By reason of an allegation by the applicant of a breach of his fundamental right, enshrined in section 56(1) of the Constitution, this application gained direct access to the Constitutional Court (“the Court”) through the front door, which is section 85(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).
THE APPLICATION
The applicant averred, that, he is a Member of Parliament for Lobengula Constituency in Bulawayo (having been so elected in the harmonised elections held on 31 July 2013) and residing in Bulawayo. He charges the respondents, and, in particular, the first respondent who is the Minister responsible for issues of local Government, with a violation of section 267 of the Constitution.
This is because of their alleged failure to bring about the enactment of such an Act of Parliament as would give effect to the provisions of Chapters 2 (which sets out the national objectives) and 14 (which deals with devolution and setting up of provincial governance) of the Constitution of Zimbabwe thus bringing into operation devolution in Zimbabwe.
He alleges, that, the failure of the respondents, since 1 August 2013 when the full Constitution took effect, to bring a draft Bill before Parliament for enactment constitutes a breach of sections 2 (which renders conduct inconsistent with the Constitution invalid to the extent of the inconsistency) and 5 (this section defines the tiers of Government in Zimbabwe, one of them being Provincial and Metropolitan Councils) of the Constitution.
He therefore seeks the following relief:
“IT IS ORDERED THAT:
1. The respondents failure to enact the law covered and as envisaged in Chapter 14 of the Constitution, in particular, sections 267(2), 273(4) and 270(2) of the Constitution of Zimbabwe, is a breach of the Constitution of Zimbabwe.
2. The failure by the respondents to enact the laws necessary to operationalize Chapter 14 in so far as it relates to Provincial Governance is a violation of the applicant's right to equal protection and benefit of the law as defined by Article 56(1) of the Constitution.
3. The respondents must bring before Parliament such a Bill or Bills as covered by sections 273(4), 267(2) and section 270(2) of the Constitution of Zimbabwe within 45 days from the date of issuance of this order by the Court.
4. That respondents, jointly and severally, each paying the other to be absolved pays costs of suit.”
I note here, that, section 273(4) of the Constitution does not exist.
Section 273 of the Constitution, in subsections (1) and (2) makes provision relating to the establishment and functions of provincial and metropolitan councils and for the filling of vacancies therein.
The application is opposed by the respondents.
The first respondent denied any neglect in bringing the Bill before Parliament. He annexed to his opposing affidavit a draft Bill which he termed a working draft. He explained that legislation of such importance cannot be hurriedly placed before Parliament and that he is still in the process of carrying out the necessary consultations with the various entities as prescribed by section 267(2)(b) of the Constitution.
The respondents also contend, that, the applicant has not, save for a mere statement alleging an infringement of his right conferred by section 56(1) of the Constitution, to equal protection and benefit of the law, demonstrated how that right has been infringed by the respondents. Nor has the applicant adduced any evidence to substantiate his allegation that “the State is limping” because there are no metropolitan and provincial councils as provided for in section 5 of the Constitution.
It is further contended by the respondents, that, the second respondent's responsibility for bringing legislation before Parliament extends only to those matters which fall under his portfolio and that the Bill envisaged by section 267 of the Constitution is not one of those matters.
In any event, so averred the respondents, a reasonable period was required within which to produce the legislation in question and it could not be hurried through within the period of 45 days suggested by the applicant.
It was submitted that the application was devoid of merit and ought to be dismissed with costs.
LOCUS STANDI
The applicant states his standing to bring this application as follows:
“9.1 I believe, that, as an ordinary citizen, and, more importantly, as a Member of Parliament, I have a right to bring this application before this Honourable Court. The issue of devolution is key and central in the part of the country I come from and in the Constituency I represent. I was chosen to represent my Constituency which expects me to serve in the Bulawayo Metropolitan Council and represent their interests. I want to serve in this important institution so that it can perform and execute its developmental roles as defined by the Constitution.
9.2 Moreover, I believe that any citizen has and should have a general right to bring any application before this Honourable Court where the government of the day, or any other Constitutional body, is disobeying or disrespecting or not enforcing or implementing any mandatory provision of the Constitution. This right exists and should exist whether or not that breach or omission is outside Chapter 4 of the Constitution of Zimbabwe. Put in simple terms, a citizen's right to approach this Honourable Court cannot, and should not, be restricted to a complaint founded on breach of the declaration of rights that are set out in Chapter 4 of the Constitution of Zimbabwe.
