ConCourt Nullifies Constitution Amendment No.1 Act: What Now?

Honourables Innocent Gonese and Jessie Majome, Members of Parliament (MPs) in the 8th Parliament approached the Constitutional Court for a declaratory order on the basis that the Senate had failed to abide by the provisions of section 328(5) of the Constitution[1] when it passed Constitutional Amendment No.1 of 2017 in Parliament on 1 August 2017.

Section 328(5) of the Constitution requires that a Constitutional Bill be passed by two-thirds of the membership of each House present and voting in order to be considered as duly passed. While the applicants had sought a finding that both Houses had failed to abide by the dictates of section 328(5) of the Constitution, the Constitutional Court found that the applicants had not proved on a balance of probabilities that the National Assembly had failed to discharge its onus. The Court also made the finding that the invalidity of the proceedings of the Senate did not affect the validity of the proceedings of the National Assembly.

The Order of the Court can be summarised thus:

  1. The passing of the Constitutional Amendment (No.1) Bill by the Senate on I August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, and it is declared invalid;
  2. The declaration of invalidity shall have effect from the date of the Order (viz. 31 March 2020), for a period of 180 days: the Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution in section 328(5) of the Constitution within 180 days, failing which the declaration of invalidity shall become final.

Some Issues:

The Bill was passed by the 8th Parliament. Ordinarily, matters of one Parliament end with the life of that Parliament. In other words, the 9th Parliament cannot deal with matters that remained unfinished and were still on the Order Paper of the 8th Parliament. This is because that business lapses at the end of the life of the particular Parliament.

Section 147 of the Constitution provides:

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.

The question which was not canvassed by the Court is whether this Parliament can validly deal with a Bill that was initiated and dealt with by the previous Parliament, in the light of section 147 of the Constitution.

Section 139 of the Constitution provides:

  • The proceedings of the Senate and the National Assembly are regulated by rules known as Standing Orders, which are made by the Houses individually or jointly on the recommendation of the Committee on Standing Rules and Orders.

Standing Orders of both Houses proceed on the basis that unfinished business lapses on the dissolution of Parliament. In the circumstances a new Bill would make sense.

The Constitutional Court Order is premised on section 175(6) of the Constitution, which provides that when deciding on a constitutional matter, a court may:

  1. declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;
  2. make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity…

The Court reasoned that the invalid proceedings of the Senate could be severed from the valid proceedings of the National Assembly. The question arises as to whether an order that acknowledges the invalidity of proceedings by one Parliament and then allows a later Parliament to “correct” the invalidity is just and equitable, in the light of the peremptory provisions of section 147 of the Constitution.

[1] Constitution of Zimbabwe Amendment (No.20) of 2013

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