Is it possible for a constitutional amendment to be unconstitutional? This matter used to exercise the minds of academic lawyers and might have seemed esoteric to practitioners. However, in recent years, there has been much discussion over the question of the constitutionality of constitutional amendments. A case decided by Zimbabwe’s Constitutional Court on 31 March 2020 dealt with this question, with both significant and controversial outcomes.
The first part of this BSR deals with this case, demonstrating the paradox it presents, being at once a progressive and retrogressive judgment. The BSR examines why the Constitutional Court made a mess of what was an otherwise progressive judgment.
The second part of the BSR examines an even more controversial and toxic circumstance. After a wait of 7 years, Zimbabwe failed to properly constitute its Constitutional Court, a classic failure, if any was needed of the government’s refusal to implement the Constitution. I examine why the government and the Judicial Services Commission failed and/or refused to comply with section 180 of the Constitution concerning the appointment of judges of the Constitutional Court.
Due to the nature of the subjects it deals with, this BSR could legitimately make a claim to the heavyweight division, such is its size. I begin with the legal paradox.
In 2017, two MDC MPs, Innocent Gonese and Jessie Majome launched legal proceedings against Parliament challenging the validity of Constitutional Amendment Act (No. 1) 2017. They argued that the special parliamentary procedure used to pass the Constitutional Bill was flawed and that Parliament had failed in its duty to uphold the Constitution. The application was brought in terms of section 167(2)(d) of the Constitution which gives power to the Constitutional Court to decide on the constitutionality of Parliament’s conduct.
The government had sought to amend section 180 of the Constitution concerning the procedure for appointing the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court. Under the original procedure, appointments were made by the President from a short-list of candidates submitted by the Judicial Services Commission following a public interviewing process. The amendment sought to change this procedure so that the President would have greater powers of discretion and would only consult the JSC without the obligation to follow its advice. The amendment also affected the appointment by the Chief Justice of judges of the Labour Court and the Administrative Court.
A controversial amendment
The amendment was controversial and critics argued that it reversed the gains of the 2013 Constitution which had brought openness, transparency, accountability and checks and balances to the process of appointing judges. Previously, the President had enjoyed greater sway in the process of appointing judges with no serious checks and balances.
Others were not impressed by this new process and just before the start of the process to appoint a new Chief Justice in late 2016, the then Minister of Justice, Emmerson Mnangagwa started plans to introduce Constitutional Amendment Bill (No. 1) to change the way the Chief Justice and other senior judges were appointed. However, attempts to stop the appointment of the Chief Justice which was underway failed. It is ironic that 4 years later, the amendment is still facing legal challenges.
The argument against the amendment
Gonese and Majome contended that when Parliament passed the Constitutional Bill in 2017, the process did not meet the requirements of section 328(5) of the Constitution, which requires such a Bill to be passed by two-thirds of the membership of the National Assembly and the Senate sitting separately. Since the President had already signed the Bill into law, they filed a new application challenging the validity of the Constitutional Amendment Act (No. 1). The fact of what the applicants were challenging is very important because, as we shall see, the Court’s failure to distinguish the Bill and the Act, led it to issue a very clumsy and illegal order to remedy the defect.
The Court agreed that there was a violation of the parliamentary procedure since there was no two-thirds majority vote in the Senate. 53 instead of 54 Senators had voted for the Bill. Consequently, the Court declared that “the Bill” was invalid “to the extent of the inconsistency” and set it aside. Note again that the Court was referring to “the Bill”, not the Act. Keep this in mind because this was a fundamental weakness of the judgment. In any event, this declaration of invalidity came with an important qualification.
Suspension of the declaration of invalidity
The qualification is that the Court suspended the declaration of invalidity for a period of one hundred and eighty days during which period the Senate was directed to conduct a new vote conforming with section 328(5) of the Constitution. This means if the Senate does not regularise the process within the 180 days, the declaration of invalidity would become final. It is this qualification to an otherwise historic judgment that is highly problematic. First, however, before looking at the problems with this qualification, it is important to take note of the historic significance of the judgment.
