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Update on the Clerk of Parliament case - Bill Watch 12/2012
Veritas
March 27, 2012
Update
on the Clerk of Parliament Case
Background
Motion
for removal of Clerk in House of Assembly
In early December
2011, Hon Tshuma, MDC-T MP for Hwange Central, gave notice of a
motion accusing the Clerk of Parliament,
Austin Zvoma, of serious misconduct and asking the House to remove
him from office in terms of section 48(2) of the Constitution.
Comment: In
fact, section 48(2) does not say that the House can remove the Clerk.
What it says is that the Clerk cannot be removed from office “unless
the House of Assembly resolves ... that he should be removed from
office”. This is not a provision for summary dismissal by
the House. There had been no previous proceedings allowing Mr Zvoma
an opportunity to defend himself against the allegations or explain
his position, no impartial inquiry and no finding of guilt. As section
48(1) of the Constitution entrusts the appointment of a Clerk to
Parliament’s Committee on Standing Rules and Orders, and as
there is a legal principle that he who hires can fire [and as the
failure to give Mr Zvoma a hearing before trying to dismiss him
was an obvious breach of the rules of natural justice] the motion
against Mr Zvoma, in the form proposed, was ill-conceived. The Committee
on Standing Rules and Orders [CSRO] had not been involved at all.
Clerk
appeals to High Court
Mr Zvoma promptly
lodged an application in the High Court challenging the procedure
adopted by the MP as constitutionally and legally invalid. When
it became clear that the MP was determined to proceed notwithstanding
the court application, Mr Zvoma then lodged another urgent application
in the High Court seeking a temporary interdict stopping the Parliamentary
proceedings until the High Court’s ruling on his main challenge.
Debate,
however, went ahead
On 14th December,
before the application for an interdict could be heard by a judge,
the motion was introduced in the House and the Speaker overruled
an objection from ZANU-PF MPs based on the Standing Order prohibiting
discussion of matters that are sub judice. The Speaker countered
this, saying mere lodging of an applicant’s papers with the
court did not activate the sub judice rule. [For judge’s ruling
see below] The Speaker also refused ZANU-PF MPs a request to recuse
himself from chairing the debate because he was an interested party.
[Text of Speaker’s ruling on sub judice and recusal available
from veritas@mango.zw]
ZANU-PF
walkout
The next day,
15th December, ZANU-PF MPs walked out of the House in protest.
Motion
for dismissal amended
After the ZANU-PF
walkout Hon Tshuma amended his motion for the Clerk’s dismissal
to a motion which, although it still predicated Mr Zvoma’s
guilt without his having had a hearing, instead of calling for outright
dismissal, called for the appointment of a special 5-member committee
to advise the House on what disciplinary action should be taken
against him. The amended motion was passed that same afternoon of
15th December.
High Court hearing
and order nullifying House’s motion On 21st and 30th December,
Justice Bere, heard legal argument on Mr Zvoma’s urgent application
for a temporary interdict, and on 20th January the judge issued
an order declaring that, pending the decision on Mr Zvoma’s
main application, the motion passed by the House on 15th December
was “null and void and of no force and effect”. This
effectively blocked implementation of the motion for the time being.
[Comment: This
may look like trespassing on Parliament’s exclusive preserve
in breach of the principle of separation of powers. One of the arguments
submitted by the Speaker et al’s defence lawyers was that
the courts should not interfere with Parliamentary business and
this was backed by a “certificate of privilege” –
a document signed by the Speaker informing the court that the case
concerned a matter of “the privilege of Parliament”
in terms of section 6 of the Privileges, Immunities and Power of
Parliament Act. The judge dealt with this point in his judgment
furnished later – see below.]
Judge’s
Reasons for Stopping Attempt to Dismiss Clerk of Parliament
The judge’s
written judgment has now been released [available from veritas@mango.zw].
His views on the legal issues are emphatically in favour of the
arguments raised by Mr Zvoma and his lawyers and against the course
of action adopted by the proposer of the motion and by the Speaker.
