Moven Kufa and The Voice for Democracy Trust v The President of the Republic of Zimbabwe N.O and The Prime Minister of the Republic of Zimbabwe N.O and Savious Kasukuwere and Joseph Made and Walter Mzembi and Flora Bhuka and Sylvester Ngoni and Henry Madzorera and Giles Mutsekwa and Sekai Holland

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MOVEN KUFA
and
THE VOICE FOR DEMOCRACY TRUST
versus
THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O
and
THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE N.O
and
SAVIOR KASUKUWERE
and
JOSEPH MADE
and
WALTER MZEMBI
and
FLORA BHUKA
and
SLYVESTER NGUNI
and
HENRY MADZORERA
and
GILES MUTSEKWA
and
SEKAI HOLLAND


HIGH COURT OF ZIMBABWE
CHIWESHE JP
HARARE, 22 March 2011, 5 and 6 April 2011


Mr D. Ochieng, for the applicants
Advocate Uriri, for the respondents


       CHIWESHE JP: In this opposed application the applicants seek an order in the
following terms:
“IT IS ORDERED THAT:
   1. The purported appointments and entry into office as Ministers of:
      SAVIOUR KASUKUWERE
      JOSEPH MADE
      WALTER MUZEMBI
      FLORA BHUKA
      SYLVESTER NGUNI
      HENRY MADZORERA
      GILES MUTSEKWA
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       and
       SEKAI HOLLAND
       are hereby declared to be null and void.

ALTERNATIVELY

   1. 1st respondent and 2nd respondent be and are hereby directed, within seven days of
      the date of service of this order upon them, to prevent more than 15 ZANU PF
      nominees, 13 MDC-T nominees and 3 MDC M nominees from purporting to act
      and carry out the functions of Ministers so that the Ministerial complement of
      Government does not exceed 31 persons.
   2. The 1st and 2nd respondents are hereby ordered to publish in the Government
      Gazette a list of Government Ministers in the number and manner required under
      the constitution.
   3. Only persons included in such list shall be entitled to receipt of any emoluments
      or entitlements as would accrue to a Minister from the Government or carry out
      the functions of a Government Minister.
   4. It is hereby declared that there shall not be appointed any number of Ministers
      above those catered for in terms of the Constitution of Zimbabwe.
   5. 1st respondent and 2nd respondent shall pay the costs of this application.”

       The facts giving rise to this application are common cause. The composition of
the executive arm of Government is governed by Schedule 8 of the Constitution of
Zimbabwe. The first paragraph of that Schedule provides that the provisions of Schedule
8 shall prevail notwithstanding any other provision to the contrary elsewhere in the
Constitution. Art 20.1.6 (5) of Schedule 8 to the Constitution provides as follows:
       “There shall be thirty one (31) Ministers with fifteen (15) nominated by ZANU
       PF, thirteen (13) by MDC – T and three (3) by MDC M.”

