Minister Chombo is wrong to Stall Parliamentary Debate through a Court Challenge
Today, I digress slightly from commenting on the draft Constitution, to address a constitutional issue that has arisen in Zimbabwe. It is an important matter, which also highlights why it is imperative to have constitutional reforms.
The media reports that debate in Parliament on the proposed Urban Councils Amendment Bill has stalled because of a constitutional challenge brought before the Supreme Court of Zimbabwe by the Minister for Local Government, Ignatius Chombo.
Mr Chombo has taken exception to the Bill on the grounds that only the Cabinet and no other person can initiate legislation during the subsistence of the Global Political Agreement. The Bill in question was initiated by Buhera MP, Mr Tangwara Matimba, therefore placing it into the category of a Private Member’s Bill. A Private Member’s Bill is a Bill that is introduced in Parliament by a Member of Parliament who is not a member of the Cabinet. In other words, it is not a Government Bill.
There is, of course a political dimension to this whole debate. Mr Chombo represents ZANU PF whilst Mr Matimba is an MDC-T MP. Mr Chombo’s deputy in the Ministry, Hon. Sessel Zvidzai represents the MDC-T. Political analysts may wish to assess the politics surrounding this battle but this paper will focus specifically on the legal aspects.
Mr Chombo argues that the GPA suspends the facility of Private Member’s Bill. For this he cites Article 20.1.2 (c.) of the GPA, which is part of Schedule 8 of the Constitution, which states as follows:
“The Cabinet shall have the responsibility to prepare and present to Parliament, all such legislation and other instruments as may be necessary to implement the policies and programmes of the National Executiveâ€
Mr Chombo argues that this provision means the facility of the Private Members’ Bill encapsulated in Schedule 4 of the Constitution is suspended. With respect, this argument is incorrect and severely flawed.
The relevant provisions of Schedule 4 of the Constitution state that any Bill may originate from the House of Assembly. Also, any Bill other than a Money Bill can originate from Senate. Any member of either House of Parliament is entitled to introduce any Bill into or move any motion for debate in Parliament. This is consistent with Section 32 of the Constitution which states that: “The legislative authority of Zimbabwe shall vest in the Legislature which shall consist of the President and Parliamentâ€.
It is also consistent with the principle of separation of powers under which Parliament has the power to legislate. Since Parliament consists of MPs, clearly it is reasonable that the power to legislate vests in the MPs, acting individually or collectively. There is no requirement that one must be in Cabinet in order to introduce legislation.
If Parliament, through the GPA, had intended to remove this power from itself, acting through its constituent members, it would have done so in express language. It would have stated in clear terms that only Cabinet or members of Cabinet shall have the exclusive power to introduce all legislation or amendments to legislation in Parliament. Â The GPA does not say so.
Clause 20.1.2 (c.) of the GPA does not specifically give exclusive power to Cabinet to introduce all types of legislation in Parliament. It is not a general power on all types of legislation. It does not even specifically curtail the power of Parliament and its individual members to introduce legislation under Schedule 4 of the Constitution. Let us examine what it says:
- All it says is that Cabinet shall have the “power to prepare and present all such legislation and other instruments as may be necessary to implement the policies and programmes of the National Executiveâ€. This cannot be stretched to refer to all legislation. If the intention was to cover all legislation and say only Cabinet can introduce legislation in Parliament it would simply have said that “Cabinet has the power to prepare and present all legislation.â€
- Â However, what we can observe from the wording is that the provision is very clear that it relates to that type of legislation that is designed to implement policies and programmes of the government. Â It means therefore, any other legislation, which is not necessarily designed to implement policies and programmes of the government is not covered and cannot be said to be the exclusive domain of Cabinet.
This Bill is designed to bring more accountability on the part of the Minister for Local Government. Parliament is merely trying to exercise its authority to make the Minister and government more accountable in the running of local government structures. Parliament is exercising its authority not only to legislate but also to bring the executive to account. Parliament is properly exercising its constitutional role provided for clearly under Section 50 of the Constitution which states that, “… Parliament may make laws for the peace, order and good government of Zimbabweâ€.  If the GPA intended that Parliament would not be exercising these roles, it would have stated so in clear terms and most probably it would not have provided for the institution of Parliament at all. Power conferred by a Constitution to an arm of the state cannot be excised by vague terms.
The other reason why it is improper for the Minister to bring a court challenge to stop debate in Parliament is that it is essentially a call for interference by one arm of the state into the process of another arm of the state. While there is nothing wrong with a member of the Executive challenging the legality of an instrument passed by Parliament, to stop the whole process of creating that law is over-extending the boundaries of legitimate challenge in a democracy. Â It instigates a clash between Parliament and the Judiciary over their respective mandates.
In terms of the principle of separation of powers, Parliament makes laws while the Judiciary interprets those laws. The Judiciary does not have the power to make laws or even to participate in the law-making process by Parliament. However, by bringing a court challenge to stop Parliamentary debate on legislation, the Minister is essentially bringing the court into the domain of law-making. If the court stops the debate, it is basically telling Parliament what to do in its law-making process, which it is not entitled to do. The court has every right to consider a judicial challenge to a law duly passed by Parliament but it cannot directly or indirectly pass judgment on a Bill, whether substantively or otherwise, before it becomes legislation. That would be pre-judging the law, thereby compromising its role should the law be passed eventually.
For these reasons, a self-respecting, independent and impartial judiciary would exercise caution and refrain from entertaining the challenge of this type.
Further and in any event, it is not reasonable to get the courts embroiled in law making at this stage when the Constitution itself already provides safeguards to prevent unconstitutional Bills being passed into law. The Constitution provides for a Parliamentary Legal Committee (PLC), whose role is to scrutinise Bills before they are passed by Parliament. Section 40B, on the functions of the PLC states as follows:
“The Parliamentary Legal Committee shall examine … [every Bill, etc] and shall report to the House of Assembly, Senate, Minister or authority, as the case may be, whether in its opinion any provision of the Bill, draft Bill, statutory instrument or draft statutory instrument would, if enacted, be or, as the case may be, is in contravention of the Declaration of Rights or any other provision of the Constitution.â€
Therefore, the PLC has the responsibility to carefully review a Bill, checking to ensure that it is constitutional. If a Bill violates the Constitution, particularly the Declaration of Rights, it will make an adverse report and bring it to the attention of Parliament for reconsideration of the Bill.
Plainly, Minister Chombo should have deferred to Parliament and the PLC’s report rather than embroil the courts in the law-making process.
Finally, under the present Constitution, there is a final facility on the passage of Bills into law which is that the President must assent to the Bill before it becomes law. Section 51 on the mode of exercising legislative powers, states that the President may assent to or withhold his assent to the Bill. There is a serious anomaly on this issue, which the draft constitution clears but I will deal with that some other time. Suffice to say for now that should Minister Chombo not be satisfied with the Bill and should he persuade the President to believe his concerns, which is not unlikely as they are members of the same political party, the President can always refuse to assent to the Bill. What this means is that there is absolutely no need for Minister Chombo to involve the courts of law in the legislative making process which has clear provisions to regulate itself. In these circumstances, involving the courts of law is tantamount to an abuse of legal process.
To my mind, involving the courts in this matter is highly improper. As has been stated in other critiques on this matter, if the court were to stop debate in Parliament, it would have the effect of creating a dangerous precedent. It would mean that anyone can bring a judicial challenge in matters before Parliament and even if the challenge is based on nonsensical grounds, Parliamentary process would be stalled. Overall, the power of Parliament will be severely curtailed, a circumstance that is highly untenable and represents a serious assault on democracy.
waMagaisa
