Supreme Court Case to Stop Private Member's Bill: Part I

BILL WATCH 20/2012 [15th May 2012]

This case, brought by the Minister of Local Government, Rural and Urban Development to stop Parliament debating the Urban Councils Amendment Bill, raises complex issues and will be covered in two Bill Watches:

Part I The Case:– Background; Minister’s Arguments; Grounds for Rejecting the Minister’s Arguments

Part II Other Aspects of the Case – undesirability of bringing a case to court while a Bill is being considered by Parliament; and the possible effect on other legislation including other Private Member’s Bills.

Part I

Background to the Challenge

On 25th October last year the House of Assembly passed a resolution giving Hon Tangwara Matimba [MDC-T MP for Buhera Central] permission to introduce a Private Member’s Bill to amend the Urban Councils Act. The Bill [available from [email protected]] was subsequently gazetted and introduced in the House by Hon Matimba on 28th February. Its main purpose, as outlined in its explanatory memorandum, is to reduce the powers of central government over municipal and town councils, thereby encouraging democracy at local levels. Following its introduction the Bill received a non-adverse report from the Parliamentary Legal Committee. This indicated that in the Committee’s opinion the Bill did not contravene any provision of the Constitution.

The ZANU-PF caucus, however, held a different view. Following a caucus meeting, Hon Chombo, the ZANU-PF Minister of Local Government, Rural and Urban Development wrote to the Speaker and the Clerk of Parliament stating that Article 20.1.2(c) of the GPA, which is enshrined in Schedule 8 to the Constitution, allows only Government Ministers to introduce Bills in Parliament, and takes away the right of private members to do so. While the GPA subsists, he contended, Hon Matimba had no power to introduce the Urban Councils Amendment Bill into the House of Assembly and the House had no power to consider it. The Clerk of Parliament replied in a letter that explained, with full reasons, that Parliament disagreed with the Minister’s contention. Parliament has since proceeded with the Bill, Hon Matimba has made his speech explaining it, and it is on the Order Paper for continuation of the Second Reading debate when Parliament resumes this week.

Note: Minister Chombo, who has been Minister responsible for local government since 2000, has clashed repeatedly with local councils over his exercise of the powers conferred on him by the Urban Councils Act. It is powers of this sort that will be drastically curtailed by the Bill.

Minister Chombo has now applied to the Supreme Court in terms of section 24(1) of the Constitution for an interdict prohibiting Parliament from considering the Bill any further. He has brought the application in a threefold capacity: as a Minister, as a member of Parliament and as a citizen. Notice of opposition has been filed on behalf of Parliament.

In two earlier Bill Watches [10/2012 of 19th March and 15/2012 of 2nd April] we referred to the argument as it had been put forward after the ZANU-PF caucus meeting. We said it was incorrect, i.e, that Article 20.1.2(c) of Schedule 8 to the Constitution does not override the constitutional right of a private member to introduce a Bill.

Now that Minister Chombo has taken the matter to court, we shall consider the Minister’s argument in more detail.

Ministers Argument that the GPA excludes Private Members Bills

The Minister’s argument is based on an idiosyncratic interpretation of the impact of the constitutional provisions enacted by Constitution Amendment No. 19 to give effect to the GPA. It is as follows:

Although there is a provision in the Constitution allowing Private Member’s Bills [paragraph 1(3)(b) of Schedule 4], this has been superseded by Article 20.1.2(c) of the GPA [incorporated into the Constitution as Schedule 8 by Constitution Amendment No. 19] which states that 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 Executive”.

He argues that this latter provision overrides paragraph 1 of Schedule 4. He bases this on another provision of the Constitution [Section 115(3] also introduced by Constitution Amendment No. 19, which states that while the GPA is in force the provisions of the Constitution “operate as amended or modified to the extent or in the manner specified in Schedule 8”. Therefore, he argues, while the as the GPA is still in force, the right of private members to prepare legislation and present it to Parliament is in abeyance.

Grounds for Rejecting the Minister’s Argument

There are strong grounds for rejecting the Minister’s argument that Article 20.1.2(c) as incorporated in Schedule 8 of the Constitution overrides private members’ right to introduce Bills:

1. Article 20.1.2(c) does not give Cabinet an exclusive right to introduce Bills Article 20.1.2(c) states that the Cabinet shall have the responsibility to prepare and present legislation to Parliament that the Executive deems necessary to fulfil its policies. Cabinet has always had this right, but it has not meant that private members cannot introduce Bills that are not on the Executive’s legislative agenda. And there is nothing in the Article which excludes this now.

2. Article 20 of the GPA must be read as a whole The preamble states that its purpose is ‘to establish a framework of working together in an inclusive government”. The other clauses in 20.1.2 emphasise that Cabinet in all its duties, not just that of preparing legislation, shall “take decisions by consensus” and “take collective responsibility”. The GPA negotiators obviously considered it is necessary to emphasise the collective duty of Cabinet in an inclusive government having Ministers coming from oppositional parties, a situation very different from that of a Cabinet selected by the party that has won an election.

This clarifies that the words in Article 20.1.2(c) which states that the Cabinet “shall have the responsibility to prepare and presenting to Parliament “all such legislation”… “as may be necessary to implement the policies and programmes of the National Executive.” merely emphasises the duty of the Cabinet as a whole to put in place whatever legislation is needed to implement the GPA.

3. Article 20 in Schedule 8 must be read in conjunction with the rest of the Constitution There is a basic rule for interpreting a constitution – that that all its provisions must be read together and one provision should not be regarded as overriding another unless the intention to override is expressly stated or clearly implied. In this case paragraph 1(3)(b) of Schedule 4 to the Constitution gives private members of Parliament the right to introduce any Bills, other than money Bills, while Article 20.1.2(c) gives Cabinet the “responsibility” for introducing legislation to implement government policies. The two provisions are perfectly consistent with one another, unless article 20.1.2(c) is construed as meaning that Cabinet has the sole right to introduce legislation — which is not what it says. There is therefore no ground for saying that Article 20.1.2(c) overrides paragraph 1(3)(b) of Schedule 4.

4. Section 115(3) does not say that Schedule 8 overrides the rest of the Constitution It merely says that the rest of the Constitution operates “as amended or modified to the extent or in the manner specified in Schedule 8.” Therefore, only if Schedule 8 specifies an amendment or modification to another constitutional provision will that other provision be overridden by the Schedule. Article 20.1.2(c) does not specify any amendment or modification to paragraph 1(3) of Schedule 4, so it cannot be regarded as overriding it. Hence the right of private members to introduce legislation remains unaffected by Schedule 8.

5. The Urban Councils Amendment Bill is not the sort of legislation that is covered by article 20.1.2(c) Not only does article 20.1.2(c) not give Cabinet Ministers an exclusive right to introduce legislation in Parliament, but it applies only to “such legislation … as may be necessary to implement the policies and programmes of the National Executive.” The Urban Councils Amendment Bill [and incidentally other Private Members Bills that are in the pipeline] do not fall into this category as they cannot be said to “implement the policies … of the National Executive”.

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