MALABA
DCJ:
After perusing documents filed of record and hearing counsel, the
unanimous decision of the Constitutional Court (“the Court”) was
that the matter be dismissed with costs. The Court indicated that
reasons for the decision would be given in due course. These are
they.
BACKGROUND
The
applicants are former members of the National Assembly, one of the
two Houses of Parliament. They were elected members of the National
Assembly on 31 July 2013 during the harmonised elections. Their
candidature for election as Members of Parliament was on the ticket
of the Zimbabwe African National Union (Patriotic Front) party
(“ZANU-PF”).
ZANU
PF is a political party with a detailed constitution that governs,
inter alia, matters relating to membership.
The
applicants approached the Court in terms of section 85(1) of the
Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the
Constitution”).
The
first applicant, in his founding affidavit, averred that ZANU-PF as a
political party had been experiencing internal squabbles since the
beginning of 2014. These squabbles culminated in a meeting held by
some members in December 2014, which was referred to as a “congress”
by those who attended.
Amongst
some of the resolutions of the meeting was the suspension of the
applicants from ZANU-PF.
On
3 March 2015 the first applicant instituted proceedings in the High
Court seeking an order declaring the meeting illegal, which
proceedings were still pending at the time of this application.
On
26 January 2015 the first applicant wrote a letter to the President
and First Secretary of ZANU-PF. In his correspondence, the first
applicant invited the party President to solve the conflicts in the
party.
This
letter is filed of record.
The
first applicant claimed that this letter was not favoured with a
response. It was further averred by the first applicant that there
was a meeting of the ZANU-PF Politburo on 18 February 2015, at which
a decision was taken to expel him and the second applicant from the
party.
He
claimed that he heard about the meeting and the decision to expel him
and the second applicant through the media.
On
19 February 2015 the Secretary for Administration of ZANU-PF
addressed a letter to the first respondent, advising him that the
applicants had ceased to be members of ZANU PF. This letter was
received by the first respondent on 23 February 2015.
Aggrieved
by this correspondence, the first applicant wrote to the first
respondent on 27 February 2015, stating that his expulsion and that
of the second applicant from ZANU-PF were null and void.
In
the letter, the first applicant articulated reasons for his opinion
that his dismissal and that of the second applicant were null and
void.
By
letter dated 2 March 2015 the first respondent replied to the letter
of “protest” authored by the first applicant. In his response,
the first respondent communicated that any allegation of unfairness
in the first applicant's expulsion was supposed to be raised with
his political party.
With
reference to section 129(1)(k) of the Constitution, the first
respondent stated that he was under an obligation to act upon the
notification by a political party that a Member of the National
Assembly had ceased to be a member of the political party of which he
or she was a member when elected to Parliament.
On
3 March 2015 the first applicant learnt from the second applicant
that the first respondent had announced that his seat in the National
Assembly had become vacant in terms of section 129(1)(k) of the
Constitution.
This
announcement did not sit well with the applicants.
It
prompted them to approach the Court in terms of section 85(1) of the
Constitution. They sought an order couched in the following terms:
“IT
IS ORDERED:
1.
That the applicants fundamental right to the equal protection and
benefit of the law protected by section 56(1) of the Constitution of
Zimbabwe, 2013 has been infringed by the first respondent's conduct
consisting of his announcement and/or declaration on or about 3 March
2015 that their seats in the National Assembly had become vacant;
2.
That the applicants fundamental right to stand for election for
public office and, if elected, to hold such office protected by
section 67(3)(b) of the Constitution of Zimbabwe, 2013 has been
infringed by the first respondent's conduct consisting of his
announcement and/or declaration on or about 3 March 2015 that their
seats in the National Assembly had become vacant;
3.
That the applicants fundamental right to administrative justice
protected by section 68 of the Constitution of Zimbabwe, 2013 has
been infringed by the first respondent's conduct consisting of his
announcement and/or declaration on or about 3 March 2015 that their
seats in the National Assembly had become vacant;
4.
