High Court dismisses residents’ bid to stop public hearings on Constitutional amendments

….reserves judgement on Habbakuk challenge

HIGH Court Judge Justice David Mangota on Tuesday 16 June 2020
dismissed an urgent chamber application filed by Chitungwiza and
Manyame Residents Association (CAMERA) and Alice Kuvheya, a resident
of Chitungwiza, seeking an order to stop Parliament from conducting
public hearings on some proposed amendments to the Constitution.

In dismissing the urgent chamber application, Justice Mangota ruled
that some citizens, who felt disenfranchised from participating in the
process of contributing their views on the proposed constitutional
amendments as they feared putting their health and lives at risk by
attending the public hearings at a time of the outbreak of
coronavirus, have an alternative remedy of making their submissions to
Parliament in writing.

Through the urgent chamber application filed on Wednesday 10 June 2020
by Tonderai Bhatasara of Zimbabwe Lawyers for Human Rights, in which
Parliament, Speaker of Parliament Jacob Mudenda, Senate President
Mabel Chinomona and Attorney-General Advocate Prince Machaya, were
listed as respondents, CAMERA and Kuvheya had argued that conducting
public hearings at a time when the country is reporting increased
numbers of people testing positive to coronavirus, is a negation of
the efforts being done by those committed to arresting the spread of
the pandemic and is also an abrogation of the purpose and spirit of
provisions contained in section 141 and 328 of the Constitution.

CAMERA and Kuvheya argued that Parliament, Mudenda, Chinomona and
Advocate Machaya have not indicated any measures that they have put in
place in order not to breach the coronavirus regulations and citizens’
constitutional rights.

The residents association and Kuvheya said there is a real danger of
the accelerated spread of coronavirus if the public hearings are held
at a time of the outbreak of the pandemic.

CAMERA and Kuvheya wanted the proposed public hearings to be declared
to be in contravention of section 56, 67, 141 and 328 of the
Constitution as well as Statutory Instrument 83/2020 as read with
Statutory 199/2020 as further read with Statutory 110/2020.

The proposed public hearings, CAMERA and Kuvheya said, should be
postponed until such a time when the national lockdown has been lifted
and when there is no longer a health threat of coronavirus.

Meanwhile, in Bulawayo, High Court Judge Justice Nokuthula Moyo on
Monday 15 June 2020 reserved judgment on an urgent chamber application
filed by Habakkuk Trust seeking an interdict barring Parliament, Clerk
of Parliament Kennedy Chokuda and Justice, Legal and Parliamentary
Affairs Minister Hon. Ziyambi from holding public meetings in Bulawayo
or anywhere in Zimbabwe to discuss amendments to the Constitution
until the health pandemic and resultant national lockdown caused by
coronavirus currently afflicting Zimbabwe is over.

Justice Mangota reserved judgment after hearing submissions from Job
Sibanda of ZLHR, who represented Habakkuk Trust and other lawyers who
represented Parliament, Chokuda and Ziyambi.

In his application, Sibanda argued that Zimbabwe is currently facing a
health pandemic which had necessitated the imposition of a national
lockdown, where public gatherings were virtually banned to try and
curb the spread of coronavirus.

Habakkuk Trust argued that by conducting public hearings to discuss
some proposed amendments to the Constitution, Parliament, Chokuda and
Ziyambi were putting the health of the public at risk at a time of the
coronavirus pandemic.

The conduct of Parliament, Chokuda and Ziyambi, Habakkuk Trust said,
is grossly unreasonable and holding public hearings at a time of the
outbreak of coronavirus would defeat the very noble purpose of
inviting the input of the public to any proposed constitutional
amendments.

Habakkuk Trust said while the process of soliciting for input into the
proposed constitutional amendments cannot be stopped, it must await
normalisation of the situation in the country and no prejudice will be
suffered by the respondents namely Parliament, Chokuda and Ziyambi.

The process of soliciting for people’s input into the proposed
constitutional amendments, Habakkuk Trust said, should be stopped and
only proceeded with after the country shifts to Level 1 stage of the
national lockdown, which is the period which prevailed before the
outbreak of coronavirus and before a State of Disaster was declared by
government in March.

Alternatively, Habakkuk argued that if Parliament, Chokuda and Ziyambi
intend to proceed with the public hearings in the midst of the current
health pandemic, they must ensure that all precautions are taken to
prevent and contain the disease at such public gatherings.