       During the month of February 2009 the first respondent, acting in consultation
with the second respondent, appointed a total of 41 Government Ministers. All the 41
appointees duly took and subscribed before the first respondent, the oaths of office and
loyalty prescribed for Ministers. This number exceeds by 10 the 31 Ministers provided
for in terms of Art 20.1. 6 (5) of Schedule 8 to the Constitution. The third to the tenth
respondents were all appointed after the 31st appointee. Their appointments were thus
made in excess of the 31 Ministers provided for in terms of Schedule 8 to the
Constitution.   For that reason, the applicants aver that their appointments were
unconstitutional and therefore null and void.
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       At the hearing of this application Advocate Uriri (for the respondents) raised a
point in limine as to the jurisdiction of the court to hear and determine what he referred to
as a political question. He argued that Amendment Number 19 to the Constitution, which
inserted Schedule 8 was driven by Parliament’s intention to give effect to the Global
Political Agreement (GPA) entered into by the three major political parties, namely,
ZANU PF, MDC T, and MDC M. In doing so, Parliament was alive to the fact that the
political settlement would not remain static – it could change from time to time. It was
for this reason that the provisions of Schedule 8 were not inserted under s 31 of the
Constitution which would ordinarily deal with the executive structures of Government.
He further argued that Schedule 8 heralds itself as a “Framework for a New
Government”. Article 20 thereof introduces the provisions of the GPA in order to give
that agreement the force of law. Schedule 8 is thus the product of a political settlement
and susceptible to change through political conduct. Schedule 8, according to Advocate
Uriri, raises political rather legal issues. For that reason any dispute arising there from is
a matter for Parliament to resolve. The Courts have no jurisdiction to hear and determine
such dispute.
       Advocate Ochieng (for the applicants) argued to the contrary. While conceding
that Schedule 8 came about as a result of the Global Political Agreement he contended, to
my satisfaction, that once the terms of a political settlement are incorporated into the
Constitution, they become part of our law. They can no longer be regarded as mere
political issues – they become legal issues the import of which this court has jurisdiction
to determine. This court has full original civil jurisdiction over all persons and over all
civil matters in Zimbabwe (section 13 of the High Court Act [Cap 7.06]. I agree with the
applicants when they state that the Constitution lies at the very foundation of the
country’s legal order. To suggest that any of its provisions are merely a political matter
would undermine the rule of law and negate the very foundation of a democratic society.
In support of this unusual proposition, Advocate Uriri cited the following cases: King
and Ors vs Attorneys Fidelity Fund Board of Control and Another 2006 (1) SA 474;
Doctors for Life International vs Speaker of National Assembly 2006 (6) SA 416; United
Democratic Movement vs President of South Africa 2003 (1) SA 506.
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        However, these cases are distinguishable from the present application and in some
respects, support the contention by the applicants that this court’s jurisdiction is
unassailable. In King and Ors vs Attorneys Fidelity Fund Board of Control and Another,
supra, the issue was whether the South African National Assembly, had failed to fulfill
its constitutional obligation to facilitate public participation in the legislative process. In
the present application, the issue is not whether the first and second respondents have
failed to fulfill their constitutional obligation; rather, the issue is whether in fulfilling that
obligation, they have exceeded the mandate given to them in terms of Schedule 8 to the
Constitution by appointing more than 31 Ministers.
        In United Democratic Movement vs President of the Republic of South Africa and
Others 2003 (1) SA 495 what the court dealt with at page 506 and identified as a
“political question” was not the provisions of the disputed legislation themselves but the
debate as to the merits of those provisions. That clearly would not be the concern of any
court. The “merits and demerits” are matters for Parliament to deal with during the
legislative process. In this application the merits or demerits of the provisions of
Schedule 8 to the Constitution are not in issue. It is the interpretation of those provisions
which is at stake. Clearly again the distinction is obvious. The respondents have not
established any basis upon which the jurisdiction of this court is ousted. It was for this
reason that I decided the point in limine in favour of the applicants.
        On the merits the applicants appear to have established a prima facie case for the
grant of the order they seek, assuming a literal construction of the relevant provision is
adopted. I agree with the applicants that Schedule 8 is part of the Constitution by virtue
of the Constitution of Zimbabwe Amendment (No 19) (Act 1 of 2009). I also agree that
the dispute resolution mechanism in the political agreement (GPA) entered into by the
three major political parties is not applicable in resolving disputes arising out of the
provisions of Schedule 8 to the Constitution. The normal rules of statutory interpretation
must apply.
        The respondents have however argued that the provisions of Schedule 8 must be
interpreted broadly and not restrictively. The respondents contend that the provisions of
Art 20 .1. 6 (5) relating to the complement of Ministers are directory rather than
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peremptory.    It is argued that the preamble to Schedule 8 is instructive in the
interpretation of the provisions of sub-paragraph 5. The Schedule is entitled “Framework
for a new Government”. The preamble acknowledges that the three parties have an
obligation to establish a framework for working together in an inclusive government and
that the formation of such a government will have to be approached with sensitivity,
flexibility and willingness to compromise. The preamble also indicates the parties’
commitment to carry the hopes and aspiration of “the millions of our people” and the
parties’ determination to work for conditions for “returning our country to stability and
prosperity”. It acknowledges the need for gender equality and the appointment of women
to strategic Cabinet positions.
       The respondents argue, and I agree, that the objectives and values set out in this
preamble represent the objective for which Schedule 8 was inserted into the Constitution,
and the reason why Schedule 8 was given primacy over the rest of the provisions of the
Constitution. The Schedule therefore represents part of the broader political agreement
among the three political parties. Schedule 8 therefore, it is argued, is an extra-ordinary
provision in the Constitution placed there purely for political expediency. It therefore
stands on an entirely different footing from the rest of the provisions of the constitution.
It is then averred by the respondent that “a court of law having established that a
particular issue before it is of a purely political nature, notwithstanding its inclusion in
the Constitution, the court should refuse to involve itself by prescribing remedy for it”.
Reference is then made to the “political question” doctrine which admittedly, whilst
recognized in the United States, has not been recognized in this jurisdiction. It is further
argued that this principle of interpretation should be followed by our courts, particularly
when any intervention on the usual grounds of unconstitutionality may lead to instability
within the political establishment and the citizenry, thereby defeating the whole purpose
for which the inclusive government was established. As already alluded to earlier, I do
not agree with the respondents in this regard. I am of the view that once a political matter
is inserted into the Constitution, it becomes justiciable. However, any remedy that the
court may impose must take into account any adverse implications of such remedy on the
political order of the day.
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       The respondents further propose that in interpreting the provisions of the
Constitution, the principle of purposive interpretation of statutes should be taken into
account. In terms of that principle, interpretation is not dependent entirely on the literal
meaning of the words used in a statutory provision.            One must look beyond the
manifested intention in order to give full effect to the intention of the legislature. In this
case the purpose of the provision in question was the establishment of a new Government
on the basis of “flexibility, compromise and sensitivity” in line with the spirit underlying
the GPA. At page 36 of the book “Interpretation of Statutes”, the learned author, G.E.
Devenish, is quoted thus:
       “An authentic purposive approach ----- endeavours to interpret a provision of a
       statute in accordance with the purpose or ratio under all circumstances regardless
       of whether there is ambiguity or not”.

