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Supreme Court decision on Private Members Bills, & Dabengwa and ACHPR election cases – Court Watch 5/2013
Veritas
May 30, 2013

Supreme Court Decision on Private Members Bills

Supreme Court Nullifies Private Member’s Urban Councils Amendment Bill

Background

In October 2011, in accordance with Standing Orders, Parliament’s House of Assembly passed a resolution giving MDC-T MP Tangwara Matimba permission to introduce a Private Member’s Bill to amend the Urban Councils Act. Hon Matimba in due course introduced his Bill on 28th February 2012. Its main purpose was to reduce drastically the powers of central government, through the Minister of Local Government, Rural and Urban Development, over municipal and town councils. The Bill received a non-adverse report from the Parliamentary Legal Committee, signifying that the PLC saw no inconsistency with the Constitution. But the Minister of Local Government, Rural and Urban Development asked the Speaker and the Clerk of Parliament to stop the Bill, arguing that for the duration of the GPA, Article 20.1.2(c) of the GPA, as enshrined in Schedule 8 to the Constitution by Constitution Amendment No. 19, allowed only Government Ministers to introduce Bills in Parliament, and took away the normal constitutional right of private members to do so. [For a legal counter argument to this see Bill Watches 20 and 21/2012 of 15th May 2012.]

When this request was turned down, the Minister took his argument to the Supreme Court and the Speaker, citing the Standing Order embodying the sub judice rule, suspended further discussion on the Bill pending the Supreme Court’s decision.

The Supreme Court hearing

On 24th January, a five-judge bench of the Supreme Court [Chief Justice Chidyausiku and Justices Ziyambi, Garwe, Gowora and Omerjee] heard the lawyers for the applicant [Minister Chombo] and the respondents [Parliament, the Speaker, the Clerk and the proposer and seconder of the Bill] argue both sides of the case, and reserved judgment.

The Supreme Court’s decision

In a judgment dated 20th May the judges unanimously declared that the introduction of the Urban Councils Amendment Bill was null and void because it was prohibited by article 20.1.2 of the GPA as set out in Schedule 8 to the current Constitution. [Judgment available from veritas@mango.zw]

Speaking for the court, Justice Garwe accepted the argument put forward on behalf of the Minister of Local Government, Rural and Urban Development, Hon Chombo, that “... since the country was going through a transitional period which was to be steered by three political groupings, the intention [of Article 20.1.2 of the GPA] was that private members would not be permitted to upset the inclusivity of decisions.”

Justice Garwe went on to say, however, that the right of private members had not been removed entirely: “I would only qualify these remarks by emphasising that the prohibition is restricted only to proposed legislation that deals with government policies and programmes. The corollary to this therefore is that whilst a private member has no right to introduce a Bill that deals with government policies and programmes during the subsistence of the Interparty Political Agreement, he is however still empowered to do so ... where he introduces a Bill that does not deal with such policies or programmes.”

Comment: it is extremely difficult to see what sort of Bill the court envisaged as still permissible, because any Bill enacted into law would necessitate government enforcement.

Effect on other MDC-T Private Member’s Bills

This ruling adversely affects both the other Private Member’s Bills that have been initiated by MDC-T Chief Whip Innocent Gonese: the Bill to repeal section 121(3) of the Criminal Procedure and Evidence Act and the POSA Amendment Bill. Both deal with matters of Government policy. Both must now be dropped.

Comment: Fortunately, this decision will be of no lasting significance, because it is based on an extraordinary GPA provision that has no parallel in the new Constitution. But it does mean that there is now no chance at all of any pre-election reforms being brought about by Private Member’s Bills. A decision the other way might conceivably have allowed just enough time for such Bills to be rushed through over ZANU-PF objections in the six weeks that remain of the life of the present Parliament.