That the applicants fundamental right to a fair hearing protected by
section 69(3) of the Constitution of Zimbabwe, 2013 has been
infringed by the first respondent's conduct consisting of his
announcement and/or declaration on or about 3 March 2015 that their
seats in the National Assembly had become vacant;
5.
That as appropriate relief in terms of section 85(1) of the
Constitution of Zimbabwe, the first respondent's conduct consisting
of his announcement and/or declaration on or about 3 March 2015 that
their seats in the National Assembly had become vacant be and is
hereby declared null and void and of no effect whatsoever;
6.
That for the avoidance of doubt and as further appropriate relief in
terms of section 85(1) of the Constitution of Zimbabwe:
6.1
The first applicant is still a member of the National Assembly for
the Headlands Constituency;
6.2
The second applicant is still a Member of the National Assembly for
the Hurungwe West Constituency;
7.
That there are no vacancies for the Headlands and Hurungwe West
Constituencies in the National Assembly;
ISSUE
8.
That the second and third respondents be and are hereby ordered not
to cause the holding of by-elections in the Headlands and Hurungwe
West Constituencies pursuant to any notice of a vacancy they may have
received from the first respondent.
9.
That the first respondent pays costs of this application on an
attorney and client scale.”
The
issue that fell for determination by the Court was whether any of the
applicants fundamental human rights were violated by the announcement
and/or declaration that their seats in the National Assembly had
become vacant in terms of section 129(1)(k) of the Constitution.
The
fundamental rights that the applicants alleged had been violated were
the right to equal protection and benefit of the law in terms of
section 56(1), the right to stand for election for public office and,
if elected, to hold such office in terms of section 67(3)(b), the
right to administrative justice in terms of section 68, and the right
to a fair hearing in terms of section 69(3), of the Constitution.
At
the heart of the application is the need for a correct interpretation
of section 129(1)(k) of the Constitution. Its centrality to the issue
under consideration necessitates its reproduction. It reads as
follows:
“129
Tenure of seat of Member of Parliament
(1)
The seat of a Member of Parliament becomes vacant:
(a)–(j)
(not relevant);
(k)
if the Member has ceased to belong to the political party of which he
or she was a member when elected to Parliament and the political
party concerned, by written notice to the Speaker or the President of
the Senate, as the case may be, has declared that the Member has
ceased to belong to it.”
SUBMISSIONS
BY THE PARTIES
THE
APPLICANTS SUBMISSIONS
A
perusal of the applicants heads of argument reveals one critical
point taken in motivating the application. The point is that
principles of constitutional interpretation dictate that the rule of
law and good governance entrenched in section 3 of the Constitution
must be promoted.
The
applicants urged the Court to adopt a purposive approach in
interpreting section 129(1)(k) of the Constitution.
According
to the applicants, section 129(1)(k) of the Constitution has two
cumulative requirements that must be satisfied for its application:
(i)
The first requirement is that a Member of Parliament must have
lawfully ceased to belong to the political party of which he or she
was a member when he or she was elected to Parliament.
(ii)
The second requirement is that a bona fide written notice must be
forwarded to the Speaker of the National Assembly (“the Speaker”)
or the President of the Senate by the political party concerned
declaring that the Member of Parliament has ceased to be its member.
It
is the applicants submission that section 129(1)(k) is silent on how
these two requirements must be fulfilled.
The
applicants contend that the Speaker or the President of the Senate is
under a duty to enquire from the Member of Parliament in question
whether he or she has in fact ceased to be a member of the political
party concerned.
According
to the applicants, if the member in question disputes the veracity of
the declaration of the fact that he or she has ceased to be a member
of the political party concerned, the Speaker or the President of the
Senate cannot act in terms of section 129(1)(k) of the Constitution.
It
was argued further that the Speaker or the President of the Senate
has a duty to inform the political party concerned of the position
taken by the Member of Parliament who claims that he or she has not
ceased to be its member.
To
buttress this interpretation of section 129(1) of the Constitution,
the applicants invited the Court to take the view that the unbridled
power of political parties to cause termination of membership of
Parliament of elected Members is contrary to the spirit of the
Constitution.
