HARARE – The Constitutional Court (Con-Court) yesterday reserved judgment in an application filed by two MDC MPs Innocent Gonese and Fungayi Jessie Majome, who are challenging the passage of Constitution of Zimbabwe Amendment Bill No. 1 in Parliament.
Gonese is the MDC chief whip and MP for Mutare Central Constituency, while Majome is the MP for Harare West Constituency.
In the court application, the MPs are citing irregularities in the number of parliamentarians that voted “yes” for the Bill.
In the application, the Parliament of Zimbabwe, the speaker of the National Assembly Jacob Mudenda, president of the Senate Edna Madzongwe, then vice president Emmerson Mnangagwa and ex-president Robert Mugabe, are cited as respondents.
During arguments yesterday, Thabani Mpofu and Tendai Biti, who appeared on behalf of the applicants, argued that Parliament did not follow procedures set out in the Constitution when it passed the Bill.
Mpofu said evidence from the Hansard showed that the number of people that voted “yes”, did not constitute two-thirds majority, as is stipulated by the Constitution.
Two Zanu PF representatives who were listed in Votes and Proceedings as having votes for the Bill were, it is claimed, out of the country — in Uganda on parliamentary business. It is also claimed that an MDC member was incorrectly listed as voting for the Bill. Therefore, it is argued, Bill was not passed by a two-thirds majority in the National Assembly.
The MPs protested that the figures were later amended to suit the outcome.
“The correction is made to mask an irregularity,” Mpofu said, adding that the process was not transparent.
Lewis Uriri, who appeared on behalf of some of the respondents, said Parliament, in terms of the Constitution, cannot be sued.
He also said that the Hansard that the applicants are relying upon was not the final version, adding that everything was done in terms of the Constitution.
“There was total compliance,” he said.
He said business of a constitutional body can be carried out even if one or two members are not present provided there is a quorum.
He said his reading of the Constitution is that the two-thirds majority being referred to pertains to membership not the number of people present.
Chief Justice Luke Malaba, leading the full Con-Court bench of nine judges, reserved ruling in the matter.
According to Gonese and Majome, the Bill did not garner enough votes for it to pass through the Parliament for the president’s assent.
“Section 328 (5) states that a Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House,” Gonese said in an affidavit.
Parliament passed the controversial Constitution of Zimbabwe Amendment (No. 1) Bill in August last year.
The law, passed by both houses of Parliament, amends Section 180 of the Constitution and gives sole and unfettered discretion to the president to appoint the chief justice, deputy chief justice and judge president of the High Court of his choice whenever there are vacancies for such post.
However, the two parliamentarians challenge the figures, which allowed the passage of the Bill, claiming the figures were not sufficient enough to meet the required 180 yes votes.
The MPs are now demanding an order declaring that Parliament failed to fulfil the constitutional obligation defined in Section 328 (5) of the Constitution of Zimbabwe.
A University of Zimbabwe law student Romeo Zibani once approached the High Court to stop the Judicial Service Commission (JSC) interviews, arguing the process was flawed, citing an “incestuous relationship” between the candidates and the interviewing panel.
The High Court ruled in Zibani’s favour, but the JSC lodged an appeal at the Supreme Court, invalidating the High Court ruling and forging ahead with the interviews, which were beamed live on State television.
But the government was adamant, and used Zanu PF’s two thirds majority to amend the new Constitution to reinstate the president’s sole responsibility.
The National Assembly passed the Bill by a vote of 182 for and 41 against, while 53 Senators voted for the Bill, and 19 voted against.