The contention of lack of ambiguity by the applicants, argue the respondents, is thus at
variance with this approach and should therefore be rejected.           The purpose of the
enactment takes precedence over ambiguity or lack of it. For these reasons, taking into
account the purpose for which Schedule 8 was inserted into the Constitution and the need
for first respondent to appoint more than 31 Ministers as the practical means of achieving
that purpose, the provision in question should be interpreted as directory rather than
peremptory. For this proposition, the respondents have relied on the case of R v National
Insurance Commissioners 1972 AC 944 where at 1005 D to E it was stated that there
should be “…….a purposive approach to the Act as a whole to ascertain the social ends it
was intended to achieve and the practical means by which it was expected to achieve
them.” The respondents also relied on the case of Crawford and Ors v Borough of
Eshowe and Anor 956 (1) SA 147 wherein it was stated at p 157 H as follows:-
       “No universal rule can be laid down for the construction of statutes as to whether
       mandatory enactment should be considered directory only or obligatory with an
       implied nullification for disobedience. It is the duty of the courts of justice to try
       to get to the real intention of the legislature by carefully attending to the whole
       scope of the statute concerned to be construed”.

Further, in the same case, it is observed that “Provisions of a statute which relate to the
performance of a public duty seem to be generally understood as mere instructions for the
guidance and government of those on whom the duty is imposed, that is to say directory
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only, where the invalidation of actions done in neglect of them would work serious
general inconvenience or injustice to persons who have no control over those entrusted
with the duty and where invalidation would not promote the essential aims of the
legislature”. The respondents also relied on the Namibian case of Government of the
Republic of Namibia v Cultural 2000 1994 (1) SA 487 wherein at p 418 F it was
observed that:-
   “A Constitution is an organic instrument. Although it is enacted in the form of a
   statute, it is sui generic. It must broadly, liberally and purposively be interpreted so
   as to avoid the austerity of tabulated legalism and so as to enable it to continue to play
   a creative and dynamic role in the expression and the achievement of the ideals and
   aspirations of the nation, in the articulation of the values bonding its people and in
   disciplining its Government.”

       In Capital Radio Pvt Ltd v Broadcasting Authority of Zimbabwe 2003 (2) ZLR
236 (5) at p 247 B to D CHIDYAUSIKU CJ made similar pronouncements as follows:-
       “However, there is another different approach to constitutional interpretation.
       This approach is supported by a long line of cases both nationally and
       internationally. In this approach a Constitution is considered a document that is
       sui generis requiring special guidelines of interpretation. These guidelines or
       principles include:

       1. the Constitution must be interpreted as a living instrument.

       2. the Constitution must be given a generous and purposive construction.

       3. the Constitution must be construed as a whole.

       4. the spirit of the Constitution, as reflected in the preamble and, national
          objective and directive principles of State policy, is to guide interpretation by
          the court.

       5. ratified treaties should provide a legitimate guide in interpreting constitutional
          provisions”.

