Protection of freedom of movement”) of the Constitution
(a) in subsection
(3)(a) by the deletion of “in the interests of defence, public
safety, public order, public morality or public health” and the
substitution of “in the national interest, or in the interests
of defence, public safety, public order, public morality, public health,
the public interest or the economic interests of the State”;
(b) in subsection (4) by the deletion of “preventing any person
from leaving Zimbabwe or”.
of section 23 of Constitution5
Section 23 (“Protection from discrimination on the grounds of race,
etc.”) of the Constitution is amended—
(a) in subsection
(2) by the deletion of “or gender” wherever it occurs and
the substitution of ", sex, gender, marital status or physical
(b) in subsection (3)—
(i) by the repeal
of paragraph (a) and the substitution of—
"(a) matters of personal law;";
(ii) in paragraph (d) by the deletion of “or gender” and
the substitution of ", sex, gender, marital status or physical
(iii) by the insertion of the following paragraph after paragraph
(g) the implementation
of affirmative action programmes for the protection or advancement
of persons or classes of persons who have been previously disadvantaged
by unfair discrimination.”;
(c) by the insertion
of the following subsection after subsection (3)—
subsection (3)(b), in implementing any programme of land reform the
Government shall treat men and women on an equal basis with respect
to the allocation or distribution of land or any right or interest
therein under that programme.";
(d) in subsection
(5) by the deletion of "or gender" wherever it occurs and
the substitution of "sex or gender".
of section 31F of Constitution
Section 31F (“Vote of no confidence in Government”) of the
Constitution is amended by the repeal of subsection (1) and the substitution
may, by resolution supported by the votes of not less than two-thirds
of all the members of each House, pass a vote of no confidence in the
6 New section
inserted in Constitution
Chapter V of the Constitution is amended by the insertion in Part I of
the following section after section 32—
Parliament shall consist of two Houses, called the Senate and the House
the full document
into operation with effect from the 16th September, 2005.
3 i.e. the 16th September, 2005.
4 into operation with effect from the 16th September, 2005
5 into operation with effect from the 16th September, 2005
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