Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors

### Preamble
Judgment No. CCZ 06/22
1
Court Application No. CCZ 10/21
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REPORTABLE: 	(6)

ZIMBABWE     HUMAN     RIGHTS     ASSOCIATION

v

[1]     PARLIAMENT     OF     ZIMBABWE     [2]     PRESIDENT     OF     THE     REPUBLIC     OF     ZIMBABWE     [3]     MINISTER      OF      JUSTICE     LEGAL     AND      PARLIAMENTARY     AFFAIRS     [4]     ATTORNEY-GENERAL

CONSTITUTIONAL COURT OF ZIMBABWE

GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC & UCHENA AJCC

HARARE: 2 MARCH & 13 JULY 2022

T. Bhatasara, for the applicant

T. Zhuwarara, for the first respondent

T. Magwaliba and D. Madzoka, for the second, third and fourth respondents

D. Sanhanga, as amicus curiae

PATEL JCC:	This matter purports to be an application in terms s 167(2)(d) as read with s 85 of the Constitution and as further read with r 27 of the Constitutional Court Rules, 2016. In essence, the application involves a challenge to the validity of the Constitution of Zimbabwe Amendment (No. 2) Act of 2021 (“the Amendment No. 2 Act”).

Background and relief sought

The applicant, styled the Zimbabwe Human Rights Association, is a common law universitas. It asserts that it has an interest in human rights and the rule of law. It is represented herein by its National Director, Dzikamai Bere.

The applicant has cited the Parliament of Zimbabwe as the first respondent and the President of the Republic of Zimbabwe as the second respondent. It has also cited the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General as the third and fourth respondents respectively.

The applicant alleges that the first respondent failed to follow the procedures stipulated by s 328(3) and (4) of the Constitution in enacting the Amendment No. 2 Act, that it failed to comply with s 141(a), (b) and (c) of the Constitution in the manner in which it conducted public hearings and that it thereby failed to protect and uphold the Constitution in terms of s 119(1) and (2) of the Constitution. The applicant further avers that the first respondent’s failure to ensure proper public participation in the legislative process breached the political rights of the general public under s 67(2)(d) as well as the rights of the public to freedom of expression under s 61 of the Constitution. An additional basis advanced for the application is that the first respondent made major changes to the Amendment No. 2 Bill after public consultations had already been completed and, consequently, some aspects of the Bill were never placed before the public for comments. Lastly, the applicant alleges that the second respondent also failed to fulfil his constitutional obligations in that he contravened ss 61, 67 and 90 of the Constitution by assenting to the impugned Bill.

All four respondents are opposed to the application. The first respondent avers that it gave the requisite 90 days’ notice of the Amendment No. 2 Bill on 17 January 2020 and immediately thereafter, by way of a notice dated 23 January 2020, invited members of the public to express their views on the proposed Bill through written submissions and public gatherings. The first respondent states that the national lockdown and regulations applicable at the time necessitated certain changes in the dates scheduled for public hearings. It further asserts that physical public gatherings were conducted from 14 to 19 June 2020 and that the public provided input on the proposed Bill, which input was then incorporated in the report of the Portfolio Committee on Justice, Legal and Parliamentary Affairs. The first respondent accepts that changes were made to the proposed Bill during the Committee Stage. However, it argues that these amendments at the Committee Stage were not new, were consistent with parliamentary practice and were not unprecedented. On these grounds, the first respondent prays for the dismissal of the application with costs.

The second, third and fourth respondents have opposed the application jointly, through an affidavit deposed to by Prince Machaya, the fourth respondent herein. They assert that there was no breach of the rights enshrined in s 61 of the Constitution and that the Amendment No. 2 Act was validly passed. In this regard, they argue that the provisions of s 328 were observed to the extent that they were applicable in the circumstances. They aver that the precise terms of the Bill were published in accordance with s 328(3), with the requisite 90 days’ notice, and they deny that there was any failure to convene public gatherings. They refute the suggestion by the applicant that the public hearings required by the Constitution had to be conducted over the entire 90 day period. They highlight the effect of the Covid-19 pandemic on the feasibility of physical public gatherings. In this respect, they argue that the provisions of s 141(a), (b) and (c) were complied with. They aver that the report of the Portfolio Committee (referred to earlier) was proper and that there is no requirement for it to have contained statistical information. They strenuously argue that it was competent for the first respondent to debate the Bill pursuant to the Committee’s report and to pass it thereafter with appropriate amendments. It is further denied that the provisions of s 119(1) and (2), which enjoin protection of the Constitution and promotion of democratic governance, were breached by the first respondent. Finally, it is denied that the second respondent failed to fulfil a constitutional obligation by assenting to the Bill in question. They accordingly pray that the application be dismissed with costs.