9.3 Besides, to the extent that I have in fact alleged a breach of a fundamental right, I have a right to approach this Honourable Court, as I hereby do, in terms of section 85 of the Constitution of Zimbabwe. Section 85(1)(a) and (d), being the specific legs that I bring this application should it be restricted to the narrow question of breach of declaration of the rights defined in Chapter 4 of the Constitution of Zimbabwe.”
The applicant's stance is thus twofold:
(i) Firstly, he, as a Member of Parliament is automatically entitled to be a member of the Bulawayo Metropolitan Province. By virtue of section 269(1)(c) of the Constitution, all members of the National Assembly whose constituencies fall within the Metropolitan Province concerned, are automatic members of the Metropolitan Council. Thus, his constitutional right, as bestowed by section 269 of the Constitution has been denied by the respondents failure to enact the legislation in question.
More specifically, the applicant has been denied the “responsibility and duty for the social and economic development activities in the province. This includes the right to co-ordinate and implement governmental programs in the province, the right to plan and implement measures for the conservation, implementation, and management of natural resources in the province, and, of course, the right to promote tourism in the province.”
Accordingly, so the applicant avers, he has the right to approach this Court for the constitutional mandamus sought in the draft order because the respondents are in breach of “not only the provisions of Chapter 14 by default, but are acting against the concept of a paradismic state as defined and captured in section 8 of the Constitution.”
(ii) The second ground on which he bases his locus standi is that, in denying him the benefit of Chapter 14 of the Constitution, the respondents are “in fact breaching not only Article 56(1) of the Constitution in so far as it protects the applicant, but, also denigrating the supremacy of the Constitution.”
At p7 of the application he avers:
“In any event, to the extent that Provincial governance, as covered by Chapter 14 (of the Constitution), is a right and expectation given to me and other citizens by law, the respondents, by their inaction, are denying me equal protection and benefit of the law. This therefore means, that, their inactions are in breach of my constitutional right to equal protection and benefit of the law as defined by section 56(1) of the Constitution of Zimbabwe.
I would therefore pray that this honourable court must respectfully compel the respondents to respect my right covered under 56(1) of the Constitution, by obliging the same to gazette and bring before Parliament a Bill as covered by the aforesaid sections 267 and 273(1) of the Constitution of Zimbabwe. This is the second leg and basis of my constitutional application to this Honourable Court.”
In terms of section 85 of the Constitution, certain persons may approach a court directly for the vindication of a fundamental right allegedly infringed or likely to be infringed. It provides as follows:
“85 Enforcement of fundamental human rights and freedoms
(1) Any of the following persons, namely:
(a) Any person acting in their own interests;
(b) Any person acting on behalf of another person who cannot act for themselves;
(c) Any person acting as a member, or in the interests of a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.
(2) The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1).
(3) The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1), and those rules must ensure that:
(a) The right to approach the court under subsection (1) is fully facilitated;
(b) Formalities relating to the proceedings, including their commencement, are kept to a minimum;
(c) The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities; and
(d) A person with particular expertise may, with the leave of the court, appear as a friend of the court.
(4) The absence of rules referred to in subsection (3) does not limit the right to commence proceedings under subsection (1) and to have the case heard and determined by a court.”
The submission by the respondents, in their heads of argument, that, at the time of the hearing, the applicant was no longer a Member of Parliament is common cause.
I agree with the submission on behalf of the respondents, that, the applicant could not found his locus standi on his former status as a Member of Parliament.
The applicant, however, faces a more serious hurdle.
The right allegedly infringed is not a fundamental right enshrined in Chapter 4 of the Constitution.
Accordingly, an approach in terms of section 85 of the Constitution, to vindicate the alleged infringement of sections 267, 270 and 273 of the Constitution, is not available to the applicant.
I find no merit in the applicant's averment in paragraph 9.2 of his founding affidavit (quoted above)…, that, anyone should be allowed to bring any constitutional application before this Court.
To allow this totally unrestricted approach would be a violation of the Constitution which has restricted the direct approach to the vindication of fundamental rights (see section 85(1) of the Constitution) and has itself outlined other methods (see, for example, section 175 of the Constitution) of approach to this Court.
Thus, to use the words of the applicant 'the first leg' on which the application is based cannot stand.