The
contention was that an interpretation of section 129(1)(k) of the
Constitution which recognises in the Speaker or the President of the
Senate power to “declare” the seat of a Member of Parliament
vacant upon receipt of a written notice from a political party
declaring that the Member no longer belongs to it would be contrary
to the spirit of the Constitution.
THE
RESPONDENTS SUBMISSIONS
The
respondents vehemently opposed the application. The main points
advanced by the first respondent in particular were as follows:
Upon
receiving a written notice from a political party declaring that a
Member of Parliament is no longer a member of the political party
concerned, the Speaker or the President of the Senate is required by
the provisions of section 129(1)(k) of the Constitution to announce
in Parliament that the seat of the Member has become vacant. The
Speaker or the President of the Senate has no power under section
129(1)(k) of the Constitution to create a vacancy in the seat of a
Member of Parliament. The words used in section 129(1)(k) of the
Constitution to describe what should be done, by whom, under what
circumstances, and the effect thereof, are clear and unambiguous. The
intended meaning of section 129(1)(k) of the Constitution is the
ordinary and grammatical meaning of the words used by the makers of
the Constitution. There is no cause for interpreting the provisions
of section 129(1)(k) in terms of the spirit of the Constitution when
the purpose of the constitutional provisions is served by the clear
and unambiguous language used to give effect to it.
The
Court was referred to the decision of the Supreme Court in Capital
Radio P/L v Broadcasting Authority of Zimbabwe 2003 (2) ZLR 236 (S)
at 246E-F where CHIDYAUSIKU CJ said:
“It
is trite that in interpreting statutes, including the Constitution,
the golden rule is that in order to ascertain the intention of the
legislature, the words of a statute or legislation are to be given
their ordinary or primary meaning. It is only where that primary
meaning of words is obscure or leads to absurdity that other
principles of interpretation are invoked to assist in the
ascertainment of the intention of the legislature.”
It
was also the first respondent's argument that section 129(1)(k) of
the Constitution does not impose on the Speaker or the President of
the Senate a duty to enquire into the legality or otherwise of the
termination of membership of the political party concerned as
declared in the written notice received by him or her.
INTERPRETATION
OF SECTION 129(1)(K) OF THE CONSTITUTION
The
Constitution provides guidelines on how it should be interpreted.
Section 331 provides as follows:
“331
General principles of interpretation of the Constitution
Section
46 applies, with any necessary changes, to the interpretation of this
Constitution apart from Chapter 4.”
It
is common cause that section 129(1)(k) of the Constitution is not
part of Chapter 4. It therefore follows that section 46 applies, with
any necessary changes, to its interpretation.
Section
46 of the Constitution provides:
“46
Interpretation of Chapter 4
(1)
When interpreting this Chapter, a court, tribunal, forum or body -
(a)
Must give full effect to the rights and freedoms enshrined in this
Chapter;
(b)
Must promote the values and principles that underlie a democratic
society based on openness, justice, human dignity, equality and
freedom, and in particular, the values and principles set out in
section 3;
(c)
Must take into account international law and all treaties and
conventions to which Zimbabwe is a party;
(d)
Must pay due regard to all the provisions of this Constitution, in
particular the principles and objectives set out in Chapter 2; and
(e)
May consider relevant foreign law; in addition to considering all
other relevant factors that are to be taken into account in the
interpretation of a Constitution.
(2)
When interpreting an enactment, and when developing the common law
and customary law, every court, tribunal, forum or body must promote
and be guided by the spirit and objectives of this Chapter.”
In
interpreting section 129(1)(k) of the Constitution, the Court is
under an obligation to give full effect to the founding values
enshrined in section 3 of the Constitution, including the supremacy
of the Constitution and the rule of law.
The
supremacy of the Constitution means that the provisions of the
Constitution are supreme and any law repugnant to them is invalid.
The rule of law also dictates that decisions must be based on and
sanctioned by the law.
Section
129(1)(k) of the Constitution regulates the tenure of office of
Members of Parliament.