The relief sought by the applicant is twofold. The first is a declaration that the first and second respondents have failed to fulfil their constitutional obligations, within the contemplation of s 167(2)(d) as read with s 2 of the Constitution, in respect of the presentation and passage of the Amendment No. 2 Act and the second respondent’s assent thereto. The second is an order that the Act in its entirety is invalid and that it should therefore be set aside. The applicant also prays that the respondents pay the costs of suit jointly and severally.

I note in passing that the draft order erroneously refers to the “Constitutional Amendment (No. 2) Act of 2021”, instead of the “Constitution of Zimbabwe Amendment (No. 2) Act, 2021”. The draft relief sought is thus imprecise to the extent that it incorrectly cites the impugned Act in question. Consequently, inasmuch as the relief sought is imprecise and defective, it is susceptible to being denied, even if the application were to succeed. See in this regard Ahmed v Docking Station Safaris (Pvt) Ltd t/a CC Sales S-70-18, at p 5.

Preliminary issues

The second, third and fourth respondents have raised two preliminary issues, pertaining to the deposition of the founding affidavit and the joinder of the third and fourth respondents. They argue that the deponent to the applicant’s founding affidavit has no authority to depose to it. They further argue that the third and fourth respondents were improperly joined to these proceedings insofar as they are founded on s 167(2)(d) of the Constitution.

As regards the first point, r 16(3)(a) of the Rules provides that a court application must be supported by an affidavit deposed to by a person who can swear positively to the facts. The deponent to the applicant’s founding affidavit states that he is the National Director of the applicant. He further affirms that he was authorised by the applicant to depose to the affidavit through a decision of its Management Committee taken at a meeting held on 27 October 2020.

In terms of the applicant’s constitution, its National Director is mandated to perform such other duties as the Management Committee and National Council may assign to him. In casu, the applicant’s argument that its Management Committee can competently authorise a person to represent it in litigation is undoubtedly correct. And, in the absence of any evidence to the contrary, it must be accepted that the deponent to the applicant’s founding and answering affidavits was authorised to represent the applicant in these proceedings by the resolution of its Management Committee. Accordingly, the respondent’s preliminary objection in this regard is without merit and it is hereby dismissed.

Turning to the second point, the provisions of s 167(2)(d) of the Constitution are expressly confined to the failure to fulfil any constitutional obligation on the part of the President or Parliament or both. In this context, the decision of this Court in Mliswa v Parliament of the Republic of Zimbabwe CCZ-2-21 underscores the point that the Court is endowed with a special jurisdiction designed to hold accountable the other two organs of the State. That being the case, it is impermissible to join any other party as a respondent to an application brought under s 167(2)(d). It follows that the respondents are absolutely correct in objecting to the joinder of the third and fourth respondents, i.e. the Minister of Justice and the Attorney-General, to the proceedings herein.

Notwithstanding the foregoing position, I am of the considered view that the misjoinder in question does not warrant the dismissal of the matter. This is so because r 51(1) specifically provides that no cause or matter is to be dismissed or removed from the roll merely by reason of the misjoinder of any party. By virtue of r 51(2)(a), this Court is authorised to order any person who has been improperly or unnecessarily joined to cease to be a party. It seems to me that this is the correct procedural path to follow in casu.

In so doing, I am alive to the fact that the fourth respondent, the Attorney-General, has deposed to an opposing affidavit on his own behalf and on behalf of the second and third respondents who have authorised him to depose to the affidavit on their behalf. Given that the fourth respondent has been duly authorised to represent the second respondent, the propriety of whose citation in this matter is clearly unquestionable, the removal of the fourth respondent as a party would not automatically entail the joint opposing affidavit of the three respondents having to be struck off the record. That affidavit would continue to stand as the opposing affidavit of the second respondent.

In the event, the preliminary objection as to the misjoinder of the third and fourth respondents has merit. It is accordingly ordered that the third and fourth respondents, having been improperly joined hereto, shall cease to be parties to these proceedings. It is further ordered that the opposing affidavit filed on behalf of the second, third and fourth respondents shall stand as the opposing affidavit of the second respondent solely.

