PATEL
JCC: At
the end of proceedings in this matter, by unanimous decision, the
Court issued an order as follows:
“1.
It is declared that in respect of S.I. 144 of 2022, which was
published in the Gazette
dated 19 August 2022, the respondent failed to fulfil its
constitutional obligation under section 152 of the Constitution.
2.
The respondent is ordered to comply with its constitutional
obligation under section 152 of the Constitution, by not later than
close of business on the 16th of June 2023.
3.
There shall be no order as to costs.
4.
Reasons for this order are to follow in due course.”
The
following are the reasons for the order handed down by the full bench
of this Court.
The
Background
The
applicant is the President of a political party known as the
Nationalists Alliance Party and is a member of the Political Actors
Dialogue (“the POLAD”). He stood for election to the office of
President during the 2018 harmonised elections. The respondent is the
Parliament of Zimbabwe, the constitutional organ reposed with primary
law-making authority in Zimbabwe.
The
petition before this Court is centred around the allegation that the
respondent failed to fulfil its purported constitutional obligation
of examining every statutory instrument published in the Gazette
and considering whether any provision of the statutory instrument
contravened any provision of the Constitution. More specifically,
this contention relates to the Electoral (Nomination of Candidates)
(Amendment) Regulations 2022 (No.1), Statutory Instrument 144 of 2022
(S.I. 144/22), which was published in the Gazette
dated 19 August 2022.
The
impugned statutory instrument was published by the Zimbabwe Electoral
Commission (hereinafter “ZEC”) on the aforesaid date.
It
increased the nomination fee for aspiring presidential candidates in
the imminent 2023 general elections and beyond, from US$1,000 to
US$20,000. Similarly, the nomination fee for aspiring candidates for
National Assembly and Senate elections was increased from US$50 to
US$1,000. It is these hefty and apparently prohibitive hikes and, in
particular, the perceived procedural irregularities that followed the
promulgation of S.I. 144/22, that drew the ire of the applicant.
In
his founding papers before this Court, the applicant averred that, as
an ordinary citizen with aspirations to run for election as
President, he would not be able to afford the US$20,000 nomination
fee. He added that none of the members of his political party would
be able to afford US$1,000 to run for public office as Members of
Parliament.
Against
this background, the applicant sought an order declaring that
Parliament failed to fulfil its constitutional obligation in terms of
section 152(3)(c) of the Constitution.
It
was contended that the respondent had an immutable obligation to
examine every statutory instrument published in the Gazette
and
consider whether any provision of the statutory instrument
contravened any provision of the Constitution.
The
applicant alleged that the respondent had failed to discharge this
obligation in respect of S.I. 144/22.
He
based his standing on the belief that every citizen of Zimbabwe has
automatic standing to challenge any failure by an institution of the
State to fulfil a constitutional obligation.
It
was the applicant's view that the use of the words 'examine'
and 'consider' in the cited constitutional provision required the
respondent to take a serious view of the imperative to protect the
supreme law of the land. In this regard, it was contended that the
respondent failed to fulfil its obligation in that it did not treat
S.I. 144/22 in accordance with the provisions of section 152(3)(c),
following which it should have produced a report on the
constitutionality of the statutory instrument.
Alternatively,
it was argued that the fact that the respondent did not find that the
statutory instrument infringed the rights of citizens provided for
and protected by section 67 of the Constitution was evidence of a
failure to “examine” or “consider” the impugned regulations
within the contemplation of section 152(3) of the Constitution.
The
appellant took aim at the respondent's perceived “lackadaisical”
approach to S.I. 144/22, which conduct was alleged to have failed to
meet the requirement to 'examine' and “consider” within the
meaning of section 152(3)(c).
The
applicant averred that no reasonable Parliament acting in compliance
with the mandatory obligation under section 152(3)(c) of the
Constitution would have failed to consider that the regulations in SI
144/22 were patently unconstitutional for infringing the electoral
and civil rights of citizens under section 67 of the Constitution.
From
the applicant's perspective, had the respondent performed its
constitutional obligation, the regulations ought to have been
repealed or referred to this Court pursuant to para 9 of the Fifth
Schedule to the Constitution.
The
requirement to pay the nomination fee expressly in United States
Dollars was also stated to be an infringement of the rights contained
in section 67 of the Constitution.
On
the foregoing basis, the applicant sought the following order:
“1.
That it be and is hereby declared that in
respect of Statutory Instrument 144 of 2022 which was published in
the Gazette
dated 19th August 2022, the
Respondent (Parliament of Zimbabwe) failed to fulfil its
constitutional obligation under section
152(3)(c) of the Constitution of examining every statutory instrument
published in the Gazette
and considering whether any provision of the statutory instrument
contravenes any provision of the Constitution.
2.
As a consequence arising from paragraph 1 of this order, that it be
and is hereby declared that the Electoral
(Nomination of Candidates) (Amendment) Regulations, 2022 (No.1):
Statutory Instrument 144 of 2022 are null and void and of no force or
effect.
3.
There shall be no order as to costs.”
The
respondent duly opposed the application.