Unconstitutionality of constitutional amendments
The legal significance of this case is that it marks an important precedent that a constitutional amendment can be unconstitutional on procedural grounds. By declaring a constitutional amendment invalid and setting it aside, the Court follows progressive jurisprudence and academic literature on the question of unconstitutional amendments to the Constitution. The question of whether constitutional amendments can be unconstitutional has exercised the minds of constitutional scholars in recent years. This judgment adds to the pot of constitutional jurisprudence affirming the view that constitutional amendments can be challenged for their unconstitutionality.
As the Court stated, there is a good reason why there is a special procedure for amending the constitution, which differentiates it from the procedure for amending ordinary legislation. It is part of what is dubbed “amendment difficulty”, which denotes the strict procedure by which a constitutional clause can be changed. The idea is to ringfence the constitution so that it is not amended at the whims of the majority at any particular moment. As the Court stated, “The power to amend the Constitution is a limited power. It is conferred on the Legislature for the purpose of ensuring that it is used to produce good governance and the happiness of the people.” The rationale for amendment difficulty is well captured by the Court when it states,
“The amendment of the Constitution is a matter on which the public places a lot of importance. A swift and easy method of amending the Constitution would weaken the sense of security which the rigid Constitution gives. There would be too little distinction from the method for amending ordinary legislation. That would erode the special status of the supremacy of constitutional law. The Constitution would not occupy the special place it occupies today in the country’s legal system. Changing provisions of the Constitution without following the special procedure provided for in s 328 would expose the Constitution to passing interests. The idea reigns that solidity and security are the most vital attributes of a fundamental law.”
It is clear, therefore, that Section 328 was designed to safeguard the Constitution from whimsical parliamentary majorities. It contains several layers of protection for different parts of the Constitution. For example, the Declaration of Rights cannot be amended unless it is improving existing rights and only after approval at a referendum. This particular amendment was not affecting the Declaration of Rights directly but still, the level of protection is that it must be approved by a two-thirds majority in each of the two chambers of Parliament - the National Assembly and the Senate. This is the lowest level of protection, but still, the government was being accused of violating it.
The fact that the Court ruled that the amendment was unconstitutional because of procedural irregularities reinforces the protections given in section 328. It shows that these protections are real and that their strength depends on the readiness of the Court to protect them. As it stated in the judgment, “The interpretation of s 328(5) of the Constitution must seek to give effect to the fundamental values on which a republican form of government is founded.” It is no mean feat to overturn a constitutional amendment and for this reason, the precedent deserves to be celebrated. In future, the government will take extra caution to ensure compliance to avoid the embarrassment of an amendment being invalidated and set aside by the Court. As the Court warned, “They [the government] have to appreciate the legal consequences of failure to act in accordance with the procedures prescribed by s 328 of the Constitution.”
The judgment is also important in that it showcases the role of the Court in safeguarding the Constitution against unconstitutional amendments. The Court reaffirmed its role, stating, “The Court is the highest institutional expression of the rule of law. Its duty is to enforce respect for and the maintenance of the constitutional order. The constitutional order is characterised by a fundamental system of values in terms of which validity of all legislation and other official acts or conduct must be assessed. Thus, any branch or level of Government, including Parliament, that violates the Constitution or refuses to carry out a constitutional duty can be called to account in a proper proceeding before the Court.”
This means Parliament can be held accountable for its failure to discharge its constitutional obligations. The Court has exclusive jurisdiction in terms of section 167(2)(d) of the Constitution concerning the question of whether Parliament fulfilled its constitutional obligations. The Court considers the conduct of Parliament and whether it has met its constitutional obligations.
Nevertheless, having noted the positive points about the judgment, the qualification left much to be desired and it is to that part that I now turn in my examination.
