ZIYAMBI
JCC:
[1]
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
[2]
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
and 14
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
and 5
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) does not exist. Section 273 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.
[3]
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 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
[4]
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.”
[5]
The applicant's stance is thus twofold. 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) 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 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
s8 of the Constitution”.
[6]
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 s56(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”.
[7]
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 to
vindicate the alleged infringement of sections 267, 270 and 273 is
not available to the applicant.
I
find no merit in the applicant's averment in para 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
and has itself outlined other methods
of approach to this Court. Thus, to use the words of the applicant
'the first leg' on which the application is based cannot stand.
[8]
In so far as the applicant alleges an infringement of his fundamental
right enshrined in Chapter 4 of the Constitution, he may, in the
absence of the rules referred to in section 85(3), be permitted to
access this Court directly. On this basis he has, prima
facie,
the locus
standi
to bring his application in terms of section 85(1)(a). But he
cannot, as he has sought to do, act in his own interest as well as
the public interest. This point was emphasized in Loveness
Mudzuri & Anor v Minister of Justice, Legal & Parliamentary
Affairs N.O. & 2 Ors
where MALABA DCJ, delivering the judgment of the Court, held that an
applicant should confine himself to one of the capacities set out in
section 85(1). At p8 of the judgment the learned judge said:
“What
is in issue is the capacity in which the applicants act in claiming
the right to approach the court on the allegations they have made. In
claiming locus
standi
under section 85(1) of the Constitution, a person should act in one
capacity in approaching a court and not act in two or more capacities
in one proceeding.”
And
at page 9:
“The
rule requires that the person claiming the right to approach the
court must show on the facts that he or she seeks to vindicate his or
her own interest adversely affected by an infringement of a
fundamental right or freedom. The infringement must be in relation
to himself or herself as the victim or there must be harm or injury
to his or her own interests arising directly from the infringement of
a fundamental right or freedom of another person. In other words the
person must have a direct relationship with the cause of action.”
[9]
As to his approach in terms of section 85(1)(d), it is clear that
the applicant has made no case for the public interest apart from a
bare averment that he has approached the Court in terms of section
85(1)(a) and (d). Accordingly, the only question properly before the
Court for determination, and which I deal with hereunder, is whether
there has been an infringement of the applicant's fundamental right
enshrined in section 56(1) to equal protection and benefit of the
law.
INFRINGEMENT
OF SECTION 56(1)
[10]
Section 56(1) of the Constitution provides:
“56
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.”
The
right guaranteed under section 56(1) is that of equality of all
persons before the law and the right to receive the same protection
and benefit afforded by the law to persons in a similar position. It
envisages a law which provides equal protection and benefit for the
persons affected by it. It includes the right not to be subjected to
treatment to which others in a similar position are not subjected. In
order to found his reliance on this provision the applicant must show
that by virtue of the application of a law he has been the recipient
of unequal treatment or protection that is to say that certain
persons have been afforded some protection or benefit by a law, which
protection or benefit he has not been afforded; or that persons in
the same (or similar) position as himself have been treated in a
manner different from the treatment meted out to him and that he is
entitled to the same or equal treatment as those persons.
In
Van der Walt v Metcash Trading Limited
(CCT37/01) [2002] ZACC 4; 2002 (4) SA 317; 2002 (5) BCLR 454 where
reliance on the provisions of section 9(1) of the Constitution of
South Africa (which is identical in its terms to section 56(1) of the
Constitution) depended solely on the inequality of outcome of two
applications to the Supreme Court of Appeal, the Constitutional Court
described the right as follows:
“It
is clear that the provision means that all persons in a similar
position must be afforded the same right to access the courts and to
the same fair and just procedures with regard to such access.”
And
in Sarrahwitz
v Martiz N.O. & Anor
(CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925
(CC),
the same Court said:
“This
subsection guarantees everyone the right to equal
protection and benefit of the law.
The concept of “equal
protection
and benefit
of the law”
suggests that purchasers who are equally vulnerable must enjoy the
same legal endowments irrespective of their method of payment”.
[11]
Clearly the guarantee provided by section 56(1) is that of equality
under the law. The applicant has made no allegation of unequal
treatment or differentiation. He has not shown that he was denied
protection of the law while others in his position have been afforded
such protection. He has presented the Court with no evidence that he
has been denied equal protection and benefit of the law. The failure
by the respondents to enact the legislation contended for has not
been shown to discriminate against him in favour of others. In
short, the applicant has come nowhere near to establishing that his
right enshrined in section 56(1) of the Constitution has been
infringed. He is therefore not entitled to a remedy.
In
view of this conclusion the issue of a mandamus
becomes
irrelevant. However, since the point was argued before us, I make
the following remarks.