Its
opposing affidavit was deposed to by Jacob Mudenda, the Speaker of
the National Assembly. He refuted the allegation that the respondent
had failed to fulfil a constitutional obligation. According to the
respondent, the provisions of section 152(3)(c) of the Constitution
were unambiguous — the obligation to examine every statutory
instrument which had been published in the Gazette
lay
squarely on the Parliamentary Legal Committee (hereinafter
“the PLC”). Accordingly, the said provisions did not impose a
constitutional obligation on Parliament itself, as was alleged by the
applicant.
Contrary
to the applicant's averments, the respondent submitted that the PLC
did consider the regulations on 26 September 2022 and thereafter
resolved “not to issue a non-adverse certificate until they have
had a meeting with the Zimbabwe Electoral Commission concerning the
fees in Statutory Instrument 144 of 2022.”
Consequently,
the Clerk of Parliament wrote a letter on the same day to ZEC
inviting it to appear before the PLC.
By
letter dated 28 September 2022, the Chief Elections Officer of ZEC
advised the Clerk of Parliament that ZEC was constrained in
discussing the matter as it was sub
judice.
According to the respondent, this was the sole reason that the PLC
had postponed its consideration of the regulations until the High
Court had passed its determination on their legality.
All
in all, the respondent denied that the PLC had breached the
Constitution in any way.
In
any event, the respondent assiduously sought to distance itself from
assuming responsibility for the PLC's conduct. The respondent
maintained that an alleged omission or breach by the PLC did not
amount to failure by Parliament itself to fulfil a constitutional
obligation.
Submissions
by Counsel
Mr
Madhuku
for the applicant submitted that the applicant's locus
standi
was founded on section 2 of the Constitution.
It
was described as the supremacy clause which provided a basis for the
applicant to vindicate the supremacy of the Constitution as a
citizen. He submitted that the obligation in terms of section
152(3)(c) was imposed on Parliament by virtue of being specifically
imposed on the PLC.
He
referred to decisions of this Court from which it could be inferred
that the actions of the PLC were attributable to the respondent
itself. He added that the PLC, being a component of Parliament, was a
functionary of the respondent and thus the cited obligation fell
squarely upon the latter.
It
was also contended that there were concessions on record by the
respondent to the effect that it had not complied with its
constitutional obligation.
Mr
Madhuku
insisted that the said obligation could not be delayed by pending
litigation on the same issue in the High Court.
This
was so despite the import of Standing Order 98(1)(e) of the National
Assembly Standing Orders (Public Business) Ninth Edition 2020. The
Standing Order provides that “no member shall while speaking to a
question – (e) …. refer to any matter on which a judicial
decision is pending”.
He
submitted that the Standing Order applied only in respect of
non–constitutional issues.
Mr
Madhuku
also argued that the applicant was entitled to rely on the competence
of the first respondent to carry out its constitutional obligations
and that any perceived failure to pursue an administrative law action
ought not to non–suit him before this Court.
Per
contra,
Mr
Zhuwarara,
for
the respondent, submitted that the respondent had clearly fulfilled
the constitutional obligation in question, contrary to the
applicant's position.
He
referred to minutes of the PLC on record as evidence that the
respondent had considered the constitutionality of the impugned
statutory instrument. He argued that the process thereafter was only
stalled by ZEC's refusal to engage the PLC due to the pendency of
litigation in the High Court. He further reasoned that there was no
timeline for submitting the report from the PLC to Parliament and
that any order to that effect would be an undue intrusion into its
domain.
In
response, Mr
Madhuku
maintained that the PLC had a duty to examine and report on the
constitutionality of the impugned statutory instrument. The two were
deemed to be concurrent obligations that could not be separated as
was argued on behalf of the respondent.
In
this respect, he referred to Standing Order 36(6)(d) which
specifically stipulates a twenty-six day period for the PLC to submit
its report to Parliament.
After
some initial reservation, Mr
Madhuku
accepted that a mandamus
by the Court would be a competent remedy, consistent with the Court's
authority under section 167(2)(d) of the Constitution to interfere
with the respondent's processes.
The
Applicant's Legal Standing
The
applicant's position, as elaborated in oral argument, is that he
has approached the Court, not under section 85(1) but in terms of
section 167(2)(d) of the Constitution. This forms the basis of his
locus
standi
in this matter as a citizen of the country. As such, he has a right
to assume locus
standi
to vindicate the supremacy of the Constitution in accordance with
section 2 thereof.
Per
contra,
the respondent contends that the applicant appears to have conflated
the provisions of paras (a), (c) and (d) of section 85(1) and thus
has no standing to institute proceedings on behalf of himself as well
as the general citizenry and members of his party.
It
is trite law that standing is dependent on a direct and substantial
legal interest in the subject-matter of the action, which interest
could be prejudicially affected by the judgment of the court
concerned. This is the basic test that is primarily applicable at
common law.
In
constitutional cases, however, the test is not as restrictive but is
significantly wider.
It
is necessary to adopt a broad approach to standing, consistent with
the judicial mandate to uphold the Constitution and to ensure that
constitutional rights enjoy the full measure of protection,
particularly where a matter of public importance is involved. See
Ferreira v Levin N.O. & Ors 1996 (1) SA 984 (CC) at 1082 G-H;
Mawarire v Mugabe N.O. & Ors 2013 (1) ZLR 469 (CC); Mupungu v
Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ
07-21 at p22.
