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Legal implications of nullification of Speaker's election - Bill Watch 12/2011
Veritas
March 28, 2011

Nullification of the Election of the Speaker: The Consequences

On 10th March the Supreme Court set aside the 2008 election of Mr Lovemore Moyo as Speaker of the House of Assembly on the ground that the election had not been conducted by a secret ballot as required by Standing Orders. Since then several lawyers have put forward their views on the consequences of the Supreme Court's decision. In this Bill Watch we shall attempt to clarify the consequences.

The Supreme Court's decision:

• has important constitutional effects: does the decision invalidate everything done by the House since Mr Moyo's election?
• affects Mr Moyo personally: does he revert to being Member of Parliament for Matobo North, and must he return the pay and benefits he received as Speaker?

We shall deal with each in turn.

Wider Significance of the Decision

Does the Supreme Court's decision mean that everything Mr Moyo did while in office as Speaker must be regarded as invalid? Does it mean that Acts of Parliament passed while he held the office of Speaker must now be treated as null and void - including Constitution Amendment No. 19 setting up the Inclusive Government and the Budget legislation for the years 2009, 2010 and 2011?

Fortunately, the answer is: No.

• The Supreme Court's decision was expressed in the following simple words: "the election of the second respondent [Mr Lovemore Moyo] as Speaker is hereby set aside". As the order was not backdated to August 2008 it must be presumed to operate prospectively from the 10th March 2011, the date it was handed down by the Supreme Court.
• The Chief Justice said in his judgment that the decision would have "no draconian consequences", something he would not have said if he thought he was undoing all Parliament's work over the last two and a half years and bringing the Inclusive Government to an end.
• There is ample legal precedent, mainly in the United States but also in Commonwealth jurisdictions, for accepting as valid the acts of a public officer whose appointment or election is later found to have been invalid. This doctrine, which is known as the "de facto public officer doctrine” and is based on public policy and justice, protects the State from the chaos and uncertainty that would ensue if actions taken by a person apparently occupying an official position could later be invalidated if it turned out that the person was not lawfully appointed to that position.

There would undoubtedly be chaos and uncertainty in Zimbabwe if this Parliament's Constitution Amendment No. 19 and other Acts were to be regarded as invalid. For example:

• acts of the inclusive government and its ministers would be null and void.
• the constitution-making process would have no legal basis and might have to be scrapped.
• changes to the citizenship law by Constitution Amendment No. 19 would be nullified.
• many payments made out of the Consolidated Revenue Fund, in reliance on Appropriation Acts, including the salaries and allowances of Ministers and MPs, would be invalid because made without the authority of Parliament.
• changes to the tax laws by Budget legislation over three years would be reversed to the prejudice of taxpayers [e.g. increases in the income tax threshold and the tax-free amount for bonuses].

[Note: The Clerk’s statement of 22nd March expresses the opinion that decisions made by Mr Moyo while he was de facto Speaker “remain valid for legal and other consequences.”]

Personal Consequences of the Decision

The Matobo North Seat Mr Moyo was a Member of the House of Assembly representing Matobo North when he was purportedly elected Speaker. In terms of section 41(1)(g) of the Constitution a member's seat "shall become vacant ... if he becomes Speaker". If, therefore, Mr Moyo had been validly elected as Speaker he would have ceased automatically to be a member of the House. But according to the Supreme Court his election was not valid, so he cannot be said to have vacated his seat in terms of section 41(1)(g). It might have been different had he formally resigned his seat, but there is no suggestion that he ever did so. Things might also have been different had there been a by-election in Matobo North to fill the purported vacancy, but there has been no such by-election. Mr Moyo is therefore a member of the House of Assembly. [Note: So far the Clerk of Parliament has stuck to his initial view that Mr Moyo has not reverted to his pre-Speaker position as MP for Matobo North - notwithstanding advice to the contrary given to him by the Attorney-General, with a supporting opinion from Professor Lovemore Madhuku.]

Remuneration Received by Mr Moyo as Speaker - As to the remuneration paid to Mr Moyo, it was paid in good faith and, apparently, accepted in good faith. In return for the remuneration Mr Moyo performed the duties of Speaker even though he was not entitled to do so. If the remuneration was paid in error it was an error of law and not of fact, and probably cannot be recovered from Mr Moyo. Different considerations apply to the benefits enjoyed by Mr Moyo as Speaker: his official residence and the vehicles with which he was supplied. Since he is not the Speaker he no longer has a right to them.

Election of a New Speaker and the Role of the Clerk of Parliament

Under section 39(1) of the Constitution, whenever the office of Speaker is vacant the House of Assembly must not transact any business until someone has been elected to fill the office. The election is presided over by the Clerk of Parliament in terms of the Standing Orders of the House.

Press reports suggest that the Clerk of Parliament has arrogated the power to decide whether or not Mr Moyo is a member of the House of Assembly and entitled to vote in the election of a new Speaker. Legally he has no power to decide the question, but since he will preside over the electoral process he will have to give a ruling on Mr Moyo's eligibility to vote, if the question is raised.

More questionable is his decision to defer the sitting of the House, which was to resume on 22nd March. He had no power whatever to do that. Also, his deferral of the Speaker's election to a later date "to be announced" leaves it unclear who is going to fix that date and recall the House. The Clerk has no power to do so. Perhaps the Committee on Standing Rules and Orders can: under section 57(8)(c) of the Constitution it is responsible for "considering and deciding all matters concerning Parliament". This is affirmed by House of Assembly Standing Order 14(1), which states that “There shall be, for the life of Parliament, a Committee to be designated the Committee on Standing Rules and Orders which shall consider and decide all such matters concerning Parliament as it shall deem fit.”

Should the Courts Have Interfered?

The whole contretemps might have been avoided if the courts had taken the same line adopted in previous cases involving parliamentary privilege: that the power of Parliament to regulate its own practices and procedures is accepted and sustained by all enlightened countries, and the courts should not interfere in them. The election of a Speaker seems pre-eminently to be one of the procedures of Parliament that is beyond the jurisdiction of the courts. Justice Patel however considered that because the Speaker’s election is regulated by section 39 of the Constitution the courts were able to scrutinise it to ensure that it had been constitutionally carried out. Whether he should have gone on to do so, however, is questionable. It might have been better if he had heeded the wise words of South African Constitutional Court judge Ngcobo in a 2006 case:

“Parliament has a very special role to play in our constitutional democracy - it is the principal legislative organ of the State. With due regard to that role it must be free to carry out its functions without interference . . . Indeed the parliamentary process would be paralysed if Parliament were to spend its time defending its legislative process in the courts. This would undermine one of the essential features of our democracy: the separation of powers. The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings . . . Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority.”

This is however immaterial now because the courts have ruled on the question of the Speaker’s tenure and the consequences arising from that decision have now to be faced.

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