In
terms of the section, the seat of a Member of Parliament becomes
vacant if the Member has ceased to belong to the political party of
which he or she was a member when elected to Parliament and the
political party concerned, by written notice to the Speaker or the
President of the Senate, as the case may be, has declared that the
Member has ceased to belong to it.
The
Court on a previous occasion has held that, in general, the
principles governing the interpretation of a Constitution are
basically the same as those governing the interpretation of statutes.
One
must look to the words actually used and deduce what they mean within
the context in which they appear. If the words used are clear and
unambiguous, then no more is necessary than to construe them in their
natural and ordinary sense. See Mawarire v Mugabe N.O. and Others
2013 (1) ZLR 469 (CC).
In
Chihava and Others v Provincial Magistrate and Another 2015 (2) ZLR
31 (CC) at 35H the Court said:
“In
this respect, it is pertinent to note that a constitution is itself a
statute of Parliament. Therefore, any rules of interpretation that
are regarded as having particular relevance in relation to
constitutional interpretation can only be additional to the general
rules governing the interpretation of statutes.”
In
Zimbabwe Revenue Authority and Anor v Murowa Diamonds (Pvt) Ltd 2009
(2) ZLR 213 (S), the general principle of interpretation of statutes
was set out at 218E as follows:
“The
grammatical and ordinary sense of the words is to be adhered to
unless that would lead to some absurdity or some repugnance or
inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified so as to
avoid that absurdity and inconsistency, but no further: see Chegutu
Municipality v Manyora 1996 (1) ZLR 262 (S) at p264D-E; Madoda v
Tanganda Tea Company Ltd 1999 (1) ZLR 374 (S) at p377A-D.”
The
applicants bore the onus of showing that the grammatical and ordinary
meaning of the words used in section 129(1)(k) of the Constitution
would lead to an absurd result or inconsistency with the rest of the
Constitution if adopted by the Court.
It
was necessary for the applicants to show that there was need to
depart from the ordinary and grammatical meaning of the words used in
section 129(1)(k) of the Constitution.
The
ordinary meaning of the words used in section 129(1)(k) of the
Constitution is that a Member of Parliament ceases to be a Member
when he or she ceases to belong to the political party of which he or
she was a member when elected to Parliament and the political party
concerned, by written notice to the Speaker or the President of the
Senate, has declared that the Member has ceased to belong to it.
The
provisions of section 129(1)(k) of the Constitution do not clothe the
Speaker or the President of the Senate with power to inquire into the
legality or otherwise of the fact of cessation of membership of the
political party concerned by the Member of Parliament.
Section
129(1)(k) of the Constitution envisages that every political party as
an organisation has in its administrative structure an individual
tasked with the duty of communicating the fact of the Member of
Parliament having ceased to be its member in the appropriate form to
the Speaker or the President of the Senate.
The
Constitution places a duty on the Speaker or the President of the
Senate to act on the notification from a political party that
communicates the prescribed fact in the prescribed form.
Nothing
in the provisions of section 129(1)(k) of the Constitution empowers
the Speaker or the President of the Senate to interfere with the
internal affairs of political parties and their members.
The
status of having ceased to be a member of the political party
concerned is a matter of fact, the legality of which is determined by
reference to the provisions of the constitution of the political
party concerned.
It
may be a fact resulting from a process of expulsion or voluntary
resignation.
When
it occurs, it remains a matter affecting the internal affairs of the
political party concerned. It may remain so without any effect on the
tenure of seat of a Member of Parliament unless the political party
concerned takes the action prescribed under section 129(1)(k) of the
Constitution and communicates the fact that the Member of Parliament
has ceased to belong to it to the person appointed to receive the
written notice.
If
a Member of Parliament is unhappy with the manner his or her
membership of a political party was terminated, he or she has the
legal remedies for challenging the legality of the termination of his
or her membership before the political party concerned forwards the
written notice required by section 129(1)(k) of the Constitution to
the Speaker or the President of the Senate.
After
all, it is he or she who is privy to the constitution of the
political party, the rights enshrined therein, and the circumstances
surrounding the termination of his or her membership of the political
party.
