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Constitution Amendment No. 19 re-gazetted - Bill Watch 35/2010
Veritas
September 04, 2010

Yesterday’s Government Gazette contains a new version of the Constitution of Zimbabwe Amendment (No. 19) Act, 2009 (Act No. 1 of 2009) published by direction of the Law Reviser. [Electronic version of revised Amendment No. 19 available.]

The covering General Notice 244/2010 over the name of the Law Reviser reads as follows:

Statute Law Compilation and Revision Act

[CHAPTER 1.03]

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Publication of Constitution of Zimbabwe Amendment Act (No. 19), 2009, together with Interparty Political Agreement

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IT is hereby notified that the Law Reviser has, in terms of section 11B(1) of the Statute Law Compilation and Revision Act [Chapter 1:03], directed the Government Printer to print and publish the Constitution of Zimbabwe Amendment Act (No. 19), 2009 (No. 1 of 2009) together with, for the information of the public, the Interparty Political Agreement as defined in section 115 of the Constitution.

J.B. ZOWA, Law Reviser, 3-9-2010

Note: Section 11B(3) of the Statute Law Compilation and Revision Act provides that the version of an individual Act printed in terms of section 11B(1) shall, upon notification in the Gazette, “be accepted in all courts as the sole version of the statute concerned as at the date of such notification”.

So this is the version of Constitution Amendment No. 19 that must be used from now on.

Background

When Constitution Amendment No. 19 was originally gazetted as Act No. 1 of 2009 in February 2009 it was immediately observed that it was an abridged version of the Bill that had been passed by Parliament in its entirety. The last eighteen pages of the Bill were missing from the Act. [See Bill Watch 6/2009 of 24th February 2009.] This discrepancy became one of the points of dispute between the three GPA parties.

The three GPA party principals agreed on 24 disputed points and an implementation matrix [which was then approved by the recent SADC meeting]. Agreed point 20 in the matrix is that the Minister of Justice would immediately arrange that “The full text of Constitutional Amendment No. 19 as approved by Parliament should be gazetted and signed.” It is implicit in this agreement that Constitution Amendment No. 19 as gazetted in February 2009 does not reflect the Bill as approved by Parliament.

Comments

It is an unsatisfactory response to the problem: A revision of Constitution Amendment No 19 by the Law Reviser does not constitute compliance with the principals’ direction that Constitution Amendment No. 19 as approved by Parliament be gazetted and signed [i.e., signed by the President]. To comply with that direction the new version of the Act should have been published by the President’s Office, like any other Act of Parliament, with a General Notice stating that it had been assented to by the President. Doubts over the authenticity of Constitution Amendment No 19, whether in its original or revised form, may linger.

The new text is still incomplete: There are discrepancies between this new version of the Constitution Amendment No 19 Act and the Bill passed by Parliament in February 2009 – all of them involving omissions of text that was in the Bill:

• it leaves out the provision that was in the Bill stating that GPA Article 6 will guide the constitution-making process – nor does it set out Article 6 as a separate Schedule
• it leaves out the provision that was in the Bill stating that GPA Article 14 will guide the conduct of traditional leaders – nor does it set out Article 14 as a separate Schedule
• while the General Notice states that, for the information of the public, the GPA is published together with the new re-gazetted Amendment, in fact it is not presented as it was in the Bill, i.e. as a separate Schedule 11 expressly stated to be for the information of the public; it is just tacked on at the end of Schedule 8 [but clearly not part of Schedule 8] without any explanatory statement of its status.

The new text is not clearly identified as a revised version: There is nothing in the text of the newly published Constitution Amendment No. 19 Act itself that clearly identifies it as different from the original 2009 version. Nor is it stated that it is the official version from now on. This could cause confusion in courts, in law libraries, for students and for anyone with an interest in the contents of the Amendment. It would have been better to have included a note on the first page of the new version clearly identifying it as an official revised version of Amendment No. 19 and to have indicated where revisions are made to the text.

Constitution of Zimbabwe Now Has to be Updated

Unless/until further corrections are made, the effect of this new version of Constitution Amendment No. 19 is that the Constitution itself must now be brought into line with what the new version says. In other words, the Constitution must now be read with the full text of the GPA added to it immediately after Schedule 8 and with two minor corrections that have been made to section 115. [Updated Constitution available on request.]

New Amendment No. 19 has No Impact on Constitution-Making Process

The gazetting of this new version of Constitution Amendment No. 19 will have no impact on the constitution-making process. In fact, it contains no special provision for the process, as the original Bill’s provision about the process has been omitted. [Even if this provision as worded in the Bill had been included, it would not have affected the process, because it merely says that GPA Article 6 would “guide” the process – which would not have given Article 6 and its time-frame the status of mandatory, legally binding rules to be strictly applied. The GPA Article 6 itself uses mandatory language, e.g. “the following time-frames shall apply”. So, if MPs considering the Bill in February 2009 thought that Article 6 and its time-frame should have full legal force to be followed to the letter by all parties, they should have insisted on the Bill being amended during its passage through Parliament to make that perfectly clear.]

No Impact on Law Relating to Traditional Leaders

The new version of Constitution Amendment No. 19 will have no impact on the law covering the conduct of traditional leaders, because the new version of the Amendment contains no special provision on that subject. [And, as with the constitution-making process, even if the original Bill’s provisions had been included in the new version, they would only have been guides, not a legally binding code of conduct for traditional leaders.]

Lessons to be learned

The undesirability of fast-tracking Bills: The controversy over Constitution Amendment No. 19 would probably not have arisen if the Bill had not been fast-tracked through Parliament under pressure from SADC and its then facilitator, South African President Thabo Mbeki. Fast-tracking meant that time for debate and mature reflection was limited. Had more time been allowed, it is possible that amendments to the Bill would have been made in the normal way, resulting in provisions of no legal force being either eliminated or being reworded so as to be legally binding.

Proper Parliamentary procedures should always be followed: Changes to a Bill should always be initiated by the normal Parliamentary process of proposing appropriate amendments during the Bill’s Committee Stage. If that is done, there will be no room for argument as to what Parliament has passed, and confusion of the sort that has surrounded Constitution Amendment No. 19 will be avoided.

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