Is the Constitution Amendment Bill Necessary?

Constitution of Zimbabwe Amendment (No. 1) Bill

The Bill is on the National Assembly Order Paper for presentation and first reading tomorrow, 6th April.

Although the Bill was published by the Speaker by notice in a Government Gazette dated 3rd January, and although it has already been the subject of public hearings by the Portfolio Committee on Justice, Legal and Parliamentary Affairs [from 17th to 24th February], its presentation and first reading had to wait until this week at the earliest.

The reason for this is that section 328 of the Constitution provides that no Bill to amend the Constitution may be presented in the Senate or the National Assembly unless the Speaker has given at least ninety days’ notice in the Government Gazette of the precise terms of the Bill.

Ninety days have passed since the Speaker’s notice.  Day 90 was Monday 3rd April.  That is why Vice-President Mnangagwa, in his capacity as Minister of Justice, Legal and Parliamentary Affairs, was able yesterday to give notice of his intention to present the Bill tomorrow.

But is the Bill is now Necessary?

President Mugabe’s recent appointment of Justice Luke Malaba as Chief Justice of Zimbabwe has destroyed whatever basis supporters of the Constitution of Zimbabwe Amendment (No. 1) Bill might previously have had for Parliament to treat this Bill as urgent.

Remember that the clear intent of the Bill was to ensure that its new procedure for filling vacancies in the post of Chief Justice would be applicable to the vacancy that no longer exists – the vacancy that was imminent when the Bill was drafted and gazetted and later became a reality when Chief Justice Chidyausiku retired at the end of February.  Clause 6(1) of the Bill proposes a new procedure for appointing three senior judges – omitting the Constitution’s existing provision for public interviews and recommendations from the Judicial Service Commission, and allowing the President to disregard advice from the Commission.

But, clause 6(2) of the Bill states:

“(2) For the avoidance of doubt it is declared that the amendment to the Constitution made by subsection (1) applies to the appointment of a Chief Justice to fill the vacancy in that office that exists on the date of commencement of this Act.”

That wording assumed that the anticipated vacancy in the post of Chief Justice would come to pass at the end of February and would still exist when the Bill eventually became law some months later – in other words, that President Mugabe would leave the post unfilled and only appoint a new Chief Justice once he could do so in terms of the new procedure.

Now that the President has appointed Chief Justice Malaba in terms of the existing procedure, the whole basis for clause 6(2) falls away.

It is true that Chief Justice Malaba’s appointment has created a vacancy in his former post of Deputy Chief Justice, which is one of the three senior judicial posts the Bill seeks to affect.  But, neither in clause 6(2) nor anywhere else in the Bill is there an attempt to apply the new procedure to a Deputy Chief Justice vacancy arising before the Bill becomes law.

Constitutional Course Already Followed by President

President Mugabe has followed the correct constitutional course in appointing Chief Justice Malaba in accordance with the existing constitutional procedure.  And it is to be hoped that he intends appoint a new Deputy Chief Justice in terms of same procedure – JSC advertisement, JSC public interviews and all.

Indeed, now that President Mugabe has set an example of constitutionalism in making one appointment, there may be cause to hope that his Government will go further and withdraw the Bill.

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