The Controversial Qualification
After analysing the events which transpired during the passing of the Constitutional Amendment Bill (No.1), the Court found that while the National Assembly had complied with the rules, the Senate had breached the rules in that it did not receive a two-thirds majority vote. The Court held that this was a violation of the constitutional amendment procedure which also breached the principles of constitutional supremacy and the rule of law.
However, the Court relied on a provision of the Constitution which allows it wide discretion to make an order which is “just and equitable” in the circumstances. This provision, section 175(6)(b) of the Constitution, allows the Court to make an order which suspends, with or without conditions, the declaration of invalidity for a while to allow the competent authority to correct the cause of invalidity. The Court used this provision to suspend the declaration of invalidity for 180 days to allow Parliament to correct the defect.
The Court took this approach on the reasoning that the invalidity of the Senate process was severable from the validity of the process in the National Assembly. In the Court’s view, the procedure of passing Bills is that the processes in the National Assembly and the Senate are “two different but complementary processes”. It had found that the process in the National Assembly was regular, while the process in the Senate was irregular. Based on this distinction, the Court concluded that the invalidity of a process in one chamber did not affect the validity of the process in another. In the words of Chief Justice Malaba, “The invalidity of the proceedings in the Senate does not affect the validity of the proceedings in the National Assembly”.
It was on this basis that the Court concluded that, “The Senate ought to be afforded an opportunity to conduct the vote with a full appreciation of what is required for a Constitutional Bill to be passed.” Accordingly, the Senate was directed to conduct a vote within 180 days, in compliance with section 328(5) of the Constitution. This order is highly questionable. The next part examines the reasons why the Court order is flawed.
Confusing a Bill and an Act of Parliament
The first problem is that the declaration of invalidity by the Court was parallel to the declaration of invalidity that the applicants were seeking. The applicants asked the Court to set aside the Constitutional Amendment Act (No.1) but for some inexplicable reason, the Court set aside Constitutional Bill (No.1). To make it clear, the applicants were challenging the validity of an Act of Parliament, because the President had already signed the Bill into law. Indeed, under sections 132 and 133 of the Constitution, the Act of Parliament had already been enrolled and come into operation.
On the other hand, the Court declared that the Bill was invalid. The Court was wrong because what was before it was not a Bill but an Act of Parliament. To use a metaphor, Gonese and Majome asked for a cow, and while the Court agreed that they deserved to be compensated, it gave them a goat instead of a cow.
Was this a mistake by the Court? If a mistake, was it of the innocent variety? How could all 9 learned judges of the Court make such a mistake? The Chief Justice set aside a Bill instead of an Act of Parliament and none of them noticed that he was wrong? There is no single dissenting opinion from the other judges. They all concurred with the Chief Justice. It is difficult to imagine that it was just a mistake. The distinction between a Bill and an Act of Parliament is elementary. The consequences of treating a legal instrument as a Bill or as an Act of Parliament are different. Likewise, the consequences of setting aside a Bill or an Act was also different.
Treating it as a Bill gave the Court a leeway to suggest that it could be fixed by simply returning it to Parliament. If the judges had retreated it as an Act, as they should have, they would have known that they had no authority to return it to Parliament for a quick-fix. This is because once the Court finds that an Act is invalid, it would not have made the order as it did, returning the Act to Parliament to be fixed. It does not have the authority to do that. The judges must have known the absurdity of doing so, and this led them to invent a new application for the applicants, treating their challenge as one against a Bill rather than an Act.
Misdirection over the nature of the defect
The second issue is that the Court misdirected itself over the nature of the defect and the proper way to correct it. The Court saw the defect as a wound that could be patched up, not as a fatal one. The Court thought the defect could be cured by sending the “Bill” back to Parliament so that the Senate could conduct a new vote. We have already observed that this was a mischaracterisation of what was being challenged. This was no longer a Bill in the hands of Parliament. The Court expects Parliament to shut the gates when the horses have already bolted. It is the Act that is fatally defective, no longer a mere Bill. The solution is not for the government to patch up a fatally defective law but to start afresh.
