Pursuant to the annulment of Constitutional Amendment Number 1 by the Constitutional Court (the Concourt) what is the way forward for the Executive and/or Parliament with respect to Constitutional Amendment Number 2, already pending in Parliament?
Is Constitutional Amendment Number 1 in any way related to Number 2?
Amendment Number 1 inter alia introduced a greater role of the Executive in the appointment of senior members of the Judiciary. Section 3 removed public involvement in the appointment process of judges of the Labour Court by amending section 172 of the 2013 Constitution. Section 6 of the Act repealed and substituted section 180 of the Constitution on the appointment of judges, in particular the Chief Justice, the Deputy Chief Justice and the Judge President. Again public involvement was removed.
What is Contained in Amendment Number 2 that relates to Amendment Number 1?
Clauses 13 and 14 of Amendment 2 which relate to judicial appointments, are somehow linked to sections 3-6 of Amendment 1. The consequence is that in order for the current Bill to fit into the legislative scheme, in other words, for the relevant clauses to speak to the earlier amendment, there ought to be some tinkering done on the earlier Amendment, now an Act of Parliament in order to archive a synchronisation. It is a principle of drafting that the later drafts must fit into the legislative scheme. In other words, the new must fit into the pre-existing legislation, unless it amends it.
In our opinion there is an assumption under clauses 13 and 14 of the existence and legality of Amendment 1. This is only natural, given the fact that the judgment was handed down after the gazetting of Amendment 2.
What Are the Available Options?
We submit that the Executive, who are piloting the Amendment Number 2 through Parliament, could possibly take a variety of options/approaches:
- The Executive can decide to do nothing. The result will be that we revert to the 2013 Constitution as it was before Amendment 1. Quite an unlikely scenario, given the body language exhibited by the Executive.
- They can withdraw Constitutional Amendment Number 2 so that they can bring it back as a composite Bill incorporating the issues that were contained in Amendment Number 1. This could be an easier option.
- They can take the approach laid out in the Order granted by the Concourt, in terms of which the vote of the Senate can be taken again. As we opined in our last write-up this approach may raise a number of legal issues and questions. (We acknowledge that no appeal lies beyond the Concourt!); or
- They can proceed with the current pending amendment while addressing the issues raised by the Concourt judgment separately. This approach is also fraught with its own issues,
- They can incorporate the contents of Amendment 1 into Amendment 2. This may be possible, but may have to possibly take either of two forms:
- The Minister can bring a raft of amendments to the current Bill; or
- The Minister can just add provisions on senior appointments, to apply to the Chief Justice, Deputy Chief Justice and the Judge President.
Either of these options has its own legal ramifications. Constitutional amendments differ from other amendments where the Executive can chop and change the Bill as they Please. The Constitution has entrenched provisions with respect to its own amendment. That will therefore entail having to meet certain procedural requirements and timelines.
We do not know what the Executive will do. We are aware though that some of the issues in the Bill will have a bearing on the next harmonised elections, for instance: the issue of the proposed de-linking of the census and the delimitation of electoral boundaries is pertinent, as several electoral cycles have gone by without the redrawing of electoral boundaries to respect the principles enunciated in section 161 of the Constitution, in particular the following:
(3) The boundaries of constituencies must be such that, so far as possible, at the time of delimitation equal numbers of voters are registered in each constituency within Zimbabwe…
And the following:
(4) The boundaries of wards must be such that, so far as possible, at the time of delimitation equal numbers of voters are registered in each ward of the local authority concerned…
Section 161 seeks to uphold the principle of equality of votes. It is because of section 161 that we believe option d above may not sell, unless the matter is approached from a different perspective, which is also legally possible.
We wait with bated breath to see what position will adopt. The approach will reflect on the priorities of the Executive.
 Act No. 10/2017