Cause of action and legal standing

The applicant’s locus standi and causa actionis are pleaded in paras 6 to 9 of its founding affidavit. In para 6 the applicant avers that it “has locus standi in these proceedings as required by s 85(1) of the Constitution”. It then elaborates the particular factual bases of its legal standing. Amongst other things, it is a non-profit human rights association with the core objective “to foster a culture of human rights in Zimbabwe …. through observance of the rule of law”. It has a further duty “to promote and protect human rights, the rule of law and separation of powers in Zimbabwe”. It therefore “has a direct and substantial interest to see that laws are passed and or amended in compliance with the Constitution including amendments to the Constitution itself”. The applicant then concludes that “It thus has legal standing”.

The applicant’s cause of action is expounded in paragraph 7 under the heading Nature of the application and its causa as follows: “The applicant is making this application in terms of s 167(2)(d) as read with s 85 of the Constitution of Zimbabwe as further read with r 27 of the Constitutional Court Rules”. In para 8 the applicant states that it seeks “an order declaring Constitution of Zimbabwe Amendment (No. 2) Act, 2021 passed by the first respondent on 20 April 2021 and assented to by the second respondent invalid”. The legal bases for the order craved are then spelt out in the remainder of para 8. Finally, in para 9, the applicant asserts that “The conduct of the first respondent and second respondent constitutes a failure on their part to fulfil a constitutional obligation”. With specific reference to the second respondent, it is averred in para 24.3 that “by assenting to the Bill, [he] failed to fulfil a constitutional obligation and contravened s 90 of the Constitution together with ss 61 and 67”.

In opening his argument for the applicant, Mr Bhatasara reiterates that the application, as pleaded in the founding affidavit, is made under s 167(2)(d) as read with s 85 of the Constitution as further read with r 27 of the Rules. In response to the Court’s request to explain this position, he submits that the respondents violated certain fundamental rights as a consequence of having breached s 328 of the Constitution. However, he argues that the principal basis for invoking the Court’s jurisdiction is s 167(2)(d). As regards the second respondent, he submits that the cause of action against him has been made out in paras 9 and 24.3 of the founding affidavit, to wit, that he assented to the Bill in contravention of the Constitution.

Mr Zhuwarara, for the first respondent, submits that the applicant’s conflation of causes under s 167(2)(d) and s 85(1) of the Constitution is unacceptable. Section 85(1) relates to the infringement of fundamental rights, while s 167(2)(d) relates to the failure to fulfil obligations by the President or by Parliament. Mr Zhuwarara further argues that the application, according to paragraph 6 of the founding affidavit, is rooted in a s 85 cause. The applicant derives its locus standi from that footing, but no relief is sought that is based on the violation of any fundamental right. The respondents must be allowed to know which case to oppose and this has not been done. For these reasons, so it is submitted, the application is fatally defective.

Mr Magwaliba, for the second respondent, points to the fact that the application under s 167(2)(d) is based solely on the President’s assent to the Bill. The latter does not have any practical legal expertise and he is not required to supervise Parliament or to assess its conduct. Section 110(2)(a) and (b) only relates to the process of assenting to a Bill. The Bill is submitted to the President together with a certificate and he cannot go behind the certificate. Under s 131, he considers the content of the Bill and not the procedure that led to its passage. Thus, so Mr Magwaliba argues, the mere assent to the Bill by the President does not identify any cause of action against him. Furthermore, the applicant has erroneously conflated s 167(2)(d) with s 85. Section 167(2)(d) is exclusive to the jurisdiction of this Court, while s 85 relates to any court and also requires the leave of court. Consequently, Mr Magwaliba submits that the cause of action in casu has not been properly pleaded.

Ms Sanhanga, the amicus curiae, notes that counsel for the applicant appears to have abandoned the route under s 85(1)(d). As for locus standi under s 167(2)(d), she argues that this must be established under the common law which requires a strict approach to legal standing. She submits that the applicant has failed to demonstrate its locus standi in the present matter.

Having regard to the relevant passages in the founding affidavit that I have referred to earlier, it is abundantly clear that the applicant has predicated its locus standi on s 85(1) of the Constitution. On the other hand, its cause of action is specifically founded on the alleged failure of the first and second respondents to fulfil their constitutional obligations. Thus, the applicant’s claim to activate the jurisdiction of this Court is exclusively anchored in s 167(2)(d) of the Constitution. This is then mirrored in the declaratory and substantive relief that it seeks both of which are confined to the juridical ambit of s 167(2)(d). The order prayed for makes no mention whatsoever of any infringement of a fundamental right giving rise to locus standi under s 85(1) and the jurisdictional competence of this Court under that provision.