Lapse of Bill at the dissolution of Parliament
The third ground of objection is that the Court failed to take cognisance of the fact that the Bill had lapsed by operation of law because the Parliament which considered it was dissolved on the eve of elections in July 2018. It is a well-established principle of law that all Bills lapse at the time of dissolution of Parliament. For the avoidance of doubt, this is provided for in section 147 of the Constitution which states,
“On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses”.
This means when Parliament dissolved in July 2018, all Bills that were before it lapsed. Even if we assume that the Court was right to treat it as a Bill, under section 147 of the Constitution, that Bill lapsed in 2018. All proceedings, including proceedings of the National Assembly which the Court held to be valid, were terminated at that dissolution. It makes no sense for the Court to direct the Senate to reconsider a lapsed Bill because it no longer exists. The Court has no power to revive a Bill which lapsed by operation of law. Indeed, it has no power to direct Parliament how it must conduct its business except to ensure it is constitutional.
Taking Parliament for Granted
Furthermore, the decision shows that the Court took Parliament for granted, assuming that the current Parliament shares the same view concerning the amendment as the old Parliament. It is asking the Senate of a new Parliament to consider and vote on a Bill from a National Assembly of an entirely different Parliament. The attitude of the Court is that Parliament is a mere rubber-stamp and all that's required is for the Senate to vote again. It might seem easy where a single party has maintained a majority in both parliaments. However, even then, there is no guarantee that members of the current Parliament share the same view as members of the old Parliament. Indeed, if the legal position taken by the Court were correct, it would cause serious complications where there is a new ruling party in charge of the government.
One reason why existing Bills lapse when Parliament dissolves is that when a new Parliament begins, there will be a new government which will have its legislative agenda. It cannot be forced to take on the legislative agenda of a previous Parliament. This is effectively what the Court is asking the current Parliament to do - to take on a Bill from the old Parliament. As we have already observed, that Bill lapsed when the old Parliament dissolved.
The Court might have thought its quick-fix was a pragmatic solution to the problem but, as a matter of law, it is a simplistic, clumsy and incompetent approach to a complex legal matter. It should simply have set aside a fatally defective law of the previous Parliament. If the government wants to bring back the same amendment, it has to start afresh in a new Parliament and allow it an opportunity to go through the special procedure.
Lowering the bar
It is ironic that having made so much sense in articulating the reasons for having a robust set of special amendment provisions for protecting the Constitution, the Court lowered the bar by creating a shortcut to correct an incurable defect. The shortcut is not just clumsy; it is legally flawed. Once the Court found that the special amendment procedure provided for under section 328(5) had been violated and the amendment was unconstitutional, the proper approach was to set it aside and leave the government to start again if it still wished to carry out the amendment. As it stands, the current Senate (and Parliament as a whole) is being asked to reconsider and vote on a Bill which is non-existent because it lapsed by operation of law.
The government must carry the costs of political arrogance. The applicants brought their case before the President had given assent to the Bill. The applicants were forced to change their applications after the presidential assent because they were now challenging a law, not a Bill. The government had ample time to take corrective measures. But it was intransigent. The cost of arrogance is that when you are found to have committed an invalid act, you have to start again. In its attempt to make it easy for the government, the Court has waded into a pool of illegalities, creating quite a mess for itself in the process.
Why did the Court make such a defective order?
It is also ironic that in trying to solve a defective amendment to the Constitution, the Court issued a defective order, further complicating a situation that was already difficult. Why did the Court make such a defective order? The answer seems to lie in both the interests of the government and the judiciary.