In
casu,
it is abundantly clear that the respondent has misread the
application.
The
applicant's references to section 67 of the Constitution are not
intended to vindicate that right under section 85(1) but to
demonstrate that the respondent ought to have found that the impugned
statutory instrument violates a fundamental right.
I
have no doubt whatsoever that the applicant has established a proper
basis for his standing in the present matter.
He
is a citizen with the noble aspiration of being elected to the office
of President of the country. He must surely have a direct and
substantial legal interest in any parliamentary process pertaining to
the examination of the constitutionality of regulations governing the
nomination of candidates for the presidency.
Consequently,
I am amply satisfied that the applicant is endowed with the requisite
locus
standi in judicio
in the present matter.
Compliance
with the Requirements of Rule 27
Rule
27 of the Constitutional Court Rules 2016 (the Rules) sets out what
must be pleaded in an application under section 167(2)(d) of the
Constitution.
The
founding affidavit must explicate two elements: the constitutional
obligation in question that is imposed on Parliament or the
President; and that which Parliament or the President has failed to
do in respect of the constitutional obligation.
This
Court has also prescribed that these two aspects must be set out with
reasonable precision. The litigant must plead his or her case with
sufficient clarity so that both the Court and the other parties know
what is being alleged. See
Mliswa v Parliament of the Republic of Zimbabwe CCZ 02-21; Mushoriwa
& Ors v Parliament of Zimbabwe CCZ 04-23.
In
the instant case, the applicant has identified the constitutional
obligation that has not been fulfilled in fairly clear terms. This is
the obligation imposed upon the PLC, in terms of section 152(3)(c) of
the Constitution, to examine every statutory instrument published in
the Gazette.
The applicant has also identified Parliament, through the PLC, as the
functionary that has failed to fulfil this obligation.
Lastly,
this failure on the part of Parliament has been elaborated with
sufficient precision and clarity.
Primarily,
it is alleged that there is no report by the PLC demonstrating that
S.I. 144/22 went through the procedure prescribed by section
152(3)(c). Alternatively, it is alleged that, even if that procedure
had in fact been complied with, the failure by Parliament to find
that S.I. 144/22 infringed the rights protected by section 67 of the
Constitution evidenced a failure to “examine” and “consider”
it within the contemplation of section 152(3)(c).
Having
regard to the foregoing, it is reasonably clear that the applicant
has identified an alleged breach of a constitutional obligation that
is averred to have been specifically imposed upon Parliament, through
the PLC.
I
am accordingly satisfied that the applicant has properly pleaded a
justiciable causa
for the hearing and determination of this matter under section
167(2)(d) of the Constitution.
Once
it is established that an applicant has properly pleaded his or her
case in accordance with the requirements of Rule 27 of the Rules,
this Court is at large to exercise its relatively broad jurisdiction
under section 167(2)(d).
For
present purposes, what is to be considered is the procedural adequacy
of the impugned law or conduct rather than the substantive validity
of that law or conduct.
Thus,
the question to be adjudicated and determined in
casu
is whether or not Parliament has followed and complied with due
process in the performance of the specific obligation imposed by
section 152(3)(c) of the Constitution.
Whether
Obligation Imposed on the PLC or on Parliament
Before
delving into the question posed above, it is necessary to deal with
the position vehemently propounded by the respondent in its opposing
affidavit.
The
gravamen of that position is the argument that the PLC is an entity
separate and distinct from Parliament and that, consequently, the
performance or non-performance of its functions cannot be imputed to
Parliament itself.
I
note at this stage that counsel for the respondent did not attempt to
advance or ventilate this somewhat specious position, either in his
heads of argument or in his submissions before the Court.
Nevertheless,
given the importance of the question, it demands a definitive answer
so as to place the matter beyond doubt.
In
motivating his position, the applicant relies upon the decision of
this Court in Gonese
& Anor v President & Ors
2018 (2) ZLR 670 (CC) for the submission that the obligation imposed
by section 152(3)(c) of the Constitution lies squarely on Parliament
itself, through the PLC.
The
applicant also relies on the case of Doctors
for Life International v Speaker of the National Assembly & Ors
2006 (6) SA 416 (CC) for the argument that an obligation imposed on a
component of Parliament is an obligation imposed on Parliament
itself.
The
applicant further argues that parliamentary committees have no legal
personality of their own and cannot be sued as separate legal persons
because they are part and parcel of Parliament. Furthermore, the
questions raised in the instant application not only involve an
intrusion into the domain of Parliament but also concern certain
obligations of Parliament that are politically sensitive.
The
respondent, per
contra,
relies upon the decision of this Court in Mliswa's
case, supra,
which concerned the disciplinary powers of the Speaker of Parliament.
It was held, at p12 ff., that the power granted to the Speaker was
independent of that given to Parliament and that it was not exercised
on behalf of Parliament. It was further held that, where disciplinary
authority and powers are conferred upon two functionaries, the
exercise of power by one of them cannot be imputed to the other in
the absence of clear provisions to that effect.