THE
APPLICATION FOR A
MANDAMUS
[12]
The applicant claims that the failure by the respondents to enact the
law envisaged in section 267 of the Constitution is a breach of the
Constitution for which he is entitled to approach this Court seeking
a mandamus.
Section
264(1) of the Constitution provides:
“264
Devolution of governmental powers and responsibilities
(1)
Whenever appropriate, governmental powers and responsibilities must
be devolved to provincial and metropolitan councils and local
authorities which are competent to carry out those responsibilities
efficiently and effectively.”
Section
267(1) lists the Provinces of Zimbabwe and subsection (2) provides;
“(2)
An Act of Parliament —
(a)
must provide for the division of provinces into districts; and
(b)
may provide for the alteration of provincial and district boundaries;
after
consultation with the Zimbabwe Electoral Commission and the people in
the provinces and districts concerned.”
Undoubtedly,
it is within the powers of a court before which a constitutional
matter is argued to grant, in an appropriate case, a mandatory
interdict or mandamus.
I have already concluded that since the complaint does not relate to
the breach of a fundamental right, the applicant is not entitled to
approach the Court in terms of section 85. However, even assuming
the applicant was properly before the Court, he has not made out a
case for the mandamus
that he seeks.
[13]
While not necessarily bound by them, the Court is generally guided by
common law principles relating to interdicts. Thus in order to prove
his entitlement to a mandamus
in this case, the applicant would be required to meet the
requirements for the grant of a final interdict. These are:
(i)
A clear right;
(ii)
An injury actually committed or reasonably apprehended; and
(iii)
The absence of a similar protection by any other remedy.
[14]
It was submitted by the respondents that the applicant had not
satisfied these requirements. I agree. In terms of section 264(1),
the division of the provinces into districts is to take place
whenever
appropriate.
The section is not cast in mandatory terms. The State has been
given a constitutional mandate to decide when it is appropriate and
it is not for the applicant to make that decision. Reading all
provisions as a whole, as one must in interpreting the Constitution,
that decision is a prerequisite to section 267. Once that decision
has been made, it can only be implemented by an Act of Parliament
after consultations with Zimbabwe Electoral Commission and the
persons affected by the proposed change.
While
it is true that the Metropolitan Councils form one of the tiers in
the order of Government as set out in the Constitution
it is also true that no time limits have been set by the Constitution
for the devolution of power to the authorities listed therein.
Consequently it can safely be said that section 264 contemplates that
compliance with its dictates be effected within a reasonable time.
[15]
The applicant maintained that the process required little time and
indeed 45 days was suggested as the time within which the enactment
should be gazetted and placed before Parliament for consideration.
However, on behalf of the respondents it was submitted that work is
taking place on the proposed bill and that included consultations
with various stakeholders especially those mentioned in section 267.
It was submitted that an enactment of this nature could not be
hurriedly done in the time suggested by the applicant.
DISPOSITION
[16]
According to the applicant, although the Constitution was signed into
law by the President of Zimbabwe on 15 May 2013, the full document
only 'became law after the general election of 31 July 2013 on 1
August 2013'. This application was brought on 25 March, 2014 less
than 12 months after the coming into effect of the Constitution. No
evidence on which the issue of reasonableness could be determined was
placed before the Court in the applicant's founding affidavit. The
Court would, therefore, have been unable because of the lack of
evidence before it, to make a decision on whether or not the
respondents had failed within a reasonable time to enact the
legislation referred to in section 267 and the applicant would, for
the same reason, have failed to establish an infringement of a clear
right entitling him to a mandamus.
[17]
It follows from the above that the application is totally devoid of
merit. However, in keeping with the general practice not to award
costs in constitutional matters, no award of costs is made.
[18]
The application is, for the above reasons, dismissed.
CHIDYAUSIKU
CJ: I
agree
GWAUNZA
JCC: I
agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
GUVAVA
JCC: I
agree
MAVANGIRA
AJCC: I
agree
Tendai
Biti Law,
applicant's
legal practitioners
Civil
Division of the Attorney–General's Office,
3rd
respondent's legal practitioners
1.
Which sets out the national objectives
2.
Which deals with devolution and setting up of provincial governance
3.
Which renders conduct inconsistent with the Constitution invalid to
the extent of the inconsistency
4.
This section defines the tiers of Government in Zimbabwe, one of them
being Provincial and Metropolitan Councils
5.
At
para [4]
6.
s 85(1)
7.
See for example s175
8.
CCZ 12/2015
9.
Tribac Private Limited v Tobacco Marketing Board 1996 (2) ZLR 52 (S)
10.
S5(b) of the Constitution