It’s important to note that by the time this judgment was delivered on 31 March 2020, the law which was found to be invalid had already been applied in the judiciary’s favour. For example, the Deputy Chief Justice, Justice Elizabeth Gwaunza, had been appointed by President Mnangagwa in terms of the amendment. The constitutional invalidity of the amendment means her appointment is invalid. Consequently, it brings into question the validity of the decisions she has made and functions she has exercised as the Deputy Chief Justice. Incidentally, Justice Gwaunza was one of the 9 judges in this case concerning the validity of the amendment. Ideally, she should have recused herself from a matter in which she has a clear interest.
Clearly, there was self-interest in the Court’s decision to save the invalid amendment, hence the suspension of the declaration of invalidity for 180 days. It means the appointment of Justice Gwaunza and other divisions of the High Court which were set up under the amendment can continue pending the quick-fix by Parliament. However, as argued in this article, this quick-fix is improper and illegal.
Another reason is that suspending the declaration of invalidity for 180 days was intended to give the government ample time to pass Constitutional Amendment Bill (No. 2, which was already going through the processes before the COVID-19 pandemic struck and caused a derailment. The Court may have thought it would be easy for the Senate to reconsider and vote since the ruling party still has a majority. However, as has been argued in this BSR, there is no Constitutional Bill No. 1 in this Parliament because it lapsed at the end of the last Parliament. The regime may bulldoze on the back of this flawed judgment but that will not cure the illegalities. The best thing to do is for the government to restart the process. Otherwise, Deputy Chief Justice Gwaunza will, through no fault of her own, be forever haunted by the lack of legitimacy.
I conclude this article with a note on the improper situation at Zimbabwe’s highest court, a situation that makes a mockery of the principles of supremacy of the constitution and the rule of law.
The Charade at the Constitutional Court
The 22nd May 2020 marked the seventh anniversary of the Constitution of Zimbabwe. A transitional provision gave the government seven years within which to set up a separate and autonomous Constitutional Court. In those seven years, judges of the Supreme Court also served as judges of the Constitutional Court. The judges of the Constitutional Court would be appointed under the rules in section 180 of the Constitution. This process involves public nomination and interviews of candidates.
However, the seven years are up and nothing was done to properly constitute the Constitutional Court, complete neglect of the constitutional process. The responsibility for commencing this process rests with the Chief Justice and the Judicial Services Commission. The former Chief Justice, Godfrey Chidyausiku demonstrated leadership when as Chairman of the Judicial Services Commission in 2016 he initiated the process to appoint a new Chief Justice as his retirement was imminent. He did this against the tide of political opinion of powerful men in the government, who include the current President.
As Minister of Justice at the time, Mnangagwa wanted to push a constitutional amendment that would give the president greater powers to appoint the Chief Justice. In another case of a tortoise on a lamppost, one Romeo Zibani launched legal proceedings to stop the appointments process which was already in motion. This nefarious attempt to stop the process failed. But for all his faults and weaknesses, Chief Justice Chidyausiku had emerged as the unlikely hero of constitutionalism and the rule of law. For he had resisted the clandestine attempts to suspend the constitution while politicians tried to force their way.
By comparison, his successor has been a disappointment. There is no reason why he did not initiate the process for the appointment of Constitutional Court judges under the existing Constitution. It seems Chief Justice Malaba and the Judicial Services Commission have succumbed to the political agenda of amending the Constitution to allow the President to appoint judges of the Supreme Court and the Constitutional Court from the current crop of judges. Constitutional Amendment (No. 2) which was gazetted on 31 December 2019 seeks to give the President wide discretion to make these appointments. If the COVID-19 pandemic had not struck, this would have gone according to plan, since ZANU PF enjoys two-thirds majority required to pass constitutional amendments.
However, the pandemic struck and derailed the plan. Without the amendment, President Mnangagwa could not make the appointments. This is why eyes wide open, Zimbabwe drove into a constitutional landmine with the Chief Justice at the steering wheel. The Chief Justice opted for a quick-fix - appointing 5 acting judges - almost the entire court, apart from him and his deputy (whose appointment is also legally invalid). It’s a constitutional crisis that could have been avoided. But how do the men and women who are enjoined to safeguard the Constitution plunge the nation into a constitutional crisis?