There
is no doubt that the PLC is a creature that is sui
generis.
Although
section 139(2)(b) of the Constitution states that Standing Orders may
provide for the appointment and functions of committees and the
delegation of functions to them, the PLC is not established in terms
of that provision.
Instead,
section 152(1) provides that the Committee on Standing Rules and
Orders must appoint the PLC as soon as is practicable after the
beginning of each session of Parliament.
Thus,
the PLC is specifically established by imprimatur
of the Constitution itself and Parliament has no discretion as to
whether or not to establish the PLC.
Turning
to “cases from across the Limpopo” the decision of the South
African Constitutional Court in the Doctors
for Life International case, supra
is particularly instructive.
The
position was taken, at paras 29 and 30, that an obligation imposed on
a component of Parliament, in this instance, the National Assembly
and the National Council of Provinces, is an obligation imposed on
Parliament itself. Consequently “if either of these democratic
institutions fails to fulfil its constitutional obligation in
relation to a bill, the result is that Parliament has failed to
fulfil its obligation”.
In
similar vein, in the case of Land
Access Movement of South Africa & Ors v Chairperson of the
National Council of Provinces & Ors
2016 (5) SA 635 (CC), at para 6, it was opined that “where either
House fails to satisfy its own obligation…. in the process of
making law, Parliament as a whole has failed in its constitutional
obligation”.
Reverting
to our own jurisdiction, the question that arose in Gonese's
case, supra,
related to the allegation that Parliament had failed to fulfil its
constitutional obligation in that, inter
alia,
the PLC had not performed its duty under section 152(3)(a) to examine
every non-constitutional bill before it received its final vote in
the Senate or the National Assembly. This Court proceeded on the
clear basis that the obligation imposed upon the PLC was one that was
imposed on Parliament itself.
It
was observed that “the duty vested in the PLC by the peremptory
provisions of section 152(3) of examining every bill…. is a
critical substantive obligation imposed upon the PLC to ensure that
Parliament is fully apprised of any constitutional defect in proposed
legislation….”. Consequently, it was found that the alleged
failure to comply with the provisions of section 152(3) was a matter
that was “subject to the exclusive jurisdiction of this Court
within the contemplation of section 167(2)(d) of the Constitution”.
In
my assessment, the decision of this Court in Mliswa's
case, supra,
is clearly distinguishable, having regard to the situation that arose
in that case.
The
disciplinary power given to the Speaker was specifically independent
of that given to Parliament. Again, the exercise of disciplinary
authority and power by the Speaker could not be imputed to Parliament
in the absence of clear provisions to that effect. And lastly, there
was no factual or legal basis for finding that Parliament had any
supervisory role over the Speaker in matters concerning the
discipline of its Members.
On
a proper analysis of the situation in
casu,
I take the view that it is fundamentally different from that in
Mliswa's
case.
First
and foremost, the obligation imposed upon the PLC to examine every
statutory instrument in terms of section 152(3)(c) and to submit its
report to Parliament is designed to apprise Parliament of any
constitutional defect in instruments that have been promulgated.
As
was aptly recognised in Gonese's
case, supra,
the purpose of this exercise is to enable Parliament “to rectify
such defect in order to secure due conformity with the Constitution”.
In
essence, the obligation of the PLC under section 152(3) is not a
stand-alone function in which the PLC acts as an autonomous
monitoring body. On the contrary, it is an intrinsic component of the
overall legislative process of Parliament as the primary law-making
authority under the Constitution.
In
the performance of its scrutiny functions under section 152(3), the
PLC constitutes a necessary adjunct of Parliament itself, acting
under its aegis and oversight, with the ultimate objective of
securing the constitutional integrity of all proposed and published
legislation within its prescribed remit.
In
the premises, I conclude that the obligations imposed on the PLC, in
terms of section 152(3) as a whole and by section 152(3)(c) in
particular, are obligations that are imposed upon Parliament as the
ultimate legislative authority.
Accordingly,
any failure on the part of the PLC to fulfil any of its obligations
under section 152(3) constitutes a failure to fulfil a constitutional
obligation by Parliament itself.
I
am fortified in this conclusion from a broader perspective.
Generally
speaking, Parliament carries out its legislative functions through
the National Assembly and the Senate as well as the panoply of
committees that operate under the auspices of both Houses of
Parliament. While some of the actions of certain officials, such as
the Speaker and the President of the Senate, may not be imputed
directly to Parliament, the juristic acts of its committees are
invariably attributable to Parliament. Such committees exist purely
to carry out the functions of Parliament itself. Equally importantly,
the committees of Parliament do not have any legal personae
of their own and cannot sue or be sued in
suis nominis.
In
short, the committees of Parliament, including the PLC, exist and
operate as necessary appendages of Parliament itself.
