Two lawyer groupings are preparing to challenge the passing of the Constitution of Zimbabwe Amendment (No. 1) Bill in parliament last Tuesday, a move which potentially derails Chief Justice Luke Malaba’s controversial plan to extend his tenure.
The extension plan is linked to President Emmerson Mnangagwa’s 2023 re-election bid.
Malaba seemed on course for a politically and constitutionally problematic extension of his tenure after high-level official interventions and the passing of the Bill, which is now awaiting Mnangagwa’s assent.
Constitutional Amendment (No.1) Bill, among other things, seeks to allow the President to appoint the Chief Justice, Deputy Chief Justice and Judge President without subjecting them to the open selection process and public interviews.
This will allow Mnangagwa to retain Malaba at the helm of the judiciary after the approval of Constitutional Amendment (No.2) Bill, which is set to be railroaded through parliament, to enable Malaba to serve when he is over 70.
The NewsHawks is however reliably informed that lawyers linked to Veritas in Harare and Abameli in Bulawayo will challenge the passing of the Bill on a number of fronts, including the supremacy of the constitution as enshrined in section 2. They will also argue that sections 147 and 328 of the constitution were violated in passing the Bill.
Malaba, by operation of law, ceases to be chief justice at midnight on 15 May when he turns 70.
The Bill was initially passed in August 2017 and published as law on 7 September 2017.
However, legislators Jessie Majome, who is now a Zimbabwe Anti-Corruption Commission commissioner, and Innocent Gonese challenged the process in the Constitutional Court, arguing the Bill should have been passed after two-thirds affirmative votes by membership of each house, in line with section 328 (5) of the constitution.
However, at its last reading in the Senate on 1 August 2017, it received 53 affirmative votes whereas the full membership of the Senate is 80. A two-thirds majority meant that at least 54 senators should have voted for the Bill.
The Constitutional Court sat on 31 January 2018 to hear the case, only to pass judgement 31 March 2020.
In a judgement written by Malaba, the court concurred that a two-thirds majority was not met in the Senate.
The Chief Justice and his colleagues, however, did not just make a simple declaration that the Bill had not been validly passed by Parliament – which would have meant that the resulting Act and anything done under it were also invalid.
Instead, it saw fit to suspend its declaration of invalidity for 180 days to allow the Senate to conduct another Third Reading which, again, is set to be challenged by lawyers.
The lawyers will argue that the Bill should have been declared null and void after failing to meet requirements of section 328 (5) of the constitution which requires a two-thirds majority for it to pass.
“They will also argue that section 147 of the constitution was violated when the Constitution of Zimbabwe Amendment (No.1) Bill was passed because it straddled two different lives of parliament, which is unconstitutional,” a lawyer said.
The Bill straddled the eighth parliament which ran from 2013 to midnight on Sunday 29 July 2018, and the currently running ninth parliament, whose tenure ends in 2023.
Section 147 of the constitution reads:
“On the dissolution of parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.”
When parliament, is dissolved all unconcluded bills are liquidated. If the executive wants to push through a Bill, it has to be first reintroduced in the new parliament.
However, with Constitution of Zimbabwe Amendment (No. 1) Bill, the executive picked up from where it had left in the life of the eighth parliament.
-Newshawks