Opinion: The Supreme Court’s decision does nothing to dispel the widespread notion that Parliament as an institution has been unduly subject to the control of the Executive. Those who had hoped for a straightforward application of the Constitution’s explicit provision giving Private Members the right to introduce Bills into Parliament [Schedule 4, paragraph 1(c)] will be disappointed by the court’s willingness to read into the general words of GPA Article 20.1.2, as incorporated in Schedule 8 of Constitution Amendment No. 19, an implicit limitation to this right. In particular, as it is a basic rule for interpreting a constitution that one provision should not be regarded as overriding another unless the intention to override is expressly stated, which in this case it was not [more detail in Bill Watch 20/2012 of 15th May 2012.]

It is hoped that the new Constitution’s provisions for the separation of powers is strong enough to allow Parliament to fulfil its legislative and oversight functions without being subjected to Executive interventions and without so many appeals to the Judiciary.

Case against Zimbabwe Election Commission to Provide Voters Roll

ZAPU leader Dumiso Dabengwa vs ZEC

Early this month, frustrated by the failure of all his attempts to obtain an electronic copy of a ward voters roll for testing its accessibility for purposes of analysis ahead of the coming elections, ZAPU leader Dumiso Dabengwa filed a High Court application citing the Zimbabwe Electoral Commission [ZEC] as respondent. The filing of the application resulted in a meeting between Mr Dabengwa’s lawyer and ZEC chairperson Justice Makarau and commissioner Professor Feltoe, following which the lawyer was eventually supplied with an electronic copy of the required ward voter’s roll on a CD against payment of the prescribed fee of $5,00.

The CD contains the voter’s roll in PDF format, which is readable and analysable [and an improvement on the JPEG format in which electronic copies were supplied on previous years]. However, the CD came together with a letter from the Registrar-General to Mr Dabengwa’s lawyer personally, imposing conditions on what can be done with the information on the CD – e.g. that it cannot be reproduced, and its contents must not be misrepresented, and also drawing attention to criminal penalties for misuse of the CD. It seemed clear the conditions were imposed by the Registrar-General, not by ZEC. Mr Dabengwa’s lawyer has protested to ZEC about these conditions and asked ZEC for clarification. He is awaiting a reply. Meanwhile the High Court application is on hold.

Comment: the conditions laid out in the Registrar-General’s letter – especially the vague term “must not be misrepresented” – would seem to set a unacceptable precedent.

Another Case Requiring a Response from Government and ZEC

ACHPR Measure to Allow Diaspora Vote in the Coming Elections

In Constitution Watch 22/2013 of 16th March we reported that the African Commission on Human and Peoples’ Rights [ACHPR] had passed a provisional measure allowing exiled Zimbabweans and Zimbabweans living abroad to vote in the Referendum on Saturday 16th March and in the general elections to be held thereafter. Specifically, the measure directed the Zimbabwe government to provide all eligible voters living outside Zimbabwe with the same voting facilities it affords to Zimbabweans working abroad in the service of the government.

The ACHPR decision upheld a complaint by Zimbabweans currently based outside the country that they were being denied their rights, and ruled that the applicants had made out a prime facie case that the present position was in breach of the African Charter on Human and Peoples Rights.

Provisional measures of the ACHPR are binding on a State to stop or prevent a human rights violation. The State concerned is requested to comply until a final decision is taken in the case, and its Government is obliged under AU rules to report back to the ACPHR on its implementation of the provisional measure.

The facilities currently available to Zimbabweans working abroad in the service of the government, and to their spouses, are those provided by the postal vote machinery detailed in Part XIV of the Electoral Act.

There has been no evidence of State recognition or reaction to this ruling. No postal voting facilities were provided for the Referendum, even to the Government officials entitled to them under the Electoral Act. The excuse was lack of time to implement the time-consuming procedures involved.

It remains to be seen whether the Electoral Amendment Bill that is currently being discussed by the GPA negotiators, but still very much under wraps, will comply with the ACHPR ruling by extending the postal voting provision to registered voters in the Diaspora.

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