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Supreme Court Case to Stop Private Member's Bill: Part II - Bill Watch 21/2012
May 15, 2012

Part II

Weakness of Case

Part 1 [Bill Watch 20/2012 of 15th May] covered the background to the case the Minister of Local Government, Rural and Urban Development has taken to the Supreme Court to stop the Urban Councils Amendment Bill. The Minister’s argument in his submission to the court – that Article 20.1.2(c) of the GPA as incorporated into the Constitution by Amendment 19 prohibits Private Member’s Bills – was outlined and counter-arguments were put forward to show the weakness of the Minister’s case.

There are additional aspects of the case – the undesirability of bringing a case to court while a Bill is being considered by Parliament and the possible effect on other legislation including other Private Member’s Bills.

No Precedent for Courts to Intervene while Parliament Considers a Bill

To avoid infringing the principle of separation of powers, and to avoid unnecessary and undesirable conflict between Legislature and Judiciary, the courts should not interfere in the workings of Parliament. There used to be strict adherence by the courts to the principle that Parliament has absolute control over its internal proceedings which cannot be interfered with by the courts. More recently there have been several cases challenging Parliamentary decisions post hoc: as in the Mutasa and Bennett contempt of Parliament cases where the outcome was appealed not during the process [the Supreme Court did not overrule Parliament’s decision]; and in the General Laws Amendment Act of 2002 case [when the Supreme Court did nullify the Act, but this was not the same as interfering while the Bill was going through Parliament]. The recent Zvoma case, in which a High Court judge issued an order provisionally nullifying a House of Assembly resolution, concerned an employee’s [the Clerk of Parliament] right to due process and did not interfere with Parliament’s core functions and prerogatives.

Political Debate Belongs in Parliament not the Courts

Judicial intervention in the passage of Bills through Parliament would open the door to political manoeuvring through the courts rather than political debate in Parliament where it belongs. It would be a sad day if Parliamentarians opposed to any particular Bill could go to court for orders directing Parliament on whether or how to proceed on the Bill.

Why has the Minister gone to Court?

The Minister must be aware of the weakness of his argument on the constitutional provisions [outlined in Part I] and the lack of precedent for judicial intervention to nullify a Bill before it has been passed and gazetted as an Act. Why, then go to court?

Were his constitutional rights violated? In his submission to the Supreme Court the Minister claimed his fundamental human right to a fair hearing had been violated and this entitled him to approach the Supreme Court for relief under section 24 of the Constitution. He said he was denied the opportunity to put his views to the House when, after he and other Parliamentarians objected to the introduction of the Bill to no avail, he wrote to Parliament on 13th March setting out his objections. Because Parliament’s reply rejected his objections he claimed his rights to protection of the law and due process under section 18(1) and (1a) of the Declaration of Rights had been infringed.

As Parliament considered the Minister’s objection before rejecting it with carefully formulated reasons, the claim that due process has been denied is weak. Moreover, until the Bill is passed by Parliament, the Minister and his political colleagues will be free to express their views when the Bill is debated.

Was his motive to delay the Urban Councils Amendment Bill? This would seem a reasonable conjecture if the Minister is banking on the argument that the House of Assembly should not take the Bill further because its right to do so is sub judice. If he were to win the sub judice argument, it would take some time before the Supreme Court gets round to considering the case, and if, after hearing the parties, the Supreme Court postpones its judgment, which it usually does in constitutional cases, the Bill will be delayed even longer. As this Bill, if passed, would considerably curb the Minister’s powers over urban local authorities, most of which are controlled by MDC-T-dominated councils. There would be political benefits for the Minister and his party, bearing in mind up-coming elections, not to have such a Bill passed.

Was his motive to delay other Private Member’s Bills coming before Parliament? If he were to win the sub judice argument while the case is with the court, it would also benefit his party not to have the other Private Member’s Bills in the pipeline go through Parliament.

Implications of this Case for Other Private Member’s Bills

Although Minister Chombo’s application asks the Supreme Court for an interdict stopping further Parliamentary consideration of the Urban Councils Amendment Bill only, the argument he has put forward is applicable to Private Member’s Bills generally [see Part 1], and the court’s final ruling will serve as a precedent for other Private Member’s Bills. So too would a sub judice prohibition of further debate, although it is hoped this will not happen [see below]. Private Member’s Bills already tabled are:

Note: When Hon Gonese, the MDC-T Chief Whip, got leave from the House of Assembly to introduce his Bill to amend the Public Law and Order Act [POSA] in November 2009, it was well after Schedule 8 to the Constitution was enacted by Constitution Amendment No. 19 of 13th February 2009. There was no attempt to raise the constitutional argument based on Article 20.1.2(c) of Schedule 8 now put forward by Minister Chombo against the Urban Councils Amendment Bill. Nor was this argument raised when the debate started on Mr Gonese’ motion for leave to introduce the Private Member’s Bill to repeal section 121(3) of the Criminal Procedure and Evidence Act.

Any ruling in Minister Chombo’s case would have implications for other envisaged Private Member’s Bills, for example, Bills to replace or amend Media and Access to Information laws.

Importance of these Private Member’s Bills

These Bills, if enacted, would fill the gap created by the Government’s delay in producing Bills to achieve the changes called for in the GPA and Government policy documents such as STERP and contribute to meeting the requirements of the SADC Guidelines for Elections and ensuring acceptance of the result of the next elections as free and fair. They would enhance democracy and even before being passed they serve to draw attention to laws needing reform. As a general principle, Private Members Bills enhance democracy and are an important element of a dynamic parliamentary democracy.

Impact of the Court Case on Parliamentary Efficiency

The Urban Councils Amendment Bill is on the Order Paper for this week. If it comes up, it is inevitable that:

The sub judice rule will be raised in an attempt to stop further debate on the Bill on the ground that Standing Order 61 prohibits members from referring to “any matter on which a judicial decision is pending”.

The Speaker will have to give a ruling – when he gave a ruling on a sub judice objection in the Zvoma case in December 2011, the Speaker said that the Standing Order prohibition only comes into operation after a case has been heard and the judge is considering his or her ruling – but is not brought into operation by the mere lodging of a court application. He pointed out convincingly that otherwise it would possible to disrupt the work of Parliament merely by lodging an application, no matter how frivolous or vexatious. [It is true that Justice Bere in his later judgment disagreed with that ruling, but he did so in remarks that were not essential to his decision. So the judge’s view is not binding on the Speaker – or for that matter on the Supreme Court or any other judge. Which means the Speaker can be expected to follow his previous ruling if the occasion arises.]

It could affect all Parliamentary work – it would be most unfortunate if this case results in a precedent for using the sub judice rule to stop debate on a Parliamentary agenda item every time a dissatisfied MP lodges court papers challenging Parliament’s handling of the item. That might encourage flimsy applications to court simply to delay proceedings in Parliament. Parliament’s legislative work could be disrupted and bogged down. This was the danger to which the Speaker drew attention in his December ruling: “If the Speaker were to expunge motions on the Order Paper on the basis of someone having merely filed a court application, the House would never conduct any business.”

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