Functions
and Obligations of the PLC under Section 152(3)
Section
152(3), in its relevant portions, provides as follows:
“The
Parliamentary Legal Committee must
examine
–…. (c) every statutory instrument published in the Gazette;….
and
must report to Parliament
…. whether it considers any provision in the…. statutory
instrument …. contravenes or, if enacted, would contravene any
provision of this Constitution.” (my emphasis)
The
obligation of the PLC under para (c) of section 152(3) is
self-evident. It is essentially two-fold:
(i)
to examine every statutory instrument published in the Gazette;
and
(ii)
to report to Parliament on the constitutionality or otherwise of the
statutory instrument.
The
two functions are not only mandatory but are also conjunctive.
The
examination of an instrument without the submission of a report
thereon does not suffice to satisfy the obligation imposed upon the
PLC by section 152(3)(c). Moreover, by dint of section 324 of the
Constitution “all constitutional obligations must be performed
diligently and without delay.”
Mr
Zhuwarara,
for the respondent, accepts that the PLC is obligated to examine
every statutory instrument but contends that it is only required to
submit its report to Parliament, or other functionary identified in
section 152(3), where it decides to issue an adverse report on the
instrument. This would be the case both where the PLC considers the
instrument to be in contravention of the Constitution, as
per
section 152(3), or where it deems it to be ultra
vires
its enabling Act, as
per
section 152(4). Thereafter, the adverse report is debated by the
National Assembly and the Senate.
Mr
Madhuku,
for the applicant, contends otherwise.
He
submits that the PLC must examine and report on every statutory
instrument. Whether its report is adverse or not is quite immaterial
in determining the constitutionality or vires
of the instrument.
In
this respect, the PLC cannot justify the need to consult ZEC in
delaying the submission of its report.
I
fully agree with counsel for the applicant.
Firstly,
I am unable to find anything in section 152 or elsewhere in the
Constitution to justify the contention that the PLC's obligation to
present its report on the constitutionality or otherwise of statutory
instruments is confined to those instances where it decides to issue
an adverse report on the instrument under consideration.
Secondly,
the PLC's functions under section 152(3) are peculiar to its own
mandated obligation thereunder and must be fulfilled independently of
any other institution or public office. In this connection, the PLC
cannot invoke the need to consult or interact with ZEC as a valid
ground for withholding the submission of its report to Parliament. To
do so would be to violate the constitutional injunction to perform
its obligation diligently and without delay.
Standing
Orders 33 and 98
In
assessing the functions of the PLC, it is necessary to have regard to
certain provisions of the National Assembly Standing Orders (Public
Business), 9th
edition, 2020.
The
conduct of the proceedings of the PLC is governed by Order 33.
In
terms of suborder (6)(d), the PLC must present its report to the
House, in the case of a statutory instrument published in the
Gazette,
within a period of twenty-six business days beginning on the first
day of the month next following the month in which the instrument was
published.
By
virtue of suborder (7)(a), the Speaker in consultation with the
President of the Senate may, upon application by the Chairperson of
the PLC, extend that period for a further period of twenty-six
business days. The Speaker may do so, if he or she considers it
proper on account of the length or complexity of the instrument or
the prevailing workload of the PLC or for any other sufficient
reason.
Turning
to Order 98, which prescribes the rules to be observed by Members,
suborder (1)(e) stipulates that “No member must, while speaking to
a question – …. (e) refer to any matter on which a judicial
decision is pending; …. "
The
other restrictions placed upon Members relate to, inter
alia
the irreverent use of the name of the President, inappropriate
references to other Members, the use of derogatory, disrespectful,
offensive or unbecoming words, using the right of speech for the
purpose of obstructing proceedings of the House, and anticipating the
discussion of any other subject which appears on the Order Paper.
Having
regard to suborder (1)(e) in particular, the question that arises is
whether or not the PLC was justified in withholding its report on the
constitutionality or otherwise of S.I. 144/22.
The
respondent's position in this respect is that the PLC was so
justified so as to avoid canvassing issues that were sub
judice
before the High Court in Case No. HC6083/22.
Mr
Zhuwarara
submits that Order 98(1)(e) precludes any comment on any matter
pending before any court. In this case, the PLC had already taken the
view that the impugned statutory instrument did not violate the
Constitution and was simply awaiting consideration of the statutory
vires
of the instrument as envisaged by section 152(4) of the Constitution.
Mr
Zhuwarara
further relies on Standing Order 33(3) which enables the PLC to
receive such evidence as is required for the performance of its
functions in terms of the Constitution. The PLC was therefore
entitled to await the views of ZEC before concluding and submitting
its report on both the constitutionality as well as the vires
of S.I. 144/22.
Mr
Madhuku,
on the other hand, submits that Order 98(1)(e) relates to the decorum
of Members when speaking in Parliament. It does not impact upon the
obligation of the PLC under section 152(3) of the Constitution to
examine and report on every published statutory instrument.
The
restriction imposed by suborder (1)(e) is subordinate to the
obligation of the PLC to fulfil its constitutional functions and is
not relevant to the performance of those functions.
Mr
Madhuku
also relies on the timeline requirement of twenty-six days stipulated
by Order 33(6)(d), within which period the PLC is enjoined to submit
its report to Parliament.
This
timeframe must be complied with and does not permit any delay based
on the need to consult or take evidence from other public bodies.
