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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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