Gonese & Anor v Parliament of Zimbabwe & 4 Ors (CCZ 4 of 2020; Constitutional Application 57 of 2017; Constitutional Application 58 of 2017) [2020] ZWCC 4 (31 March 2020)

Key Facts

Issues

• The applicants alleged irregularities in the National Assembly's vote count for the Constitutional Amendment Bill, claiming the required 180-vote threshold (two-thirds of 270 members) was not met. The Court found the revised Hansard and audio recordings confirmed compliance, with 182 'Aye' votes recorded after verification, rejecting claims of absent members being improperly counted.
• The applicants challenged the validity of the Senate's passage of the Constitutional Amendment Bill (No. 1) 2017, arguing it failed to meet the constitutional requirement of two-thirds of the membership (80 Senators) as prescribed by s 328(5). The Court determined that 53 votes (out of 79 present) fell short of the 54-vote threshold required under the Constitution's fixed membership calculation.

Holdings

• The court declared the passing of Constitutional Amendment Bill (No. 1) of 2017 by the Senate invalid due to failure to meet the two-thirds majority threshold under s 328(5) of the Constitution. The proceedings were set aside, and the Senate was directed to conduct a new vote within 180 days.
• The court dismissed the applicants' claim that the National Assembly failed to comply with the constitutional requirements for passing the Constitutional Amendment Bill (No. 1) of 2017, finding the voting process valid and meeting the two-thirds majority threshold.

Remedies

• The Court dismissed the applicants' claims that the National Assembly failed to hold a valid vote or meet the required majority for the Constitutional Amendment Bill, finding no merit in these allegations.
• The Constitutional Court declared the passing of Constitutional Amendment Bill (No. 1) of 2017 by the Senate on 01 August 2017 invalid, as the affirmative votes did not meet the required two-thirds majority threshold. The declaration is suspended for 180 days to allow the Senate to re-vote.
• The applicants were ordered to bear their own costs, as the Court found no constitutional obligation violation in the National Assembly proceedings.
• The Senate was directed to conduct a new vote on the Constitutional Amendment Bill in accordance with the Constitution's procedures within 180 days of the judgment. Failure to comply would make the invalidity declaration final.

Legal Principles

• The Constitution is the supreme law of the land, binding on all persons and institutions. Compliance with constitutional procedures for amendments is essential to uphold the rule of law, ensuring that no branch of government acts outside the law.
• The court applied a purposive interpretation of s 328(5) of the Constitution, focusing on the objective of protecting the Constitution's rigidity and ensuring amendments reflect broad public consensus. This approach prioritized the constitutional intent over literal or procedural technicalities.
• The judiciary's role in reviewing legislative actions under the Constitution was affirmed. The court highlighted that its duty is to enforce constitutional limits on Parliament's power to amend the Constitution, maintaining the balance of power among state organs.

Precedent Name

• S v Makwanyane and Another
• Mike Campbell (Pvt) Ltd and Anor v The Minister of National Security
• McCawley v R
• Lawrence v State Tax Commission of Mississippi
• Brown v Maryland
• Commission for the Implementation of the Constitution v Parliament of Kenya
• Gauteng Provincial Legislature v Killian

Cited Statute

Judge Name

• Malaba CJ
• Bhunu JCC
• Garwe JCC
• Hlatshwayo JCC
• Gwaunza JCC
• Mavangira JCC
• Guvava JCC
• Gowora JCC
• Patel JCC

Passage Text

• The applicants cannot deny the correctness of the audio recording without themselves having correlated the manual recording and the audio recording. One cannot deny the correctness of a superior recording mechanism on the strength of a document prepared using a potentially inaccurate method of recording without first verifying the contents of the more superior method of recording.
• Eighty is not a multiple of three. The next multiple of three after 80 is 81. One-third of 81 is 27, and two-thirds of 81 is 54. Two-thirds of 80 is 54 in terms of s 344(3) of the Constitution.
• The provision under which the Constitution is amended does not relate to the presence of the Members. Its provisions are an exception referred to in s 138(1) of the Constitution. It means that in terms of s 328(5) of the Constitution the controlling concept is the membership of the House, which relates to the total number of persons the House is declared by the Constitution to consist of.