The Judicial Services Commission even organised a ceremony to mark the seventh anniversary and the separation of the Constitutional Court from the Supreme Court, with the Chief Justice presiding. The irony that they have utterly failed in their duty to comply with the Constitution is completely lost on them, the same Constitution whose supremacy and associated values they tout to the world. It’s an embarrassing moment in the history of the judiciary. They had seven years to prepare for this moment. Seven years and still they came short on the day of reckoning.
Is the Chief Justice and the Judicial Services Commission right to wait for the amendment that will give power to the President?
Legally, there is no justification for waiting. As Justice Patel stated in the case of Judicial Services Commission v Zibani and others (2017), (hereafter the Zibani case), “... a court of law cannot ignore a valid and binding provision of the Constitution in order to effectuate the mere intention of one arm of the State to tinker with that provision, particularly when the process of tinkering is in itself fraught with legal uncertainty.”
Patel rightly described the argument for waiting for the government’s amendment as “not only startling but patently outlandish in its disdain for the established norms of constitutionalism. It postulates the very antithesis of the rule of law.” This is true, but that is precisely what the Judicial Services Commission has done.
The judiciary must uphold the Constitution as it exists. That indeed is what Chief Justice Chidyausiku did in 2016, something that his successor has willfully failed to do. The Judicial Services Commission has no power to avoid compliance with the strict procedures of appointing judges of the Constitutional Court as set out under section 180 of the Constitution. This much was affirmed by the Supreme Court in the Zibani case where incidentally, the Judicial Services Commission was defending its right and duty to strictly adhere to the Constitution. In that judgment, Justice Patel wrote,
“... the Constitution demands strict compliance with its substantive provisions and all laws enacted under its aegis. It also demands meticulous adherence to the procedures and processes prescribed under the Constitution. These principles bind everyone, including the appellant which, as an executive institution, is expressly bound to comply with the substantive and procedural requirements of the Constitution.”
There can be no doubt that the Judicial Services Commission was supposed to comply with section 180. The judiciary has failed to listen to its own counsel as set out so eloquently in the Zibani case. This is important for the rule of law and the supremacy of the Constitution. As Justice Patel stated, “ … it is not open to the judiciary to pander to the whims of the executive by granting an interdict on the basis of a proposal to amend an extant law.” Yet that is precisely what the judiciary has done, for self-interest since the amendments are also designed to extend their retirement age.
Has the Judicial Services Commission breached the Constitution?
The answer is again in the judgment of the Supreme Court in the Zibani case. There, Justice Patel wrote, “Where a constitutional body has a positive duty to carry out certain functions and processes and fails to do so, its omission would constitute a violation of the Constitution attracting judicial censure.” The omission by the Judicial Services Commission to apply section 180 is clearly a violation of the Constitution. But who will censure the Judicial Services Commission chaired by the Chief Justice when the highest court that he chairs is at the centre of the problem? Who will guard the guardian of the Constitution when that guardian is the problem? It’s a farcical and tragic situation.
This farcical scenario at the highest court in the country is what causes sections of society to push for a complete overhaul of the entire system of governance in Zimbabwe. One arm of the state should at least be a sanctuary for the citizens. But as we have observed in two different scenarios here, the judiciary has pandered not only to political interests but also to self-interest. In doing so it has breached the Constitution it is supposed to protect. The order to suspend the invalidity of Constitutional Amendment Bill (No. 1) is patently illegal. The failure to initiate the process of appointing judges of the Constitutional Court per section 180 is also illegal.
But where do you go for redress when the very court that is supposed to provide protection is the author of the problems; when the very men and women with the power to defend the Constitution are conspiring to trash it? This is the nightmare that the ordinary Zimbabwean citizen must live through.
I conclude, as I have done in recent years, with the timeless words of a renowned American jurist, Justice Learned Hand. He wrote in 1944, "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it."