Having
regard to the wording of Order 33(3), there can be no doubt that the
PLC was duly authorised to receive evidence from ZEC in the process
of conducting its examination of S.I. 144/22. The more critical
question is whether or not it was entitled to wait indefinitely in so
doing.
Given
the peremptory language of Order 33(6), spelling out “the periods
within which the [PLC] must report to the House” the answer to this
question must be given in the negative.
The
impugned statutory instrument was promulgated on 19 August 2022.
Allowing for the period of twenty-six business days prescribed by
suborder (6)(d), coupled with the additional twenty-six business days
permitted by suborder (7)(a), assuming that the PLC had applied for
and been granted this extension, the deadline for the submission of
the PLC's report to Parliament would have expired in the middle of
November 2022.
As
at the date when this matter was heard, i.e.
in June 2023, the time that had elapsed was a period of seven months
beyond the stipulated deadline. This is patently outside the
timeframe contemplated by Order 33(6)(d).
The
next question concerns the requirements of Order 98(1), and suborder
(1)(e) in particular.
It
stipulates that “No Member must, while speaking to a question….
refer to any matter on which a judicial decision is pending”.
The
argument that the remainder of Order 98(1) is largely devoted to
issues pertaining to the decorum and proper conduct of Members during
the course of proceedings is fairly attractive. However, I do not
think that the broader context of Order 98(1) can legitimately be
allowed to detract from the specific stricture contained in suborder
(1)(e).
It
is sui
generis
in nature and its mandatory prohibition cannot be disregarded.
Whether it is applicable and enforceable in
casu
is an entirely separate matter.
It
cannot be disputed that Order 98(1)(e) is quite obviously an extant
law in the broadest sense and that it must therefore be complied with
unless and until it is set aside. See Biti
& Anor v Minister of Justice, Legal and Parliamentary Affairs &
Anor
SC 10-02.
On
the other hand, the injunction embodied in section 152(3) of the
Constitution is unequivocally clear. The PLC “must examine” every
published statutory instrument and thereafter “must report to
Parliament” on the constitutionality or otherwise of the instrument
so examined.
In
my opinion, the PLC is duty bound to carry out both of those
functions notwithstanding anything to the contrary contained in the
Standing Orders of Parliament.
Section
152(3) undoubtedly constitutes a normative injunction of a higher
order, while Order 98(1)(e) must be regarded as a subordinate or
subservient norm, which must therefore defer and succumb to the
superior authority of section 152(3).
To
the extent that Order 98(1)(e) is inconsistent with or prejudices the
fulfilment of the obligation mandated by section 152(3) of the
Constitution, it is the latter that must prevail.
And
I am amply fortified in this approach from my analysis of the purpose
of the sub
judice
rule and the established qualifications to that rule.
The
Sub Judice Rule
The
term sub
judice
is defined in Black's
Law Dictionary
as meaning “before a court or judge for determination”.
Depending
on the circumstance or setting of its usage, it may be viewed as a
rule of court, a statutory rule, a parliamentary convention or simply
a practice that has developed in the interaction between the media
and public officials. At its core, it is aimed at preventing the
publication of statements that may prejudice court proceedings.
In
the context of the present case, the focus of the sub
judice
rule is centred on the relationship between Parliament and the
judiciary under the lens of the separation of powers doctrine.
To
what extent can Parliament deal with a matter that is the subject of
legal proceedings in a court of law?
The
question emanates from the clearly defined constitutional parameters
of the two institutions as explicated in the celebrated case of Smith
v Mutasa & Anor
1989 (3) ZLR 183 (SC) at 192D-H.
The
general principle is that when the judiciary is seized with a matter,
even Parliament has to defer to the judicial process.
The
primary purpose of the sub
judice
rule
is
to obviate a real risk of interference with the due administration of
justice. See S
v Hartmann & Anor
1983 (2) ZLR 186 (SC) at 196 F-H.
It
is aimed at preventing external factors from influencing the
determination or outcome of legal proceedings and, consequently, the
course of justice. See Kwaramba
v Bhunu N.O.
2012 (2) ZLR (S) at 367C-E.
The
specific duty of Parliament to observe the sub
judice
rule
was expressly recognised and reaffirmed in Zvoma
N.O. v Moyo & Ors
2012 (1) ZLR (H) at 124E-F.
The
rule is recognised as an essential component of the rule of law and,
from that perspective, as binding on the conduct of Parliament.
Having
set out the underlying objective of the sub
judice
rule, I turn to consider the extent to which it may be qualified or
departed from in practice.
And
in the particular context of the present matter, to what extent can
Parliament, through the PLC, resile from the sub
judice
rule in fulfilling its obligations under section 152(3) of the
Constitution?
In
the United Kingdom, the sub
judice
rule has been formalised and entrenched in its parliamentary
practice, both in the House of Lords and in the House of Commons. As
appears from Companion
to the Standing Orders and Guide to the Proceedings of the House of
Lords
(21st
edition, 2007):
“The
privilege of freedom of speech in Parliament places a corresponding
duty on members to use the freedom responsibly. This is the basis of
the sub
judice
rule. Under the rule both Houses abstain from discussing the merits
of disputes about to be tried and decided in the courts of law.”
