News / National
Mnangagwa, Ziyambi defend constitutional amendment
06 Jun 2021 at 18:55hrs | Views
PRESIDENT Emmerson Mnangagwa and Justice minister Ziyambi Ziyambi have opposed a Constitutional Court application by lawyer Nqobani Sithole challenging the passing of the Constitution of Zimbabwe Amendment (No.1) Bill, arguing that legislative processes that led to the passage of the Bill were lawful.
Constitutional Amendment (No.1) Bill, among other outcomes, sought to allow the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without subjecting them to an open selection process and public interviews.
Mnangagwa and Ziyambi asked the court to dismiss Sithole's challenge with costs.
"I accordingly pray that the present application be dismissed with costs. It is an abuse of the process of this Honourable Court, and I urge the court to depart from the rule that in constitutional matter costs are not normally awarded," Ziyambi said in a notice of opposition dated 24 May.
In a thinly veiled attack on Sithole, Mnangagwa and Ziyambi said the applicant has no locus standi to question the conduct of Parliament.
"It is apparent that the applicant is a meddlesome individual who seeks to litigate on matters that do not affect him. The issue of standing before the court is undoubtedly one which requires the courts to give a wide and permissive reading of the law. It, however, must not extend to permitting persons like the applicant seeking academic and abstract opinions from the courts," Ziyambi said.
"There is no factual basis upon which the applicant has pleaded the existence of locus standi. He does not claim to be even a registered voter whose right to vote and to be represented in Parliament may be affected in any way by the conduct of the business of Parliament.
"The applicant works on the assumption that simply being a Zimbabwean citizen grants him the locus standi to question the conduct of parliament. I certainly consider that not to be sufficient and call upon the court to confirm that position," they said.
On 23 April, Sithole filed a ConCourt application challenging the passing of the first amendment, arguing that it violated section 147 of the constitution as it straddled two different lives of Parliament.
The Bill straddled the eighth Parliament which ran from 2013 to midnight on 29 July 2018, and the currently running ninth Parliament, whose tenure ends in 2023.
In terms of the law, the executive should have re-introduced the Bill in the current parliament, rather than carrying on from the previous parliamentary life since it had already lapsed.
Section 147 of the constitution reads: "On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses."
In his application, in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with rule 27(1) of the ConCourt rules, 2016, which cites the Parliament of Zimbabwe, Speaker of the National Assembly, President of Senate, Ziyambi and Mnangagwa, Sithole is seeking an order which declares that by passing Amendment (No.1) Bill on 6 April after it was carried over into the current life of Parliament from the previous one, Senate violated section 147 of the constitution.
Sithole, represented by Bulawayo-based law firm Ncube & Partners, is seeking a declaratory order on several issues, but first builds up his case by arguing:
"It is my sincere contention that the 1st respondent (Ziyambi) has failed to fulfil its constitutional obligation under section 131(2) as read with section 117(1) of the constitution to have the Constitution of Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] presented in, and passed by the Senate in accordance with the provisions of the constitution.
"The 1st respondent failed to fulfil its constitutional obligation under section 131(2) as read with section 117(1) of the constitution in the following manner:
"On the 24th of March 2021 the 1st respondent, through the Senate, passed a motion restoring the Constitution of Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] to the order paper when the said constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of the constitution upon the dissolution of the righth Parliament.
"On the 6th of April 2021 the 1st respondent, through the Senate, debated and passed the Constitution of Zimbabwe Amendment (No. 1) Bill, [H.B. 1A, 2017] when the said Constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of the constitution upon the dissolution of the eighth Parliament."
In his application, Sithole further argued the amendment process violated the constitution and that was dangerous in a democracy.
"Our country is a constitutional democracy, meaning that the constitution is the supreme law and any law, conduct, practice or custom inconsistent with it is null and void to the extent of the inconsistency," his application adds.
Ziyambi responded: "There is an oblique suggestion that the court did not uphold the constitution. This is unfortunate. It is not correct, and it is denied. The legislature and the executive equally acted in accordance with the constitution."
In his application, Sithole urged the court to declare the amendment null and void.
