CJ Bill fight taken to ConCourt

HARARE - The discord between Zanu PF and the MDC over the controversial passage of the Constitution of Zimbabwe Amendment Bill Number 1 (No.1) took a new twist yesterday with two Members of Parliament from the opposition party approaching the Constitutional Court (ConCourt) seeking to have the Bill set aside.

The Daily News reported yesterday that MDC Harare West MP, Jessie Majome, had written to National Assembly Speaker Jacob Mudenda claiming there were fatal flaws in the figures that constituted the purported two-thirds majority that voted for the passage of the Bill.

Passed by both houses of Parliament last month, the Bill amends Section 180 of the Constitution and gives sole and unfettered discretion to President Robert Mugabe to appoint the chief justice, deputy chief justice and judge president of the High Court of his choice whenever there are vacancies for such post.

The National Assembly passed the Bill by a vote of 182 for and 41 against, while 53 Senators voted for the Bill, and 19 voted against.

The changes now await presidential approval.

The Daily News can report that Majome, along with another legal mind in the MDC, Innocent Gonese, have now escalated their case to the ConCourt, citing irregularities in the number of parliamentarians that voted “yes” for the Bill.

Gonese is the MDC chief whip and MP for Mutare Central.

In their application filed yesterday, the Parliament of Zimbabwe, Mudenda, president of the Senate Edna Madzongwe, Vice President Emmerson Mnangagwa and Mugabe are cited as respondents.

Mnangagwa doubles up as Justice, Legal and Parliamentary Affairs minister.

Majome and Gonese allege that the Bill did not garner enough votes for it to pass through Parliament.

“This is an application in terms of Section 167 (2) (d) of the Constitution of Zimbabwe. The contention in this application is that Parliament failed to fulfil a constitutional obligation and duty. On July 25, 2017 and August 1, 2017, Parliament respectively through the National Assembly and the Senate, passed Constitutional Amendment Bill No.1 of 2017.

“Section 328 (5) states that a Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House,” Gonese said in an affidavit.

“More specifically both the National Assembly and the Senate failed to attain the required two-thirds vote required in terms of the law. It follows that, the passage of the Bill must be set aside,” Gonese said.

He further said that Parliament failed to fulfil its constitutional obligations as required, by failing to conduct a secret vote under circumstances where it was imperative to do so and that it failed to comply with some provisions of the Standing Orders among other issues.

Gonese said Parliament failed by refusing the chief whips to play their oversight roles, adding that the process was chaotic and not procedural.

“When the Constitution became law, no one expressed any unhappiness about Section 180. Certainly not the person of the 4th respondent (Mnangagwa). In fact, during the period from August 2013 and October 2016, many judges were interviewed and appointed by the president using the provisions of Section 180,” Gonese said.

The MPs are now demanding an order declaring that Parliament failed to fulfil the constitutional obligation defined in Section 328 (5) of the Constitution of Zimbabwe.

“Accordingly, the proceedings in Parliament pertaining to Constitutional Bill No.1 of 2017 on July 25, 2017 and August 1, 2017 be and are hereby set aside,” reads part of the order being sought by the two MPs.

A new Constitution produced by an inter-party parliamentary committee agreed by Zanu PF and MDC negotiators before a referendum in 2013 curbed presidential powers by requiring the Judicial Services Commission (JSC) — a panel of mostly senior judges and lawyers — to conduct public interviews for the post of chief justice, reflecting Mugabe’s whittled down authority under the new Constitution.

A University of Zimbabwe law student approached the High Court to stop the JSC interviews, arguing the process was flawed, citing an “incestuous relationship” between the candidates and the interviewing panel.

The High Court ruled in favour of the student, who also wanted Mugabe alone to appoint the chief justice.

But the JSC lodged an appeal at the Supreme Court, invalidating the High Court ruling and forging ahead with the interviews, which were beamed live on State television.

But the government was adamant, and used Zanu PF’s two-thirds majority to amend the new Constitution to reinstate Mugabe’s sole responsibility.

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