       In Rattigan and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 54 (5) at
57 F to H GUBBAY CJ (as he then was) said –
       “This court has on several occasions in the past pronounced upon the proper
       approach to constitutional construction embodying fundamental rights and
       protections. What is to be avoided is the imparting as narrow, artificial, rigid and
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       pedantic interpretation; to be preferred is one which serves the interest of the
       Constitution, and best carries out its objects and promotes its purpose.”

       Traditionally our courts have been guided by the decision in Sutter v Scheepers
1932 AD 165, wherein the following rules of interpretation were suggested:-
   “(1) The word “shall” when used in a statute is rather to be considered as peremptory,
        unless there are other circumstances which negative this construction.

   (2) If a provision is couched in a negative form, it is to be regarded as a peremptory
       rather than a directory mandate.

   (3) If a provision is couched in positive language and there is no sanction added in
       case the requisites are not carried out, then the presumption is in favour of an
       intention to make the provision only directory.

   (4) If when we consider the scope and objects of a provision, we find that its terms
       would, if strictly carried out, lead to injustice and even fraud, and there is no
       explicit statement that the act is to be void if the conditions are not complied
       with, or if no sanction is added, then the presumption is rather in favour of the
       provision being directory.

   (5) The history of the legislation also will afford a clue in some cases”.

The applicants have argued that the provisions under consideration, being clear and
unambiguous, be given their literal meaning.     But it is clear to me that the trend in the
construction of constitutional provisions is that the courts have increasingly moved away
from the strict interpretation urged by the applicants in favour of a liberal approach.
Indeed the Supreme Court in the Capital Radio case supra has confirmed that this is the
preferred approach nationally and internationally. I agree with the respondents’ analogy
in applying the rules set out in Sutter v Scheepers supra to the present case. They state at
p 29 of their heads of argument as follows:-
       “………it is evident that article 20.1.6 (5) is not couched in the negative form,
       and the presumption, following the observations attributed to Maxwell above in
       relation to the performance of a public duty, should be that the provisions of the
       article should be construed as being merely directory rather than peremptory.
       Further argument in favour of the article being directory exists in that it is
       couched in positive language and there is no sanction added in case the requisites
       are not carried out. There is also no explicit statement that if the numbers
       mentioned therein are not adhered to or complied with then any contrary act is to
       be void”.
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       In addition to the guidelines in the Sutter case supra, I have already indicated that
our courts, nationally and internationally, have embraced a further doctrine in the
construction of constitutional provisions – the doctrine of purposive interpretation. I am
satisfied that it is primarily this doctrine, encompassing a liberal and broad approach to
interpretation rather than the narrow and strict approach, that should guide the court in its
determination of the present matter. There is nothing in the Interpretation Act [Cap 1:01]
that precludes the court from proceeding accordingly.
       If the order that the applicants seek were to be granted, it would destabilize the
government of national unity and cause unnecessary confusion within the body politic
and prejudice the public interest at large. That cannot be said to be consistent with the
intention of the legislature in enacting Schedule 8 to the constitution.         The stated
intention of the legislature was to create a government of national unity in which the
three major political parties would be represented proportionately. It was intended that
this government achieves the objectives set out in the preamble to Schedule 8 and in the
manner and spirit envisaged therein.
       In the Crawford and Ors supra it was observed that “the provisions of a statute
which relate to a public duty seem to be generally understood as mere instructions for the
guidance and government of those on whom the duty is imposed, that is to say as
directory only………” The point is also made therein that where, as in the present case,
it is sought to invalidate the actions of such public officers and the consequences of doing
so would result in serious general inconvenience or injustice, and, where such
invalidation would not promote the essential aims of the legislature, such an order as to
invalidation should not be granted.
       In any event the figures envisaged under Art 20.1.6 (5) have not been
outrageously exceeded given the complexity of Government administration. Further, the
proportion of representation as among the three parties remains largely the same. An
anomaly has admittedly arisen but, in my view, that anomaly does not warrant the grant
of the order sought. In any event this is not an anomaly that the legislature itself cannot
address in one way or another, given its wide powers.
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       Finally, I agree with the respondents that because this application raises an
important legal issue of great public interest, there should be no order made as to costs.
       For these reasons I order as follows:

   1. That the application be and is hereby dismissed in its entirety.

   2. That there be no order as to costs.




Coghlan Welsh & Guest, applicants’ legal practitioners
Attorney General’s Office, respondents’ legal practitioners