Landmark victory for constitutionalism as Concourt nullifies President’s excessive powers on appointment of judges

THE Constitutional Court of Zimbabwe on Tuesday 31 March 2020
delivered a landmark ruling wherein it declared as unconstitutional
the legality of the Constitution of Zimbabwe Amendment (No.1) Act.

The Act sought to amend Section 180 of the Constitution by giving the
President sole powers to appoint the Chief Justice, his deputy and the
Judge President of the High Court. It also sought to add a provision
relating to the appointment of the Senior Judges of the Labour Court
and the Administrative Court by the Chief Justice.

In an application which was filed in September 2017 by MDC party
legislator and former Chief Whip Hon. Innocent Gonese and former MDC
party Harare West legislator Hon. Jessie Majome, the two legislators
protested that the Senate failed to fulfil the constitutional
obligation defined in section 328(5) of the Constitution, which
requires a Constitutional Bill to be passed by two-thirds of its
membership when it passed Constitutional Amendment Bill (No.1) of 2017
into law on 1 August 2017.

The purported passing of Constitutional Amendment Act (No.1) of 2017
had the main effect of changing the procedure for the appointment of
the Chief Justice, the Deputy Chief Justice and the Judge President of
the High Court such that the appointment of these judicial officers
would be made solely by the President after consultation with Judicial
Service Commission.

In their application filed by Advocate Thabani Mpofu instructed by
Hon. Tendai Biti of Zimbabwe Lawyers for Human Rights, Hon. Gonese and
Hon. Majome argued that Parliament did not follow the correct
procedures in passing Constitutional Amendment Bill (No.1) of 2017
into law.

The two legislators, seeking a declaratory order, argued that
Parliament failed to comply with the constitutional obligation defined
in Section 328(5) of the Constitution of Zimbabwe, which requires a
Constitutional Bill to be passed by two-thirds of the membership of
both Senate and National Assembly, sitting separately.

They also argued that no vote was conducted as required by the
Constitution of Zimbabwe.
In line with this, the Full Bench of the Constitutional Court on
Tuesday 31 March 2020 ruled in favour of Hon. Gonese and Hon. Majome’s
application and declared that the passing of Constitutional Amendment
Bill (No. 1) of 2017 by the Senate on 01 August 2017 was inconsistent
with the provisions of section 328(5) of the Constitution, to the
extent that the affirmative votes did not reach the minimum threshold
of two-thirds of the membership of the Senate.

The Constitutional Court declared Constitutional Amendment Bill (No.
1) of 2017 as invalid to the extent of the inconsistency and stated
that the declaration of invalidity shall have effect from the date of
the granting of the apex court’s order but is suspended for a period
of 180 days.

Senate, the Constitutional Court ruled, should conduct a vote in
accordance with the procedure for amending the Constitution prescribed
by section 328(5) of the Constitution within180 days of the granting
of the Constitutional Court’s order, failing which the declaration of
invalidity of Constitutional Amendment Bill (No. 1) of 2017 shall
become final.