Mnangagwa desperately wants Chief Justice Luke Malaba to stay on for another five years to help him in his 2023 re-election bid should almost inevitable election disputes spill into the courts, as happened in 2018 and other previous elections.
Constitutional Amendment (No.1) Bill, among other outcomes, sought to allow the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without subjecting them to an open selection process and public interviews.
Mnangagwa and Ziyambi asked the court to dismiss Sithole's challenge with costs.
"I accordingly pray that the present application be dismissed with costs. It is an abuse of the process of this Honourable Court, and I urge the court to depart from the rule that in constitutional matter costs are not normally awarded," Ziyambi said in a notice of opposition dated 24 May.
In a thinly veiled attack on Sithole, Mnangagwa and Ziyambi said the applicant has no locus standi to question the conduct of Parliament.
"It is apparent that the applicant is a meddlesome individual who seeks to litigate on matters that do not affect him. The issue of standing before the court is undoubtedly one which requires the courts to give a wide and permissive reading of the law. It, however, must not extend to permitting persons like the applicant seeking academic and abstract opinions from the courts," Ziyambi said.
"There is no factual basis upon which the applicant has pleaded the existence of locus standi. He does not claim to be even a registered voter whose right to vote and to be represented in Parliament may be affected in any way by the conduct of the business of Parliament.
"The applicant works on the assumption that simply being a Zimbabwean citizen grants him the locus standi to question the conduct of parliament. I certainly consider that not to be sufficient and call upon the court to confirm that position," they said.
On 23 April, Sithole filed a ConCourt application challenging the passing of the first amendment, arguing that it violated section 147 of the constitution as it straddled two different lives of Parliament.
The Bill straddled the eighth Parliament which ran from 2013 to midnight on 29 July 2018, and the currently running ninth Parliament, whose tenure ends in 2023.
In terms of the law, the executive should have re-introduced the Bill in the current parliament, rather than carrying on from the previous parliamentary life since it had already lapsed.
Section 147 of the constitution reads: "On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses."
In his application, in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with rule 27(1) of the ConCourt rules, 2016, which cites the Parliament of Zimbabwe, Speaker of the National Assembly, President of Senate, Ziyambi and Mnangagwa, Sithole is seeking an order which declares that by passing Amendment (No.1) Bill on 6 April after it was carried over into the current life of Parliament from the previous one, Senate violated section 147 of the constitution.
Sithole, represented by Bulawayo-based law firm Ncube & Partners, is seeking a declaratory order on several issues, but first builds up his case by arguing:
"It is my sincere contention that the 1st respondent (Ziyambi) has failed to fulfil its constitutional obligation under section 131(2) as read with section 117(1) of the constitution to have the Constitution of Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] presented in, and passed by the Senate in accordance with the provisions of the constitution.
"The 1st respondent failed to fulfil its constitutional obligation under section 131(2) as read with section 117(1) of the constitution in the following manner:
"On the 24th of March 2021 the 1st respondent, through the Senate, passed a motion restoring the Constitution of Zimbabwe Amendment (No.1) Bill, [H.B. 1A, 2017] to the order paper when the said constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of the constitution upon the dissolution of the righth Parliament.
"On the 6th of April 2021 the 1st respondent, through the Senate, debated and passed the Constitution of Zimbabwe Amendment (No. 1) Bill, [H.B. 1A, 2017] when the said Constitutional Bill had lapsed on the 29th of July 2018 by operation of section 147 of the constitution upon the dissolution of the eighth Parliament."
In his application, Sithole further argued the amendment process violated the constitution and that was dangerous in a democracy.
"Our country is a constitutional democracy, meaning that the constitution is the supreme law and any law, conduct, practice or custom inconsistent with it is null and void to the extent of the inconsistency," his application adds.
Ziyambi responded: "There is an oblique suggestion that the court did not uphold the constitution. This is unfortunate. It is not correct, and it is denied. The legislature and the executive equally acted in accordance with the constitution."
In his application, Sithole urged the court to declare the amendment null and void.
Mnangagwa desperately wants Chief Justice Luke Malaba to stay on for another five years to help him in his 2023 re-election bid should almost inevitable election disputes spill into the courts, as happened in 2018 and other previous elections.
Source - zimlive
