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Zimbabwe's illegal constitutional amendment

6th April 2021


Although Zimbabwe's democracy has been comatose for a long time, today marks yet another setback.


Zimbabwe's Senate voted to pass Constitutional Amendment (No. 1) Bill which gives power to the President to appoint heads of the judiciary without the need for a public interviewing procedure. It increases the power of the executive, reducing the transparency, openness, and accountability of a process that was introduced just eight years ago.


The Constitutional Bill, which was first introduced 5 years ago had stalled on account of illegalities that were found by the Constitutional Court during the first attempt to pass it. However, the latest effort fails to cleanse the Constitutional Bill of its illegalities. This piece briefly explains the continuing illegalities and why its passage marks another moment of authoritarian consolidation in Zimbabwe.


There are two principal reasons why the Constitutional Bill is illegal. The first reason is deceptively simple: there was no Constitutional Bill before the current Parliament. The second reason is that the purported passage of the "Constitutional Bill" is a nullity because it violates the Constitution. The two are closely related.


The fact that the Senate voted on a non-existent Constitutional Bill is self-evident because the old Constitutional Bill lapsed by operation of law in July 2018. In terms of section 147 of the Constitution, all bills that are pending in Parliament lapse when it dissolves. The provision states,


“On dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses”.


The Constitutional Bill was pending before the 8th Parliament whose term ended in July 2018, on the eve of the general elections. It lapsed by operation of law and was never brought back to life. How does the Senate carry out a vote on a Constitutional Bill that lapsed? As one judge of the Constitutional Court stated in a recent case, “Section 147 must be given effect to. There is no bill left to debate. Any attempt by the Senate to debate and vote a bill that has lapsed by operation of law is in violation of the Constitution itself”. Justice Anne Mary Gowora was right. Senate today violated the very Constitution that it is sworn to protect.


The proper course of action for the Government would have been to restart the constitutional amendment procedure under the current Parliament. It did not do that. Instead, it chose to cut corners under the auspices of a misguided order of the Constitutional Court, which directed an illegality. The fact that the passage of the non-existent Constitutional Bill was ordered by the Constitutional Court does not save it because the Court has no power to order the commission of an illegality. If anything, the Constitutional Court is guilty of contravening the Constitution which the judges are sworn to uphold. It is the classic definition of a constitutional crisis when those charged with upholding and defending the Constitution are involved in its violation.


The second reason is that any act that is done in contravention of the Constitution is a nullity and this is the biggest problem that the regime faces. What they have done does not cure the illegality. Another judge of the Constitutional Court had warned Parliament that it could not violate the Constitution even under the excuse of complying with a court order. Justice Bharat Patel told Parliament that any act or conduct which violates the Constitution would “remain a nullity, even if carried out purportedly in compliance with the order of this Court.”


Justice Patel advised that if Parliament and its officers wanted to go ahead with the Constitutional Bill, they “would be obligated to do so, not only in accordance with the voting requirements prescribed in s 328 of the Constitution but also in conformity with any other relevant and applicable constitutional injunction, including the legal ramifications of s 147 of the Constitution." (my emphasis) However, parliament has disregarded this unsolicited but wise counsel of the judge who was warning them not to violate the Constitution. It has disregarded the legal consequences of section 147 of the Constitution, consideration of which would have made it clear that there is actually no Constitutional Bill to vote upon because it lapsed in 2018. Consequently, Parliament passed a nullity today.


The government is aware that it is committing illegality, but it does not care. This is not surprising because the current regime is a product of illegality. The coup in November 2017 which gave birth to the current regime was the most egregious violation of the Constitution in recent history. The regime is doing it again with the Constitutional Bill. The pattern set at the outset in 2017 continues with the bulldozer approach seen in this amendment. It shuts the door on pretensions that the regime cares for the rule of law.


It is also not surprising that the mutilation of the Constitution has been accomplished with the connivance and assistance of the courts. The Constitutional Court could have stopped it, but instead, it waved play on and even directed the illegality that the government has implemented. Once it had found that the procedure was violated the first time, it should have declared the Act a nullity. Instead, the Court played dumb and declared the Bill, not the Act illegal. It was deceptive but it did little to cure the illegality.


This pattern of the courts actively enabling authoritarianism is hardly surprising. The High Court openly justified the coup in November 2017 and the Constitutional Court condoned it despite the plain constitutional violations. Constitutional violations and judicial connivance are clearly trending in this phase of intense authoritarian consolidation.


Also unsurprising is the support that the MDC-T led by Douglas Mwonzora has given to the passage of the Constitutional Bill. The irony is that one of the constitution-makers, Mwonzora is participating in this mutilation of the Constitution. ZANU PF already had the numbers to pass it illegally without the cheerleading role of the MDC-T, but the latter is too eager to appease the regime. It is another sign of authoritarian consolidation as the regime gets the support of its controlled and over-eager opposition. That they chose to work together is not the problem. It is telling that their first act of working together involves a violation of the Constitution. So much for a group of politicians who barely a year ago sought to distinguish themselves as "constitutionalists".


The important thing for Zimbabweans and those watching its political space with interest is that this is an ominous sign of an emerging brand of politics whereby the ruling party and the controlled opposition are united in their desire to share power even if it means running roughshod over the Constitution and the citizens. People can expect more constitutional readjustments designed to suit the emerging order in which ZANU PF is in total control with a controlled opposition tagging along, hoping for some crumbs.


The illegal constitutional amendment is also a reminder of what happens if there is no effective opposition in the country. Under Mwonzora’s leadership, the MDC-T has thrown itself into the arms of ZANU PF under the auspices of so-called “politics of rational disputation” which is a euphemism for resignation and regime appeasement. ZANU PF will throw some crumbs at the feet of MDC-T leaders, who have no interest in elections because any contestation is bound to expose their political bankruptcy. For its part, although it remains popular, the MDC Alliance has remained curiously immobilized in the face of these egregious acts of constitutional violations and attacks upon it. Without strong opposition, Zimbabwe’s young Constitution is under severe stress.


Two weeks ago, the BSR demonstrated why the Constitutional Bill was marred by a cocktail of illegalities. It is not surprising that the regime rushed to pass the Constitutional Bill. The indelible fact, however, is that no matter how much brawn the Government uses to force its way, the passage of the Constitutional Bill is still an exercise in futility. It is a legal nullity. The Constitutional Bill did not exist because it lapsed by operation of law in 2018. To lapse is to come to an end. It no longer existed. The Court had no power to bring it back to life. The result is that when the Senate sat and voted today, it imagined that it was passing a valid Constitutional Bill. But legally, there was no Constitutional Bill. All acts done under the Constitutional Act that will emerge from this Constitutional Bill will always be tainted by the indelible stain of illegality.


WaMagaisa


wamagaisa@yahoo.co.uk

atm@kent.ac.uk


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