The
first respondent received a letter from the Secretary for
Administration of ZANU PF, the political party under whose tickets
the applicants were elected into Parliament. The letter advised the
first respondent that the applicants had ceased to belong to ZANU-PF.
The
first respondent acted in terms of section 129(1)(k) of the
Constitution when he announced that the seats had become vacant and
advised the second and third respondents of the development.
The
vacancy in the seat of Parliament happens by operation of law when a
written notice, which complies with the procedural and substantive
requirements of section 129(1)(k) of the Constitution, is received by
the Speaker or the President of the Senate.
The
Speaker or the President of the Senate announces the vacancy of a
seat of Parliament which has occurred by operation of law.
The
creation of a vacancy in a seat of Parliament in terms of section
129(1)(k) of the Constitution is an event, the occurrence of which
would not be determined by the Speaker or the President of the
Senate.
It
should also be emphasised that, in reading the Constitution as a
whole, its founding provisions must be had regard to.
The
supremacy of the Constitution and the rule of law in particular are
important to this case.
The
principle of the rule of law dictates that the conduct of the Speaker
or the President of the Senate must be in accordance with the
requirements of section 129(1)(k) of the Constitution.
The
conduct of the first respondent was consistent with the cumulative
requirements set out in section 129(1)(k) of the Constitution.
Each
applicant ceased to belong to the political party of which he or she
was a member at the time of his or her election to Parliament, and
the political party concerned, by written notice to the Speaker,
declared that each applicant had ceased to belong to it.
The
seat of each applicant as a Member of Parliament became vacant by
operation of section 129(1)(k) of the Constitution.
The
Speaker did not have to do anything to create vacancies in either of
the applicants seats in Parliament. In other words, the vacancy in
the seat of Parliament is created as a direct consequence of events,
the origin of which lies outside Parliament.
Termination
of the tenure of a Member to occupy the seat is what the
Constitution, through the provisions of section 129(1)(k), says must
happen when all the procedural and substantive requirements of the
provision have been met.
The
allegation that the announcement by the Speaker of the fact that the
seats occupied by the applicants as Members of Parliament had become
vacant violated the applicants rights to equal protection and benefit
of the law enshrined in section 56(1) of the Constitution implies
that the Speaker acted contrary to the requirements of section
129(1)(k) of the Constitution.
The
question of the validity or otherwise of the conduct of the Speaker
in announcing that the seats occupied by the applicants in the
National Assembly had become vacant had to be determined by
application of the provisions of section 129(1(k) of the
Constitution, as interpreted by the Court, to the conduct.
If
the decision of the Court was that the conduct of the Speaker was
inconsistent with the requirements of the provisions of section
129(1)(k) of the Constitution, there would be no need to go further
and say that the conduct of the Speaker violated section 56(1) of the
Constitution.
The
conduct complained of is either valid and constitutional or invalid
and unconstitutional vis-a-vis the constitutional provision against
the standard of which its legality is measured.
Section
129(1)(k) of the Constitution is a complete provision that is not
subject to the Bill of Rights. Like any other provision of the
Constitution, section 129(1)(k) is a fundamental law partaking of the
status of supremacy of the Constitution against which the validity of
conduct can conclusively be measured.
It
would be absurd to come to a conclusion that an act done in terms of
the provisions of the Constitution can violate someone's rights
under the same Constitution. In other words, the applicants could not
have been successful in challenging an act that was sanctioned by the
supreme law of the land.
The
Constitution is one document that contains provisions that are
consistent with each other. One provision of the Constitution cannot
be used to defeat another provision in the Constitution.
Different
provisions of the Constitution must be interpreted with a view to
ensuring that they operate harmoniously to achieve the objectives of
the Constitution.
It
is for these reasons that the Court found that the application was
devoid of merit.
CHIDYAUSIKU
CJ: I agree
ZIYAMBI
JCC: 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
Nyakutombwa
Mugabe Legal Counsel, applicants legal practitioners
Chihambakwe,
Mutizwa & Partners, first respondent's legal practitioners
Hussein
Ranchod & Company, second respondent's legal practitioners
Nyika
Kanengoni & Partners, third respondent's legal practitioners