The
2007 Companion
and Guide
also cites a resolution adopted by the House of Lords on 11 May 2000,
which reads as follows:
“That,
subject
to the discretion of the Lord Speaker, and to the right of the House
to legislate on any matter or to discuss any delegated legislation,
the House in all its proceedings (including proceedings of committees
of the House) shall apply the following rules on matters sub
judice
…. .” (my emphasis).
This
approach is also confirmed vis-a-vis
the House of Commons by Erskine May: Parliamentary
Practice,
(21st
edition, 1989):
“The
House has resolved that no matter awaiting or under adjudication by a
court of law should be brought before it by a motion or otherwise.….
This rule may be waived at the discretion of the Chair. …. The
general rule also applies to motions for leave to bring in bills but
the House has expressly resolved that the sub
judice
rule is qualified by the right of the House to legislate on any
matter.”
(my emphasis)
The
foregoing exposition demonstrates that the sub
judice
rule is firmly established in the parliamentary practice and
procedures of both England and Zimbabwe.
However,
it also demonstrates that the rule is not absolute or immutable and
has been qualified through proactive parliamentary practice designed
to facilitate and enhance the performance of parliamentary duties and
functions.
Furthermore,
with particular reference to England, the rule is explicitly
qualified by the right of Parliament to legislate on any matter or to
discuss any delegated legislation.
The
latter qualification is of singular significance in the context of
the present application.
This
arises from the provisions of sections 3 and 4 of the Privileges,
Immunities and Powers of Parliament Act [Chapter
2:08].
By
virtue of section 3(b) of the Act:
“Parliament
and members and officers of Parliament shall hold, exercise and enjoy
–….
(b)
all such other privileges, immunities and powers…. as were
applicable in the case of the House of Commons of the Parliament of
the United Kingdom, its members and officers, respectively, on the
18th
April 1980.”
The
provisions of section 3(b) are buttressed by section 4 which
stipulates that:
“The
privileges, immunities and powers of Parliament and members and
officers of Parliament shall be part of the general and public law
and it shall not be necessary to plead them but they shall be
judicially noticed in all courts.”
The
intention and effect of these provisions are unquestionably clear.
Our
Parliament, as well as its members and officers, enjoy the same
privileges, immunities and powers as were applicable and enjoyed in
the House of Commons as at 18 April 1980.
As
I have earlier postulated, the PLC is an intrinsic and essential
component of Parliament itself. By the same token, the procedures and
functions of the PLC are inextricably intertwined with the
legislative processes of Parliament. Thus, when the PLC is engaged in
performing its functions under section 152(3) of the Constitution, it
is also involved in exercising the power and right of Parliament to
legislate on any matter or to discuss any delegated legislation.
On
that premise, having regard to the established practice of the House
of Commons, the PLC should not be hamstrung by the strictures of the
sub
judice
rule in the course of examining and reporting on legislation under
section 152(3) of the Constitution. In short, for this reason and the
reasons stated earlier pertaining to the subordinate status of
Standing Orders generally, the sub
judice
restriction imposed by Standing Order 98(1)(e) does not apply to the
circumstances of the present matter.
Whether
the PLC Fulfilled its Obligation
In
its opposing affidavit, at paras 6.5 to 8.2, the respondent makes the
following averments:
(i)
The PLC postponed consideration of the matter until the High Court
has made its determination;
(ii)
Parliament has not yet received the PLC's report as the PLC is
waiting for the finalisation of Case No. HC6083/22;
(iii)
The issue of nomination fees will be considered by the PLC after
finalisation of Case No. HC6083/22;
(iv)
No report has been placed before Parliament for consideration as the
matter is still pending before the High Court.
Mr
Zhuwarara,
for the respondent, notes that the PLC did examine all the statutory
instruments which had been published in August 2022, including S.I.
144/22. The PLC found that none of these instruments was in violation
of any provision of the Constitution. However, the PLC resolved not
to issue a non-adverse certificate until they had a meeting with ZEC.
This was clearly reflected in the minutes of the PLC, dated 26
September 2022. Accordingly, so submits Mr Zhuwarara,
the PLC did carry out its constitutional obligation to analyse S.I.
144/22 and did take a view as to its constitutionality.
As
I have already stated, the obligation imposed on the PLC under
section 152(3)(c) of the Constitution is two-fold:
The
first function is to examine every statutory instrument published in
the Gazette.
The second function is to submit its report to Parliament, within the
stipulated timeframe of twenty-six or fifty-two business days, as the
case may be, as to the constitutionality or otherwise of the
instrument. These two functions are disparate but conjunctive. The
performance of the former without completing the latter does not
serve to satisfy the two-fold requirements of section 152(3)(c).
In
casu,
it is abundantly clear that the PLC did examine the impugned
statutory instrument. Whether it did so in a lackadaisical or cursory
fashion is immaterial for present purposes. What matters is that it
did not at any stage, let alone within the prescribed maximum time
limit of fifty-two working days, submit to Parliament its report on
the constitutionality of S.I. 144/22. Pursuant to the jurisdictional
remit of this Court under section 167(2)(d) of the Constitution, I
accordingly conclude that Parliament, acting through the PLC, failed
to fulfil its constitutional mandate and obligation under section
152(3)(c) of the Constitution.
