BULAWAYO High Court judge Justice Nokuthula Moyo has ruled
that she has no power to stop a constitutional process that is mandated by the
supreme law of the country.
Justice Moyo made the remarks as she dismissed an
application by Habakkuk Trust, a local non-governmental organisation, which
sought to have last week’s Parliamentary hearings on the proposed
Constitutional Amendment No. 2 Bill suspended due to Covid-19.
Habakkuk Trust, through its lawyers, Job Sibanda and
Associates, filed an urgent chamber application at the Bulawayo High Court
seeking an order directing Parliament to postpone the public hearings until
Covid-19 is over.
In papers before the court, Clerk of Parliament Mr Kennedy
Chokuda, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi and
the Parliament of Zimbabwe were cited as respondents.
Habakkuk Trust argued that the respondents were being
unfair and unreasonable by risking the lives of the public through holding the
meetings without putting measures in place to protect participants from
Covid-19 during the hearings.
The organisation also contended that discussions would not
bring a desired outcome as only 50 people or less would be allowed to attend
due to the Covid-19 national lockdown regulations.
Justice Moyo said all the three arms of the State were
obliged to uphold the constitutional provisions of the country’s supreme law.
“We do not have the power to suspend constitutional
processes per personal view, we are not allowed. I have not been favoured by
the applicant with any case law authority that is precedent for suspending the
Constitution thus applicant has not shown me that I do have the power to stop
constitutional processes,” she said.
Justice Moyo said a court cannot stop or suspend a constitutional
process except where the Constitution itself provides for such a scenario.
She said the public hearings were lawful in terms of the
Covid-19 lockdown regulations.
Justice Moyo said Habakkuk Trust failed to present a
well-grounded apprehension of the harm it was likely to suffer as a result.
The judge said the processes can only be stopped upon
reasonable grounds that fly in the face of Covid-19 prevention and safety
measures.
“Applicant seems to want this court to assume that the mere
fact that we are in the middle of a pandemic means that the public gatherings
cannot be held. Applicant should have gone further to show how being in the
middle of a pandemic is inconsistent with the holding of the public gatherings
in a practical sense,” said Justice Moyo.
“I hold the view that applicant should have sought further
details from respondents on how Covid-19 safety measures will be observed. In
this matter, applicant has put the cart before the horse.”
The public hearings on the Constitutional Amendment No.2
Bill ran from Monday to yesterday across the country. In Bulawayo, the hearings
were conducted on Wednesday.
Last year, the Government gazetted the Constitutional
Amendment No.2 Bill, which seeks to introduce at least 27 amendments to the
constitution.
The public hearings were initially scheduled to take place
from March 29, to April 3, 2020 but were suspended together with all
Parliamentary activities due to the Covid-19 pandemic.
In his founding affidavit, Habakkuk Trust chief executive
Officer, Mr Dumisani Nkomo wanted an order interdicting the respondents from
holding public hearings until measures had been put in place to contain and
prevent the spread of Covid-19.
“The basis of the application is that the respondents have
invited members of the public to attend such meetings at venues throughout the
country beginning on 15 June until 19 June 2020 when Zimbabwe is under lockdown
and public gatherings of more than 50 people is prohibited,” he said.
Mr Nkomo said the fact that public hearings are important
and a constitutional requirement, it is unreasonable for them to be held in the
middle of a pandemic and during a national lockdown.
Section 328 of the Constitution provides that a
Constitutional Bill must, before it is presented in the Senate or National
Assembly, be advertised in the Gazette by the Speaker of Parliament for a
period of at least 90 days.
Immediately after such notice has been given, Parliament
must invite members of the public to express their views on the proposed Bill
through public hearings and written submissions. “While the process of amending
the Constitution in terms of Constitutional Amendment No. 2 cannot be stopped
forever, I submit that because of its importance it must await the
normalisation of the situation in the country,” said Mr Nkomo.
The respondents, through their lawyers Chihambakwe, Mutizwa
and Partners, opposed the application, arguing that they were embarking on a
process dictated upon them by the Constitution.
They argued Statutory Instrument 136/2020 amended the
initial regulations to allow for public hearings conducted by Parliament.
“Section 4 (k) of S1136/20 amends section 5 of the previous
lockdown regulations by stipulating that not more than 50 adult individuals
gathered for the purpose of a public hearing conducted by a portfolio or other
committee of Parliament for as long as masks are worn and social distancing
rules are followed as well as disinfection of the area within which such a
gathering is conducted are exempted,” argued the lawyers. Chronicle
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