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Sharon Hofisi:Legal Letters

The process by which the Zimbabwean Constitution is amended is laid out in Section 328 of the Constitution. A Constitutional Bill essentially seeks to amend the Constitution.Section 328 is couched in the peremptory in the roles of Parliament in amending the Constitution. An Act of Parliament that amends this Constitution must do so in express terms. The procedure that is laid down in Section 131 of the Constitution on Parliament’s legislative authority must be adhered to.

In terms of Section 328 (3), a Constitutional Bill may (in legal parlance, the cumulative effect of this word is that this is discretionary) not be presented to the two houses of Parliament unless the Speaker (of Parliament) has given at least 90 days’ notice in the Gazette of the precise terms of the Bill. This was done by the Speaker on January 3, 2017 under General Notice 1/ 2017.

The legal effect of this publication was to establish the Bill, known as H.B. 1, 2017; and to nullify the publication of Bill H.B. 15, 2016 relating to the signature of the Clerk of Parliament on December 23, 2016 that was done under General Notice 434 /2016.

Section 131 (2) (a) and (b) of the Constitution states that an Act of Parliament is a Bill which has been presented in and passed by both Houses of Parliament; and assented to and signed by the President. Parliament thus published it on January 3, 2017. The 90 days would end in early April if the discretionary period is followed before the Bill can be presented in the two Houses of Parliament.

The Bill is known as Constitution of Zimbabwe Amendment (No.1) – H.B. 1-2017. For starters, our Constitution is usually identified by many as Constitution of Zimbabwe Amendment (No. 20) Act 2013. This is improper and the first amendment attests to this effect.

The Constitution should only be understood as the Constitution of Zimbabwe, 2013. The reference to Amendment (No. 20) Act was meant to explain that the old Lancaster House Constitution had been amended a record 20 times.

Amendment No. 20 was the last amendment that saw Parliament exercising its legislative authority so that we would discard the old Constitution and adopt a new one.

The preamble of the Bill, however, continues to refer to the Constitution as Amendment (No.20) Act and the amendment aspect must be expunged. As such, the short title and the interpretation section should also simply refer to the Constitution as the Constitution of Zimbabwe, 2013.

The amendment relating to the designation of the presiding judges of the Administrative and Labour Courts as well as the amendment of Section 181 of the Constitution is not above board since there is no constitutional provision that describes the subordinate courts of the High Court to include the Labour and Administrative Court.

Section 162 speaks about judicial authority as vested in the people and vested in the courts, including the Administrative and Labour Courts.

Section 163 clearly states that there is a Judge president of the High Court, the Labour Court, and the Administrative Court. The said section clearly states that the Judge Presidents of the three courts are in charge of those courts.

The Speaker’s invention of a doctrine of “clear implication” is thus difficult to follow in the absence of a judicial pronouncement to this effect. Section 171 (1) (b) and Section 174 (c) simply refer to courts subordinate to the High Court.

There are clear subordinate courts such as the Fiscal Court. The doctrine of “clear implication” is thus unconstitutionally invented firstly because; in a constitutional democracy such as Zimbabwe, the Judiciary possesses the interpretative role of the grundnorm, the Constitution.

Secondly, the case that occasioned the amendment related to the appointment of the Chief Justice. Thirdly, neither Chapter 8 on courts nor the definitions section, Section 332, describe what a subordinate court is.

Fourthly, the amendment of the designation of judges of the Administrative Court could have detrimental effects to the need to involve the people from whom the legislature derives its legislative authority. The constitutionality of the amendment in this regard can only be meaningful if either the courts of law are involved or the people decide on this through a referendum.

Fifthly, the amendment was not occasioned by the case of Romeo Zibani v The President of Zimbabwe and 7 Ors. That case was only dealing with the appointment of the Chief Justice (CJ). The model of appointing the CJ appears settled: it could be executive or non-executive. There is thus need for courts to interpret the Constitutional provisions in this regard.

On the amendment to Section 180 relating to the appointment of judges, the Zimbabwean President can do so for the Chief Justice without event since he enjoys the benefits of three worlds in Zimbabwe in terms of how laws are made, interpreted and enforced.

The CJ is the Chief Judge and also occupies an important role in the judiciary as an arm of Government.

The President is a member of the Legislature in terms of Section 116 of the Constitution, which states that the Legislature of Zimbabwe consists of Parliament and the President acting in accordance with provisions of Chapter 6, which governs the Legislature and the exercise of legislative authority.

To that extent, he is involved in the law-making process. He used to appoint judges from a list of those provided by the Judicial Service Commission (JSC), in terms of the now-to-be repealed Section 180 of the Constitution.

The nub of the new Section 180 (2) captures the rationale of the executive appointment of judges who double up as office bearers in the Judiciary: the Chief Justice and the Judge President. This is because the envisaged juridical model speaks of appointment “after consultation” with the JSC and not “in consultation” with it.

The former speaks to the need to involve the JSC formally or informally, whereas the latter obliges the President to consult with the JSC.

In practical effect, although the President is not involved in the interpretative function of judges, the judges who are office bearers also have governmental functions in terms of the separation of functions/powers/parties doctrine. The President as the head of Government, and head of State can appoint office bearers in the Judiciary.

The President in terms of our Constitution has a bigger role than Parliament when it comes to representation of the people. This is because the President of Zimbabwe is directly elected jointly by registered voters throughout Zimbabwe in terms of Section 92 (3) of the Constitution.

On the contrary, senators are either elected on proportional representation basis or through provincial assemblies.

The Parliamentarians are appointed by secret ballot from the 210 constituencies. He has executive functions that include making appointments which the Constitution or legislation requires him/her to make in terms of Section 110 (2) (d). The Zibani case that occasioned this Amendment added impetus to the need for the President to appoint the judges in terms of the Constitution.

Because of his direct appointment by the people, the President can appoint extraordinary judges who perform governmental functions and derive their judicial authority from the people, although they are not directly elected by the people.

As such, the envisaged amendment on the CJ would be in tandem with the appointment processes in other executive systems such as the Westminster and American systems when it comes to the expanse of the President’s control over other arms of Government.

What may pose serious difficulties are the appointments of the Deputy Chief Justice (DCJ) and Judge President (JP) of the High Court. Although the offices are very significant from a separation of functions perspective, the Zibani precedent does not seem to clothe the President with a blessing from the courts of law in relation to an amendment in this regard.

Section 180 (2) makes it mandatory for the President to appoint the DCJ and the JP after consultation with the JSC.

Section 180 (3) speaks about the need for the appointments to be consistent with the recommendations of the JSC, failure of which the Senate should be informed. The National Assembly is excluded and this creates a serious problem on the role of the Legislature. The manner in which senators are appointed may render the process of informing them a political sham that does not remedy the failure to take the recommendations of the JSC.