Of particular interest are the following rulings:
Speaker’s
“certificate of privilege” did not oust the jurisdiction
of the High Court
The judge ruled
that the “certificate of privilege” lodged by the Speaker,
claiming the case concerned a matter of “the privilege of
Parliament” and as such not a matter for a court, did not
comply with the legal requirements for such certificates. It was
not sufficiently specific or detailed. Also, the court would not
assist Parliament to “severely dislocate its own standing
orders” . In support of this ruling Justice Bere cited a 1989
Supreme Court decision in which then Chief Justice Dumbutshena also
rejected an inadequate certificate of privilege when the court invalidated
a House of Assembly decision imposing a fine for contempt of Parliament
on former Rhodesian Prime Minister Ian Smith, then an MP.
Speaker’s
ruling on sub judice objection incorrect
Standing Order
62 prohibits MPs from referring in debate “to any matter on
which a judicial decision is pending”. The Speaker had ruled
that the mere lodging of a court application did not mean that a
judicial decision was immediately pending; that would make it far
too easy for anyone to block Parliamentary proceedings. A judicial
decision could be said to be pending only when a case has been argued
and the judge’s decision is awaited. Justice Bere disagreed,
but without citing precedent or going into detail.
[Comment: This
aspect of the judgment may prove controversial; it certainly seems
to make it unduly easy to engineer a temporary reprieve from inconvenient
Parliamentary proceedings merely by lodging a court application.]
Who can
initiate disciplinary proceedings against the Clerk?
Justice Bere
concluded that it is for the Committee on Standing Rules and Orders
[CSRO] which is responsible for appointing the Clerk, to initiate
disciplinary proceedings, hold an inquiry and decide whether the
Clerk is guilty of misconduct; it is not for individual MPs to propose
motions for dismissal in the House independently of the CSRO. Even
the amended motion passed by the House, he said, was legally incompetent
because it did not allow Mr Zvoma to contest the validity of the
allegations against him.
Meaning
of section 48(2) of Constitution
Justice Bere
ruled that a section 48(2) resolution can only be passed after a
guilty finding by the CSRO following a proper inquiry observing
the rules of natural justice and complying with the regulations
setting out the conditions of service of Parliamentary staff.
Separation
of powers
The judge rejected
suggestions that judicial intervention in this case would breach
the principle of separation of powers and the general rule that
courts do not interfere in the internal processes of Parliament.
He described as out of context references by the Speaker et al’s
lawyers to two previous court decisions [in the Bennett and Mutasa
cases] upholding that general rule. This was because those cases
had both involved MPs charged with contempt of Parliament, and even
those two decisions recognised that the courts will interfere “where
Parliament’s conduct exceeds the bounds of reasonable justification”.
The present case involved a professional employee of Parliament
in relation to whom the House of Assembly’s freedom of action
was clearly constrained by the Constitution. He said the processes
adopted “scream for interference by this court”. The
court’s decision should, the judge said, “be seen as
a desperate clarion call by the court to insist on Parliament conducting
its affairs above board”.
What
now?
Judgement
considered by Committee on Standing Rules and Orders
At its meeting
on 12th March the CSRO considered the impact of Justice Bere’s
judgment. It was decided that the presiding officers and Parliament
would accept the judgment and act accordingly. Mr Zvoma and his
lawyers would be informed of the CSRO’s acceptance and asked
to withdraw Mr Zvoma’s main application challenging the procedures
in the House given the CSRO acceptance of the Judges ruling that
any action must be initiated in the CSRO.
No CSRO action against Mr Zvoma at this stage
Contrary to
press reports, the CSRO did not decide to initiate disciplinary
action against Mr Zvoma along the lines indicated by Justice Bere
in his judgment.
Complainants
not giving up
Since the meeting,
the MP who proposed December’s motion seeking Mr Zvoma’s
removal from office, has said he will not let the matter drop and
that he has accordingly reformulated his allegations against Mr
Zvoma in a formal complaint addressed to the CSRO. Mr Zvoma has
said he would welcome the opportunity to refute the allegations
against him. The CSRO is not expected to deal with this complaint
until Mr Zvoma’s remaining court application has been withdrawn.
Final
Comment
It is unfortunate
that those unhappy with Mr Zvoma as Clerk of Parliament chose to
adopt a procedure which from the start was constitutionally and
legally dubious. It is important that Parliament follows the Constitution
and its own Standing Orders; and also that it does not disregard
principles of justice and fairness – which was done by taking
the matter initially to the House, where Mr Zvoma cannot have a
hearing. It is hoped that the CSRO can now sort the matter out satisfactorily
without further resort to the courts. To open the door to court
interventions can only serve to detract from the authority and reputation
of our Parliament.
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