In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. s 85(1) and s 167(2)(d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC 15-21, at p. 17, para. 38, where Gwaunza DCJ observes that:

“…. an application under s 85 of the Constitution should not be raised as an alternative cause of action …. . Section 85(1) is a fundamental provision of 	the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.”

By proceeding as it has done, the applicant has effectively disabled itself from properly pleading its legal standing and cause of action. It has also failed to comply with the rules governing the procedure to be followed. Applications under s 85(1) are governed by r 22, while those pertaining to s 167(2)(d) are regulated by r 27. The two rules have different provisions stipulating the timelines within which to file pleadings. They also differ as regards the persons that ought to be cited and served with the relevant applications. For instance, r 22(3) specifically requires an application in terms of Chapter 4 to be served on the Attorney-General, apart from all other interested persons. Again, the periods afforded to respond to applications in terms of the two rules are materially different. In short, by conflating two juridically distinct provisions of the Constitution, the applicant has failed to proceed in conformity with the Rules as well as the jurisdictional attributes and requirements of those two provisions.

For the sake of completeness, it is necessary to point out that the application, to the extent that it is premised on s 85(1) of the Constitution, has been made without leave in terms of r 21 of the Rules. The need to comply with the Rules generally, and with r 21 in particular, was forcefully reaffirmed by Makarau JCC in the recent case of Museredza & Ors v Minister of Agriculture, Lands, Water and Rural Resettlement & Ors CCZ 11-21, at pp. 9, 11, 13-14 and 15. The Court noted the critical distinction between the jurisdiction of a court, which is a matter of substantive law, and access to that jurisdiction, which is a question of adjectival or procedural law. It was further observed that applications for leave to obtain direct access under r 21 serve the dual purpose of confirming that it is in the interests of justice to determine the matter at hand and as a gate-keeping function to sieve matters that this Court must determine in the interests of justice. The learned judge accordingly held, at p. 15, that:

“The practice of this Court therefore is that, where a litigant wishes to bring 	a new and fresh cause and the matter is not listed in r 21 as one for which 	leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court.” (My emphasis)

I should also highlight the further imperative of the rules of practice and procedure to the effect that the pleadings relied upon by every litigant must be framed with crystal clarity so as to enable the court and the other parties involved to comprehend and respond to that litigant’s cause of action and assertions. This aspect was crisply underscored by Garwe JA (as he then was) in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449 (S), at 455G:

“In general the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.”

After citing various authorities, both in this jurisdiction and elsewhere, the learned judge concludes, at 457G:

“The position is therefore settled that pleadings serve the important 	purpose of clarifying or isolating the triable issues that separate the two 	litigants. It is on those issues that a defendant prepares for trial and that a court is 	called upon to make a determination. Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.” (My emphasis)

The same cautionary sentiments were expressed more recently, in the specific context of s 167(2)(d) of the Constitution, by Makarau JCC in Mliswa v Parliament of the Republic of Zimbabwe CCZ 2-21, at p. 8:

“Quite apart from the comity considerations, the ambit of the Court’s 	jurisdiction under s 167(2)(d) is procedurally limited by the requirements of the 	cause of action that is created by the section. …. . To plead one’s case with precision 	is a rule of procedure that I believe also applies with equal force to all applications 	brought under s 167(2)(d).” (My emphasis)

Disposition

In the present matter, it is abundantly clear that the applicant has failed to exercise due care and diligence and to give proper consideration to the governing procedural law in the presentation of its case. It has muddled its case by straddling two different juridical horses and has thereby plunged its legal standing and cause of action into a quagmire of confusion. In short, its conflation of two mutually exclusive constitutional provisions constitutes a fatal irregularity that cannot and should not be condoned by the Court. Furthermore, it has compounded its precarious position by failing to pay due regard to the mandatory procedural requirements of the Rules of this Court.

As for costs, I do not perceive any meaningful basis for departing from the general practice of not awarding costs in constitutional matters. In my view, poverty of pleading per se is no warrant for further impoverishment by way of a punitive award of costs.

In the result, it is ordered that the application, being fatally defective, be and is hereby struck off the roll with no order as to costs.

GWAUNZA DCJ:		I agree

GARWE JCC:		I agree

MAKARAU JCC:		I agree

GOWORA JCC:		I agree

HLATSHWAYO JCC:	I agree

UCHENA AJCC:		I agree

Bhatasara Attorneys, applicant’s legal practitioners

Chihambakwe, Mutizwa & Partners, 1st respondent’s legal practitioners

Civil Division of the Attorney-General’s Office, 2nd, 3rd and 4th respondents’ legal practitioners