The
Availability of Alternative Remedies
According
to the respondent, the present application is one for a review of the
impugned statutory instrument rather than the constitutionality of
the PLC's conduct. Therefore, the applicant should instead have
approached the High Court for review under the Administrative Justice
Act [Chapter
10:28]
on the basis that ZEC's decision to set the high nomination fees
was either unlawful or irrational.
This
argument essentially invites the Court to apply the twin doctrines of
subsidiarity and avoidance as well as the associated concept of
ripeness.
I
fully agree that S.I. 144/22 could have been subjected to review on
established administrative law grounds. Nevertheless, I take the view
that this possibility does not necessarily bar or preclude the
applicant from bringing the present application to this Court.
Properly
regarded, an administrative law action on the basis of gross
unreasonableness is essentially a cause of action intended to
vindicate the fundamental right to administrative justice under
section 68(1) of the Constitution, as read with the locus
standi
requisites prescribed by section 85(1).
This
is quite distinct from a cause of action under section 167(2)(d) of
the Constitution which is a special procedure designed to redress an
alleged failure on the part of the President or Parliament to fulfil
a constitutional obligation.
Thus,
where the facts of any case give rise to alternative causes of action
under both Chapter 4 and section 167(2)(d) of the Constitution, a
litigant cannot be barred for opting to proceed under section
167(2)(d).
This
is particularly so given the overarching need for constitutional
obligations to be performed timeously and diligently, as is dictated
by section 324 of the Constitution.
Consequently,
the respondent's objection in this regard lacks merit and is
therefore dismissed.
The
Appropriate Remedy
The
relief sought by the applicant is two-pronged. The first prong is a
declaration that the respondent failed to fulfil its constitutional
obligation under section 152(3)(c) of the Constitution in respect of
S.I. 144/22. The second prong is a declaration that the Regulations
embodied in S.I. 144/22 are null and void and of no force or effect.
Section
175(6) 0f the Constitution sets out the powers exercisable by the
courts when dealing with constitutional matters. It provides as
follows:
“When
deciding a constitutional matter within its jurisdiction a court may
–
(a)
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of the inconsistency;
(b)
make any order that is just and equitable, including an order
limiting the retrospective effect of the declaration of invalidity
and an order suspending conditionally or unconditionally the
declaration of invalidity for any period to allow the competent
authority to correct the defect.”
Mr
Madhuku
initially argued that, once the Court decides to grant the first
declarator, the only just and equitable remedy available was to set
aside or invalidate the impugned statutory instrument.
The
remedy granted must vindicate the Constitution and the Court has a
special role to deal with sensitive political matters. He further
argued that, while an order of mandamus
was acceptable, the more effective remedy was to set aside S.I.
144/22.
Mr
Zhuwarara
countered that neither remedy was acceptable.
In
any case, he was averse to an order of mandamus
as the PLC had not as yet completed its process of examining the
impugned instrument. The PLC was awaiting a dialogue with ZEC before
issuing its adverse report or non-adverse certificate.
In
the peculiar circumstances of this case, I take the view that a
declaration of nullity or invalidity would be inappropriate and
incompetent, even though that might settle the question as to the
intrinsic constitutionality of S. I. 144/22.
Firstly,
the Court cannot deal with that question because the applicant has
not directly asked it to do so.
Secondly,
the basis of the declaration of invalidity sought by the applicant,
as it appears from the draft order, is that S.I. 144/22 be declared
invalid as a specific consequence of the respondent's failure to
examine the instrument, and not because it was inherently
unconstitutional.
I
do not think that this is legally permissible, as the validity of a
statutory instrument, including S. I. 144/22, does not depend upon
whether or not the PLC has examined it.
Paragraph
9(1) and (2) of the Fifth Schedule to the Constitution stipulates the
procedure to be followed when the PLC reports adversely on a
statutory instrument to Parliament.
In
effect, even if the PLC and Parliament have resolved that the
instrument is unconstitutional, it remains in force until it is
repealed by the authority which enacted it (in this case ZEC) or is
declared to be invalid by this Court.
In
short, a statutory instrument cannot become invalid simply because
the PLC has failed to examine it.
In
the considered opinion of the Court, the most just and equitable
order, and therefore the most appropriate remedy in
casu,
is an order of mandamus
calling upon the respondent to comply with its constitutional
obligation under section 152 of the Constitution within a specified
period.
This
accords with the jurisdictional competence of the Court to order
Parliament to conclude its mandated process and thereby vindicates
the obligation to fulfil the peremptory requirements of section 152
of the Constitution.
It
is for the foregoing reasons that the Court delivered the order set
out at the beginning of this judgment.
GWAUNZA
DCJ: I agree
GARWE
JCC: I agree
MAKARAU
JCC: I agree
GOWORA
JCC: I agree
HLATSHWAYO
JCC: I agree
GUVAVA
AJCC: I agree
Lovemore
Madhuku Lawyers,
applicant's legal practitioners
Chihambakwe,
Mutizwa & Partners,
respondent's legal practitioners
